Imtazur Rahman v. Khurram Jahangir and Nadia Khurram

COURT FILE NO.: CV-21-00655032-0000 DATE: 2021-07-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IMTAZUR RAHMAN Applicant

– and –

KHURRAM JAHANGIR and NADIA KHURRAM Respondents

COUNSEL: Ronald Lachmansingh and Katherine Lee, for the Applicant No one appearing for the Respondents

HEARD: June 11, 2021

REASONS FOR JUDGMENT

VERMETTE J.

[1] The Applicant, Imtazur Rahman, is the owner of a property located on Park Lane Circle, in the Bridle Path neighborhood in Toronto (“Property”). The Respondents, Khurram Jahangir and Nadia Khurram, were the tenants of the Property. They moved out of the Property on April 5, 2021.

[2] As set out in more detail below, as a result of the Order made by Justice Vella in this matter on April 8, 2021, the only issue before me on this Application is the issue of damages. At the hearing of this matter on June 11, 2021, I granted the relief sought by the Applicant (i.e. $122,500.00 for unpaid rent, $1,324.60 for unpaid utilities plus prejudgment interest), with reasons to follow. These are my reasons.

Factual Background

[3] On July 1, 2019, the previous owner of the Property, Ms. Wendy Xu, entered into a lease agreement with the Respondents with respect to the Property (“Lease Agreement”). The Lease Agreement included the following terms, among others:

a. The Lease Agreement was for a term of one year, commencing August 1, 2019.

b. The Respondents were to pay rent monthly in the amount of $15,000.00. The rent was payable in advance on the first day of each and every month during the currency of the term.

c. Upon acceptance of the Lease Agreement, the Respondents were to pay to Ms. Xu’s agent $90,000.00 to be applied against the first and the last five months of rent.[^1] The Respondents also had to pay a $2,000.00 deposit before occupancy on August 1, 2019.

d. The Respondents agreed to provide the balance of the rent (i.e. six months) by September 30, 2019 in the form of a certified cheque or bank draft.

e. The Respondents were responsible to pay the costs of the following services: gas, electricity, water and sewerage charges, cable TV, telephone and Internet.

f. The Respondents, if not in default under the Lease Agreement, had the option, by written notice given to Ms. Xu at least 60 days before the end of the term, “to renew the lease for a further year term on same terms and conditions except rental.”

[4] The relationship between Ms. Xu and the Respondents deteriorated quickly. The evidence before me is that the Respondents have not paid any rent since September 2019. On September 25, 2019, the Respondents commenced two applications against Ms. Xu before the Landlord and Tenant Board (“LTB”): a T2 Application about Tenant Rights and a T6 Tenant Application about Maintenance (together, “LTB Applications”). In the LTB Applications, the Respondents allege illegal entry, harassment, withholding a vital service by Ms. Xu and interference with the Respondents’ reasonable enjoyment of the Property, and they claim, among other things, an abatement of rent, damages and mandatory orders against Ms. Xu.

[5] On December 11, 2019, Ms. Xu commenced her own application before the LTB to evict the Respondents for non-payment of rent and to collect rent.

[6] On January 22, 2020, the Respondents amended their LTB Applications. As a result of the amendments made, the Respondents’ T6 Application contains the following request in a section entitled “Remedy 9: Board to order other remedies”: “Convey our intention to the landlord formally as per the provision in our rental contract of our intention to extend our rental of the property to a second year as well.” [Emphasis in the original.]

[7] The applications commenced by Ms. Xu and the Respondents have not been determined by the LTB and were adjourned as a result of the COVID-19 pandemic. However, I note that on November 5, 2020, Ms. Xu obtained a default judgment in the Superior Court of Justice against the Respondents in the amount of $90,000.00, i.e. the equivalent of 6 months of rent. There is evidence before me that Ms. Xu was seeking to enforce her judgment in February 2021 by way of Notice of Garnishment.

[8] On May 18, 2020, the Applicant executed an Agreement of Purchase and Sale to purchase the Property from Ms. Xu, with a closing date of July 31, 2020. The Applicant’s intention was to make the Property his primary residence.

