Adler v Minas, 2021 ONSC 6224

COURT FILE NO. CV-21-00667327-0000

DATE: 20211022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KERRY EVAN ADLER and EAGLE CAPITAL CORPORATION

Plaintiffs

– and –

VICTOR MINAS and JANET MINAS

Defendants

Benjamin Salsberg, lawyer for the plaintiffs

James P. McReynolds, lawyer for the Defendants

HEARD: SEPTEMBER 13, 2021

REASONS FOR DECISION

G. DOW, J.

1The plaintiffs/tenants seek injunctive relief returning possession of the rented premises, known municipally as 20 Sandringham Drive, Toronto, to them from the defendants/landlords.

Background

2The plaintiff, Kerry Adler is a successful businessman and CEO of a multi-national corporation, Skypower Services. Eagle Corporation is Mr. Adler’s private corporation holding investments on his behalf. The defendants are the owners of 20 Sandringham Drive, having purchased it in July, 2015 for $4,200,000.00. This large, luxury home is on a very large piece of property which the defendant sought to sever after living in the premises between 2015 to 2018. In July, 2019, the defendants rented the premises to the plaintiffs for a one year term with two, one year options to extend. The parties executed a standard Ontario Real Estate Association Residential Lease whereby, in simplified terms, the plaintiffs agreed to pay $18,000.00 per month rent plus the utility costs. This included “water, heat, electricity” (second paragraph on page 4 of the lease). There were also clauses dealing with maintaining the security system and sufficient liability insurance.

3Problems with the landlord and tenant relationship began and since January or February, 2020, the defendants have sought to evict the plaintiffs. At least four landlord applications have been commenced before the Landlord and Tenant Board and at least three are pending. The defendants obtained the severance they were seeking and want to move back into the premises. The plaintiffs have resisted.

4In December, 2020, Mr. Adler, his partner and three children travelled to the United Arab Emirates. As a result of the global COVID pandemic, he testified having been unable to return. His private corporation employs Rachel Bellissimo to conduct his “personal affairs and the paperwork associated with its passive investments” (paragraph 6 of Kerry Adler’s affidavit sworn August 23, 2021). This included attending at 20 Sandringham Drive, Monday to Friday between 9 am and 5 pm and paying necessary bills including the base rent.

5As a result of a plumbing leak reported to Mr. Minas by the plaintiffs in one of the bathrooms, Mr. Minas attended the premises on August 15, 2021 and formed the impression that no one had been living in the premises for some time. He took a variety of photos including a filing cabinets and corporate minute books which gave him the impression the premises was being used for commercial activity.

6The defendants then unilaterally terminated the tenancy, changed the locks, hired movers to remove and place in storage the plaintiffs’ possession and moved back into the premises.

7Mr. Adler and Eagle Capital Corporation commenced this action on August 18, 2021 seeking injunctive relief returning the premises to them as well as $10,000,000.00 in general damages as well as $200,000.00 in punitive damages. This motion was sought to be heard on an urgent basis. As part of the plaintiffs’ evidence, it was deposed that Mr. Adler intended to return to the premises to facilitate one of the children (from a previous relationship) beginning to attend Crescent School as of September 7, 2021. I was advised the child did return to attend the school and is residing with his mother in Toronto who shares custody of him with Mr. Adler.

8Mr. Adler and the rest of his family remain in the United Arab Emirates. During cross-examination of Mr. Adler, remotely, on August 30, 2021, it was acknowledged no air tickets to Toronto had been purchased and a re-opening date for Skypower Services offices in Toronto had not been set.

Analysis

9The plaintiffs currently point to the sections of the Residential Tenancies Act 2006, S.O. 2006, c. 17 that define and regulate conduct between landlords and tenants with regard to residential tenancies. Essentially, it has exclusive jurisdiction for determining the merits of disputes between the parties and their proper disposition. The submissions of counsel for the plaintiffs noted the application of this statute to residential premises and the need to protect residential tenants from unlawful eviction.

