Court File and Parties

Court File No.: 034/20 Date: 2020-12-18 Superior Court of Justice – Ontario – Divisional Court

Re: Margulis v. E. Manson Investment Limited

Counsel: Mr Margulis, self-represented appellant / tenant Douglas Levitt, for the respondent / landlord

Before: D.L. Corbett J.

Date: December 18, 2020

Case Management Endorsement

D.L. Corbett J.

[1] This endorsement confirms a case management teleconference held December 11, 2020.

[2] The tenant has not paid any rent since December 2018, so arrears have accrued for two years.

[3] Tenant takes the position that there are no rent arrears because the unit is not habitable. He says that he has not, in fact, been living in the unit for two years.

[4] If tenant is not living in the unit, providing vacant possession to the landlord will cause little prejudice to the tenant. If landlord is precluded from re-letting the unit in the meantime, tenant’s ability to preserve the tenancy is maintained (though the utility of this preservation is disputed, that may safely be left for another day, on a full record).

[5] Tenant says that his personal property is still in the unit. The court can protect the tenant’s interest in this property by giving him a reasonable opportunity to remove it himself. Tenant is not entitled to free storage of his property by the landlord, or to occupy a dwelling unit and preclude the landlord from letting it to someone, to continue to store the tenant’s property.

[6] Tenant says that evidence of the uninhabitable condition of the premises may be lost if the landlord is permitted to re-enter. The tenant can take pictures, videos, and otherwise document the condition of the property before the landlord retakes possession, and indeed has had two years in which to do so.

[7] Tenant argues that it is unfair that the court should lift the stay of eviction ordered by the Landlord and Tenant Board so summarily. The tenant’s conduct in this matter has completely disregarded the interests of the Landlord, and his position is untenable: that he may retain his tenancy for years, while paying no rent, and taking no steps to secure disputed rent.

[8] Since the tenant is not living in the premises and has not lived there for two years, his immediate concern of having a place to live is not in issue. He may remove his property at the limited cost of moving it and storing it in the short term. If the tenant is really interested in continuing with his tenancy and litigating the underlying issues, in January the court can hear from both sides on appropriate terms for this appeal to proceed, including interim payments that should be made in lieu of rent during any period the landlord is precluded from re-letting the unit, a schedule for prompt exchange of appeal materials and return of the appeal for an argument on the merits. The court will be able to restore the tenant to his unit after the appeal if he prevails in the appeal. These terms fairly balance the interests of the parties in the short-term and provide much needed incentive for both sides to move forward with the case.

[9] On this basis, order to go:

(a) That the landlord may re-enter the unit and take possession of it as of 12:01 am, December 29, 2020;

(b) That tenant may remove his possessions from the unit at any point up to 11:59 pm, on December 28, 2020;

(c) That the tenant be prohibited from being at or returning to the premises from and after 12:01 am, December 29, 2020;

(d) That if any tenant’s possessions remain in the premises as of 12:01 am, December 29, 2020, the landlord shall deal with that property in a manner consistent with landlord’s obligations respecting tenant’s property upon eviction under the Residential Tenancies Act;

(e) That the landlord is ordered not to re-lease the premises pending further order of this court. This order does not preclude the landlord from cleaning and making any repairs it wishes to make to the premises;

(f) That the parties appear at a further case management teleconference with the court on January 15, 2021, at 11:00 am, to address:

(i) A schedule for completion of all steps required for hearing of the appeal on the merits;

(ii) To consider any terms that ought to be imposed pending the appeal including:

(1) Whether the landlord should be precluded from re-leasing the premises pending hearing of the appeal;

(2) Whether the tenant should be required to pay ongoing rent or to make any payments on account of arrears, in return for an order precluding the landlord from re-leasing the premises pending determination of the appeal;

(iii) To address any issues respecting tenant’s property removed from the unit by the landlord in accordance with this order, including the costs of removal, the costs of storage, or any arrangements required for ongoing storage of this property

(iv) Any other issues identified by the parties (the parties are asked to advise the court of any other issues they have for this teleconference by email by January 13, 2021).

[10] The landlord may, but is not required, to use the Sheriff to enforce the eviction order of the Landlord and Tenant Board and this court’s order. Alternatively, the landlord may use a private bailiff or seek police assistance to enforce this order as of 12:01 am, December 28, 2020.

[11] After the case conference in this matter but before release of this written endorsement, the tenant contacted the Divisional Court office to advise that, on legal advice, he wishes to move to vary or set aside this court’s order. The tenant is entitled to seek a review of this court’s order before a panel of three judges of the Divisional Court, but such a review cannot be scheduled prior to the dates stipulated in this court’s order. Such a review could be effective to restore the tenant to possession of the premises, but not to prevent the eviction from being carried out after December 28, 2020. If the tenant believes that this is unfair he may move for a stay of this court’s order, which this court will expedite for hearing by December 24, 2020. However, if the tenant does seek such a stay, he should serve his motion materials as soon as possible to give the landlord time to respond and the court time to schedule the stay motion for some time on the 24th of December. The tenant should understand that saying he wants to bring a motion, or saying he wants to review this court’s order, does not have the effect of staying this court’s order. Unless this court’s order is ordered stayed by court order, the order is in force and may be enforced by the landlord.

[12] As I told the parties during the teleconference, the court’s order was effective from the moment it was stated on December 11, 2020. This written endorsement confirms the court’s order and is effective from the time that an unsigned copy is sent to the parties by email; a signed copy will be provided to the parties in due course.

D.L. Corbett J. Date: December 18, 2020