[9] On June 4, 2020, Ms. Xu served the Respondents with a Form N12, “Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit”. The Notice required the Respondents to vacate the Property by August 31, 2020. The Respondents did not do so. They have also failed to pay any rent to the Applicant since August 2020.

[10] On October 30, 2020, the Applicant served the Respondents with a Form N4, “Notice to End your Tenancy For Non-payment of Rent”, and another Form N12, “Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit”. The Form N12 required the Respondents to vacate the Property by December 31, 2020. The Respondents did not do so and continued not to pay any rent.

[11] On November 2, 2020, the Respondents sent an e-mail to counsel for the Applicant in which they took the position, among others, that the “rental period as per our rental agreement does not end until July 31, 2021”. [Emphasis added.] The Respondents took the same position in a letter dated November 25, 2020 in which they also appear to claim that notice of renewal of the lease was given to Ms. Xu when the Respondents stated their intention to extend the rental of the Property to a second year in their LTB Applications. Later on November 25, 2020, the Respondents took a different position: they stated that their lease did not expire until July 31, 2025 as they had agreed with Ms. Xu to extend the lease for 5 years from August 1, 2020. However, there is no signed written agreement evidencing a lease expiring on July 31, 2025. The Lease Agreement is the only signed written agreement with respect to the Property.

[12] In a letter to the Applicant’s counsel dated December 16, 2020, the Respondents claimed that they were not obliged to pay rent as a result of: (i) a Notice of Attornment that had been issued by the City of Toronto for unpaid property taxes, and (ii) a conversation that the Respondents had with the Bailiff identified in the Notice of Attornment. Following inquiries made by counsel for the Applicant, the Bailiff sent the following letter to counsel for the Applicant:

S. Wilson & Co. Bailiffs Limited, (hereinafter referred to as Wilson, the bailiff or Wilson Bailiffs), has been duly appointed by the Tax Collector for the City of Toronto to recover the 2018 municipal realty taxes, penalties/interest, bailiff fees and HST, (hereinafter referred to collectively as the, realty tax arrears, arrears or tax arrears), for the above noted residential property.

You have advised that the tenants are in a rent payment dispute with the property owner and you have asked for clarification of matters, detailed as follows.

While we are bound by confidentially legislation, we acknowledge you act for the registered property owner who is entitled to such information.

On direction of the City of Toronto and under the City of Toronto Act, an assistant bailiff with Wilson Bailiffs, served a Notice of Attornment of rent to the tenant's son, Mr. Khurram Jahangir, on November [23], 2019 at 11:03 am in the forenoon.

I confirm that the tenant made no monthly rent payments to our office and the Notice of Attornment was retracted as the full realty tax arrears were paid to our office by certified funds by the solicitor acting for the vendor, Mr. Steve Chan, on July 31, 2020, due at the time, from what we were told were the proceeds of sale of the subject property.

As a courtesy I include to you a photo copy of the file copy of the Notice of Attornment initially served and the notice of retraction sent to the tenant on receipt of the aforementioned payment.

[13] The notice of retraction enclosed with the letter is dated August 6, 2020.

[14] By letter dated January 10, 2021, counsel for the Applicant advised the Respondents that they would be making an application to the Superior Court of Justice in relation to the Lease Agreement. The Respondents responded on the same day and stated that “[w]e have all the evidence ready to present our case effectively.”

[15] In or about February 2021, the Respondents added the Applicant as a party to their LTB Applications, and obtained a hearing date of March 8, 2021. However, the Respondents did not proceed with their LTB Applications on that date. They requested and were granted an adjournment. No date has been fixed for the hearing of the applications of the Respondents and Ms. Xu before the LTB.

[16] Since his acquisition of the Property, the Applicant has spent approximately $100,000.00 in making improvements and having other interior and exterior work performed at the Property, including roofing work and landscaping. As a result of the Respondents’ failure to vacate the Property, the Applicant and his family have had to find alternate accommodation.

[17] The City of Toronto has confirmed in writing to the Applicant’s counsel that as of September 21, 2020, there were no outstanding work orders against the Property.