10And yet, despite being involved in multiple applications before the Landlord and Tenant Board, the plaintiff brings this action in the Superior Court of Justice seeking interim injunctive relief as well as $10,000,000.00 in damages plus $200,000.00 in punitive damages. The immediate relief sought is available under section 101 of the Courts of Justice Act, R.S.O. 1990 c. C.43

11I agree with the plaintiff that such relief is governed by the three part test set out in RJR-MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), 1994 1 S.C.R. 311.

12The first issue to address is whether there is a serious issue to be tried. It is clear, taking a common sense approach and noting the threshold is a low one, that there is such an issue. This is based on the defendants/landlords unilateral action to terminate the tenancy, remove and place in storage the plaintiffs/tenants’ possessions, change the locks and move back into the premises.

13Regarding the second test whether the moving party tenant will suffer irreparable harm if the injunctive relief is not granted, I have concluded that they will not. Mr. Adler’s private corporation can be operated from a variety of locations and not necessarily a private residence which raises application of the Residential Tenancies Act, supra.

14Mr. Adler has resided in the United Arab Emirates since December, 2020. The evidence is his employer, Skypower Services pays for his accommodations in that location. It is clear he has and continues to perform the duties of his occupation from that location, being other than Toronto. The primary concern of accommodation for his son to attend Crescent School and live nearby has been secured, likely at an optimal location, that is, with his mother who has shared custody.

15The Supreme Court of Canada has described the nature of irreparable harm as being something that cannot be quantified in monetary terms or cured by collecting damages from the other. I was not directed to any evidence of such harm. To the contrary, it would appear the propriety of the eviction of the plaintiffs/tenants should first be dealt with by the Landlord and Tenant Board. If any claims for damages remain, this action seeks same and remains available.

16Regarding the third part of the test, being which party would suffer the greater harm from granting or refusing the remedy sought until there is a decision on the merits, I have concluded this also rests in favour of the defendants/landlords. There is evidence that this luxury property was not being kept up to a standard that one would expect. That is perhaps understandable given Mr. Adler’s absence from the property since December, 2020. In addition, the evidence regarding Mr. Adler’s return to the premises was uncertain if not speculative.

17The defendants’ decision to move back in, in my view, provides the best opportunity for the property to be properly maintained pending disposition of all of the disputes between the parties before the Landlord and Tenant Board. This will also benefit the plaintiffs/tenants if determination of the issue of ending their tenancy is resolved in their favour. In this regard, there is evidence that the plaintiffs/tenants’ refusal to pay the water bill (which has been added to the tax bill and paid by the defendants/landlords) relates to it being excessive as a result of leak in the pool. With the landlord in possession, the steps necessary to determine that the water leak issue can progress more efficiently. Further, the defendant/landlords’ testified insurance on the property requires them to be living in it and that refinancing of mortgages depends on the defendants/landlords being in possession.

Conclusion

18The plaintiffs/tenants’ motion is dismissed for the reasons stated above.

Costs

19The parties provided Costs Outlines as required by Rule 57.01(6). If successful, the plaintiffs/tenants sought substantial indemnity fees of $59,265.00 plus HST of $7,704.45 and disbursements incurred of $2,044.43 for a total of $69,013.88. For partial indemnity, this was reduced to $39,510.00 plus HST of $5,136.30 and disbursements for a total of $46,690.63. By comparison, the defendants/landlords sought partial indemnity costs of only $8,400.00 for fees plus HST of $1,092.00 and its incurred disbursements of $2,704.99 for a total of $12,196.99. Counsel confirmed no Rule 49 Offers to Settle were exchanged.

20The difference appears to be the amount of time docketed and the difference in hourly rates of counsel, being $675.00 for counsel for the plaintiffs/tenants and only $300.00 for the counsel for the defendants/landlords. Given the success of the defendants/landlords and their lesser amount claimed, I award the defendants/landlords their partial indemnity costs in the amount of $12,196.99 inclusive of fees, HST and disbursements, payable forthwith.