Procedural Background

[18] The Notice of Application in this matter was issued on January 18, 2021. The relief sought therein includes a declaration that the Lease Agreement was terminated effective August 31, 2020, a mandatory order requiring the Respondents to immediately vacate the Property, and damages.

[19] On January 19, 2021, counsel for the Applicant and the Respondents appeared before Justice Myers in Civil Practice Court. Justice Myers wrote the following endorsement:

This is an application to terminate a residential lease and claim damages exceeding 35,000.

The property owner says that the tenants have no lease and are paying no rent. The tenants say they have a lease and that they pay rent to the City pursuant to an attornment of rents. The tenants also have two outstanding applications at the Landlord and Tenant Board since November, 2019 which they are patiently awaiting. They would like this matter combined with those. The property owner is less patient.

Dr. Jahangir is an emergency room physician. He says that he is too busy with COVID to respond. He also wishes to represent himself and his spouse rather than retaining a lawyer. He says that the matter is complex with over 1,000 pages of paper. He asks for at least six months to respond.

Intentionally or not, the tenants sound like they are stalling. Dr. Jahangir's occupation is extremely important and his efforts are very much appreciated. The house is a luxury home of high value. A residential landlord and tenant matter is not complex for a lawyer. Although daunting to a self represented litigant, 1,000 documents is routine for a lawyer.

It is vital for Dr. Jahangir to focus his attention on his medical practice. That makes it even more important that he seek legal counsel. Moreover, Dr. Jahangir is not entitled to represent his spouse before this court. Only a lawyer may represent another person in court (unless leave is obtained). It is obvious that Dr. Jahangir is far too busy to be an acceptable representative to protect and advance the interests of his spouse in this matter on a timely basis.

The schedule set out below is ordered. […]

The application is schedule [sic] for April 8, 2021 for three hours.

Mr. Lachmansingh is directed to send a copy of this endorsement to the tenants. [Emphasis in the original.]

[20] The timetable ordered by Justice Myers provided, among other things, that the Respondents’ record be delivered by February 26, 2021, and that their Factum be delivered by March 26, 2021.

[21] The parties appeared before Justice Myers again on January 27, 2021 with respect to issues that had arisen in relation to an inspection of the Property that was needed to replace insurance that was soon expiring. In his endorsement on that day, Justice Myers stated the following, in part:

I am not commenting at all on the likely outcome when I say, again, that the tenants need a lawyer. They do themselves a disservice appearing on their own behalfs. They may be experts in their respective fields. But they do not have the experience, background knowledge, or skillsets to conduct civil litigation effectively in the Superior Court of Justice for themselves. That is not an insult. [They] are not practising lawyers. There is no reason for them to know what a commercial litigation lawyer has spent a career learning. In fact, during both hearings, the tenants have said things that could hurt their own case. A lawyer will give them objective and dispassionate advice and will be able to hold a dialogue with the landlord’s lawyer that does not deteriorate into name calling and accusations.

If the parties cannot communicate well with each other, then they need professional representatives who will do so for them.

[22] As set out above, the Application was scheduled to be heard on April 8, 2021. The matter came before Justice Vella who released the following endorsement on that day:

[1] This application was scheduled to be heard today by order of Myers J. made in Civil Practice Court (CPC) on January 19, 2021. Mr. Lachmansingh attended at CPC on behalf of the applicant, and Mr. Jahangir attended on his own behalf. Myers J. also established a timetable for the pre-hearing steps.

[2] Today, the respondent, Nadia Khurram (Jahangir) appeared on her own behalf, and later was joined by her daughter. She advised that her husband, Khurram Jahangir, is an emergency doctor who was called into work this morning, and hence could not attend in person. Ms. Jahangir asked if their lawyer (in another matter) would be permitted to appear as a friend of the court.

[3] Mr. [James] Evans, a lawyer, joined this virtual proceeding and asked if he could appear as a friend of the court. This was objected to by Mr. Lachmansingh. I declined to appoint Mr. Evans as a friend of the court. However, I did permit him to address the court on behalf of the respondents as agent for today's appearance.

[4] Mr. Evans requested an adjournment to permit the respondents to retain a lawyer. No responding materials have been filed in response to this application.

[5] Mr. Lachmansingh objected to the request. He submitted that this was a further stalling tactic by the respondents, consistent with Myers, J.’s observations when the respondents asked for 6 months to prepare a response and hire a lawyer. Myers J. considered the same argument made this morning by Mr. Evans relating to COVID 19, and Dr. Jahangir’s important role as an emergency room doctor and in the I.C.U. during this pandemic, and declined to give the respondents the requested 6 month period, finding that 3 months would be sufficient given the nature of this application and its urgency.

[6] The respondents did not adhere to the timetable and have not been able to hire a lawyer for this application, though they advised they have made attempts, and had actually hired a lawyer. However, that arrangement did not work out.

[7] After hearing submissions, I determined that it was important that this proceeding be heard on the full merits, and that the respondents be given one further opportunity to prepare and file responding material and hire a lawyer.

[8] Importantly, I was advised that the respondents moved out of the house on or about April 5, 2021 and have no intention of returning. Therefore, this matter is not as urgent as it was when the parties appeared before Myers J.

[9] However, the interests of the respondents in having an opportunity to present their case must be balanced with the interests of the applicant who did abide by the timetable, and who is seeking vacant possession of the home he purchased several months ago from the former landlord of the respondents. It is also alleged that the respondents have paid no rent whatsoever for the period of their occupancy since at least the time the applicant became owner. On the other hand, this is a first-time request for an adjournment.

[10] The most urgent issue that was before Myers J. was the fact that the respondents were still occupying the subject house.

[11] Accordingly, I am granting a short-term adjournment on the following terms that balances the interests of the parties and is an efficient way to proceed in the interests of justice:

(a) On consent of the parties, through their lawyer and agent respectively, I am issuing a declaration that the applicant shall have vacant possession of the [Property];

(b) I am further issuing a declaration that the lease agreement between the applicant and the respondents was terminated effective August 31, 2020, without prejudice to the respondents' ability to seek a variance or challenge this declaration at the hearing of the application if and only to the degree that the validity of the termination is relevant to the determination of the remaining issues in the application (which relate to damages);

(c) The hearing date is fixed for June 11, 2021 for 2.0 hours on the remaining issues relating to the applicant's request for damages as set out in the Notice of Application.

[12] The following new timetable is set for the remaining steps leading to the hearing:

(i) The respondents must deliver their responding motion record (including affidavits) to the applicant’s lawyer by no later than May 7, 2021;

(ii) Any reply record is to be delivered by the applicant to the respondents by May 14, 2021;

(iii) Cross examinations, if any, to be completed by May 21, 2021 (to be conducted virtually);

(iv) The respondents must deliver their factum by June 7, 2021.

While this may appear to be a tight schedule, it takes into account the fact that the respondents have had the application record for many weeks and have been on notice of this hearing since the appearance before Myers J. on January 19, 2021. The respondents have been preparing for this matter and advised they have gathered 1,000 pages in this effort. The issue on the application appears fairly straight forward in terms of it being, essentially, a liquidated damages claim focused on alleged rent arrears and utility bills in a residential tenancy context.

[13] Costs thrown away as a result of today's attendance is fixed in the sum of $2,500.00 in favour of the applicant against the respondents, and payable on a joint and several basis. The costs are to be paid by no later than June 10, 2021 and provided to the applicant's lawyer. This was a last-minute adjournment request. The respondents did not adhere to any part of Myers J.’s timetable. The applicant appeared today ready to argue this matter and, as it was, the adjournment request took nearly 2.0 hours to resolve.

[14] I was asked to make the timetable and hearing date peremptory against the respondents. While there was significant merit to this request, I do not feel it appropriate to issue this further term when the respondents have yet to retain a lawyer.

[23] As they had done with the timetable ordered with Justice Myers, the Respondents also failed to comply with the timetable ordered by Justice Vella. On June 8, 2021, i.e. after the dates ordered for the delivery of their responding record and factum and only three days before the hearing of the Application, the Respondents sent an “urgent request for adjournment” (“June 8, 2021 Form”) which reads as follows:

We urgently request the motion/application be adjourned for 6 months at least due to the following reasons: (1) Khurram Jahangir, one of the defendants, is suffering with severe mental distress from the immeasurable trauma in dealing with on-going devastating Covid-19 pandemic as a front-line emergency and critical care practitioner. Meanwhile, Nadia Khurram is also suffering from immense personal trauma as her father recently passed away from Covid-19 in the UK and she intends to stay behind in the UK for the next 3-6 months at least to look after her mother who is suffering from Breast Cancer, and (2) There are several critically important material facts in dispute in this matter and the parties involved do not at all agree what actually happened, requiring testimony of certain material witnesses. It is therfore [sic] humbly requested that this matter be proceeded by way of an Action instead of an Application.

[24] A Toronto Star newspaper article dated May 1, 2021 was attached to the June 8, 2021 Form.

[25] Because the request for an adjournment was not on consent, the Respondents were advised to appear on June 11, 2021, as scheduled, to present their request for an adjournment, and to be prepared to proceed if the request for an adjournment was denied.

[26] On June 9, 2021, more than a month after the date ordered by Justice Vella for the delivery of responding materials, the Respondents sent to the Applicant’s counsel and uploaded onto CaseLines an affidavit of Dr. Jahangir that reads as follows:

1. I, Khurram Jahangir, am the co-respondent in this matter and, as such, have knowledge of matters stated herein.

2. I am an emergency medicine doctor currently employed and working in several Toronto Area hospitals. I have been deployed on the literal front lines of the COVID pandemic response, am regularly physically exhausted, and have no spare time.

3. I am the co-applicant in a Landlord and Tenant proceeding bearing file numbers TNT-20147-19 and TNT-20148-19. These cases deal with the exact same subject matter as this Application.

4. The cases before the Landlord and Tenant Board remain pending - having been adjourned and slow-tracked due to COVID 19.

5. I have attached a draft affidavit which I have prepared, but not finalized, that I intend to use in this matter. Due to the nature of my duties during a pandemic, I have not been able to apply myself to this matter to be able to answer this case in such a short time.

6. I make this affidavit in response to this application and for no improper purpose.

[27] The affidavit attaches a draft, unsworn affidavit of Dr. Jahangir (“Draft Affidavit”) which contains legal arguments, disparaging and vexatious statements, speculation, allegations of fabrication and lies, and a large amount of evidence that is irrelevant to the issues before me, i.e. issues related to unpaid rent and damages. The great majority of the documents uploaded onto CaseLines by the Respondents deal with their issues with Ms. Xu. The Draft Affidavit states that Ms. Khurram agrees with the contents of the Draft Affidavit, but there is no evidence of Ms. Khurram before me. The Draft Affidavit argues that the issues raised in the Application would be resolved during a hearing before the LTB on March 8, 2021, but, as set out above, the March 8, 2021 hearing did not proceed and was adjourned at the request of the Respondents.

[28] I refuse to consider the Draft Affidavit as evidence on the Application. It does not constitute proper evidence, is largely inadmissible and does not comply with the timetable ordered by Justice Vella. The attempt to file this unsworn evidence replete with serious allegations against the Applicant and his lawyers only two days before the hearing of the Application is unacceptable and completely unfair to the Applicant. Further, and in any event, the Draft Affidavit does not contain any evidence that the Respondents have paid rent to anyone since the Applicant became the owner of the Property.

[29] As of June 11, 2021, the Respondents had yet to pay to the Applicant the $2,500.00 costs award ordered by Justice Vella, which was ordered to be paid by June 10, 2021.

[30] The Respondents did not appear before me on June 11, 2021, nor did anyone on their behalf.

Discussion

a. The Respondents’ request for an adjournment is denied

[31] The Respondents did not appear before me on June 11, 2021 to present their request for an adjournment. The June 8, 2021 Form sent by the Respondents does not state that the Respondents were unavailable on June 11, 2021. While it appears that Ms. Khurram may be in the United Kingdom, she could have participated in the hearing given that it took place via videoconference.

[32] The grounds raised in the June 8, 2021 Form are unsubstantiated. Moreover, they are largely the same as the grounds raised before Justices Myers and Vella and rejected by both. This Application was commenced in January 2021. The Respondents initially asked for 6 months to respond to the Application. While this request was rejected by Justice Myers, the Application was ultimately heard approximately 5 months after it was commenced as a result of the adjournment granted on April 8, 2021. Despite the time that has elapsed and the adjournment that was granted on April 8, 2021, the Respondents have yet to retain a lawyer and to properly respond to the Application, and they are again seeking a 6-month adjournment. This is not reasonable.

[33] On April 8, 2021, Justice Vella agreed to grant the adjournment requested by the Respondents so to give them “one further opportunity to prepare and file responding material and hire a lawyer.” They did neither. In particular, there is no evidence that the Respondents made any effort to retain a lawyer and there has been no suggestion that the Respondents do not have the means to retain a lawyer. At the first attendance in this matter before Justice Myers, Dr. Jahangir said that he wanted to represent himself and his spouse rather than retaining a lawyer. Despite being urged to retain a lawyer a number of times and being advised that he could not represent his wife, it appears to me that Dr. Jahangir has no intention to retain a lawyer in this matter.

[34] Like they did before the hearing scheduled for April 8, 2021, the Respondents made a last-minute request for an adjournment weeks after they failed to comply with a court-ordered timetable. In addition, they failed to pay costs that were ordered to be paid by June 10, 2021. This conduct cannot be condoned.

[35] The observation made by Justice Myers on January 19, 2021 that the Respondents “sound like they are stalling” has been substantiated. Indulgences have been granted to the Respondents without any progress being made. The Applicant is entitled to have his Application determined and the stalling has to stop.

[36] While Dr. Jahangir’s occupation is a very important one during a pandemic, it does not entitle him to ignore court orders and the law and to live in someone else’s house for an extended period of time without paying any rent.

[37] Accordingly, the Respondents’ request for an adjournment is denied.

b. This Court has jurisdiction to determine the Application

[38] In various correspondence (and in the Draft Affidavit), the Respondents have repeated their view that the LTB, not this Court, should deal with the parties’ disputes in the context of the Respondents’ LTB Applications. However, it is clear that this Court has jurisdiction to determine this Application.

[39] Subsections 207(1) and (2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) provide as follows:

Monetary jurisdiction of Board

207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.

Same

(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

[40] The amount claimed by the Applicant, including the amount of unpaid rent in issue, exceeds the LTB’s monetary jurisdiction. Therefore, this Court has jurisdiction to grant the relief sought in this Application: see Kaiman v. Graham, 2009 ONCA 77 at paras. 11-12, 14-15.

c. The Lease Agreement was not renewed

[41] In her Order dated April 8, 2021, Justice Vella ordered that the Lease Agreement was terminated effective August 31, 2020 without prejudice to the Respondents’ ability to seek a variance or challenge this declaration at the hearing of the Application if and only to the degree that the validity of the termination was relevant to the determination of the remaining issues in the Application, which relate to damages.

[42] As the Respondents did not appear at the hearing of the Application, this order/declaration was not challenged. Nevertheless, I make the final findings that the Lease Agreement ended on July 31, 2020 and was not renewed and that, as a result of the Form N12 served by Ms. Xu, the Respondents’ tenancy was validly terminated effective August 31, 2020.

[43] The evidence before me is that the Respondents were in default under the Lease Agreement as of the fall of 2019 as they failed to pay rent to Ms. Xu. As a result, they could not exercise the option to renew the lease for a year. Further, and in any event, I find that the Respondents failed to exercise the option to renew in a clear, explicit, unambiguous and unequivocal manner, as required: see Premium Properties Limited v. Subway Franchise Restaurants of Canada, Ltd., 2014 ONSC 3150 at paras. 11-16 and 2324702 Ontario v. 1305 Dundas, 2019 ONSC 1885 at paras. 41-42, 45. A mere expression of an intention or desire to exercise an option is not sufficient – the option must actually be exercised and the optionee must bind itself unequivocally as a contracting party.

[44] The Respondents have not claimed that they sent a written notice to Ms. Xu exercising the option to renew. Rather, they appear to rely exclusively on the following statement included in one of their LTB Applications in a section entitled “Remedy 9: Board to order other remedies”: “Convey our intention to the landlord formally as per the provision in our rental contract of our intention to extend our rental of the property to a second year as well.” [Emphasis in the original.] This statement only conveys an intention to exercise the option to renew, it does not exercise the option. Further, this statement is couched as a “remedy” sought from the LTB, and such “remedy” was not granted by the LTB 60 days before the end of the term of the Lease Agreement. Thus, this statement and request for a “remedy” from the LTB do not constitute a clear and unambiguous exercise of the option to renew.

[45] As for the Respondents’ allegation that they reached an agreement with Ms. Xu in late August 2019 to extend the lease until the end of July 2025, I find that the existence of such an agreement has not been established. Leaving aside the fact that there is no signed written agreement reflecting such a lease, the evidence put forward by the Respondents fails to establish that Ms. Xu agreed to such an extension and that the parties reached an agreement on all essential terms (including the rent payment schedule). Further, the Respondents’ position that their lease was extended until the end of July 2025 lacks credibility: this position was first asserted on November 25, 2020 and it contradicts the position that the Respondents had previously taken a number of times in correspondence and before the LTB, i.e. that their tenancy was renewed until July 31, 2021.

[46] Thus, the Lease Agreement was not renewed and came to an end on July 31, 2020.

[47] Subsection 38(1) of the RTA provides as follows:

If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act.

[48] I conclude that starting August 1, 2020, the Respondents continued to occupy the Property as overholding tenants on a month-to-month tenancy, with the obligation to pay rent monthly in the amount of $15,000.00. As ordered by Justice Vella, the Lease Agreement was terminated effective August 31, 2020, as a result of the Form N12 served by Ms. Xu, and the Respondents should have vacated the Property by that date. However, since the Respondents continued to occupy the Property after August 31, 2020, they are responsible to pay rent until the time they moved out of the Property on April 5, 2021: see section 87(3) of the RTA.

d. Unpaid rent and utilities

[49] In light of the foregoing, the Respondents owe rent to the Applicant for the period between August 2020 and April 5, 2021 in the amount of $122,500.00.

[50] Further, the evidence filed by the Applicant shows outstanding water and sewage charges in the amount of $1,324.60 as of February 16, 2021. The Respondents have not adduced any evidence (in the Draft Affidavit of otherwise) that they have paid these charges. Under the Lease Agreement, the Respondents were responsible to pay such charges. The Respondents’ allegation that Ms. Xu asked for this term of the Lease Agreement to be changed so that she be responsible for paying water and sewerage charges has not been established by any evidence. Therefore, the Respondents are responsible to pay this amount.

Conclusion

[51] In light of the foregoing, I order the following:

a. The Respondents’ request for an adjournment is denied.

b. The Lease Agreement is terminated effective August 31, 2020.

c. The Respondents are to pay to the Applicant unpaid rent in the amount of $122,500.00, plus prejudgment interest in the amount of $342.91.

d. The Respondents are to pay to the Applicant unpaid utilities in the amount of $1,324.60, plus prejudgment interest in the amount of $64.52.

[52] If costs cannot be agreed upon, the Applicant shall deliver and send to my assistant by e-mail submissions of not more than three pages (double-spaced), excluding the bill of costs, within 10 days of the date of this Judgment. The Respondents shall deliver and send to my assistant by e-mail their submissions (with the same page limit) within 15 days of their receipt of the Applicant’s submissions. If the Respondents fail to deliver costs submissions within the time set out above, I will decide the issue of costs without their input.

Vermette J.

Released: July 14, 2021

[^1]: This term may be contrary to section 106 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, but this issue is not before me and involves Ms. Xu who is not a party to this Application.