COURT FILE NO.: CV-22-00677538-0000

DATE: 2022-07-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FAY ALANNA JENSEN and WALTER JENSEN, Applicants

AND:

ELIJAH CHARLES M. JOHNSON and MANDY GOMMLICH, Respondents

BEFORE: VERMETTE J.

COUNSEL: Luis Hernandez, for the Applicants

Elijah Charles M. Johnson and Mandy Gommlich, self-represented

HEARD: July 21, 2022

ENDORSEMENT

[1] The Applicants seek an order terminating the Respondents’ tenancy and evicting them from the rental unit, as well as damages in the amount of $47,300 for unpaid rent.

[2] The Application is granted.

A. FACTUAL BACKGROUND

[3] The Applicants are the co-owners of a condominium unit in Toronto (“Unit”). On July 9, 2020, the Applicant Fay Alanna Jensen (“Landlord”) and the Respondents entered into an Agreement to Lease the Unit, a parking spot and a locker for a one-year period commencing on July 15, 2020 and ending on July 14, 2021 (“Lease”).

[4] Pursuant to the Lease, the Respondents agreed to pay to the Landlord a monthly rent of $4,300.00, payable in advance on the fifteenth day of each month. The monthly payments were to be made by e-transfer to the Landlord’s e-mail address.

[5] The Respondents failed to pay rent from November 15, 2020 to August 14, 2021, and again from November 15, 2021 to January 14, 2022. In communications with the Applicants or their agents, the Respondents have repeatedly claimed that they have paid rent for these months, but they have failed to offer any evidence that they have actually made any payments.

[6] On April 14, 2021, the Applicants’ lawyer sent an e-mail to the Respondents attaching: (a) a demand letter for the outstanding rent for the period November 15, 2020 to April 15, 2021 (for a total of $25,800), and (b) a Landlord and Tenant Board Form N4 “Notice to End your Tenancy for Non-payment of Rent”. No reply was received from the Respondents.

[7] On May 13, 2021, the Applicants’ lawyer sent another e-mail to the Respondents attaching: (a) a follow-up letter asking for the payment of the outstanding rent, and (b) a Landlord and Tenant Board Form L1 “Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes”.

[8] The Respondents were briefly represented by counsel in the second half of 2021 and, during that time, they made their monthly rent payments in August, September and October 2021. No payments were received in November and December 2021.

[9] On September 28, 2021, the Respondents filed a Form T6 “Tenant Application about Maintenance” in the Landlord and Tenant Board for an order determining that the Landlord had failed to meet her maintenance obligations under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) or failed to comply with health, safety, housing or maintenance standards (“Tenants’ Application”). Among other things, the Respondents sought a rent abatement of at least 30% for the period August 2020 to September 2021. The Applicants’ evidence is that they were not aware of the Tenants’ Application until March 16, 2022, when they received a copy of an interim order (discussed below). There is no evidence before me contradicting this evidence or showing that the Form T6 was sent to the Applicants before March 2022.

[10] The Landlord and Tenant Board heard the Landlord’s application to evict on December 21, 2021. The application was dismissed because the Form N4 “Notice to End your Tenancy for Non-payment of Rent” that was delivered to the Respondents was considered to be invalid since it incorrectly indicated the rent period as ending on March 15, 2021 instead of March 14, 2021.

[11] On January 25, 2022, the Applicants’ lawyer sent another letter to the Respondents and an updated Form N4. The letter stated, in part:

Failure to pay the complete amount owing will result in our client taking immediate legal action against you both. Since the amount owing exceeds the $35,000 jurisdiction of the Landlord and Tenant Board, pursuant to section 207(2) of the Residential Tenancies Act, 2006, our client is entitled to commence a proceeding in the Ontario Superior Court of Justice.

A claim will be filed in Superior Court on February 16, 2022 should you fail to pay the arrears. [Emphasis in the original.]

[12] No response was received from the Respondents. Instead, on February 7, 2022, the Respondents filed a request under section 195(1)(b) of the RTA for an interim order granting permission to the Respondents to pay rent into the Landlord and Tenant Board until the hearing of the Tenants’ Application. The interim order was granted on March 16, 2022 (“Interim Order”).

[13] This Application was commenced on February 28, 2022, more than two weeks before the Interim Order was granted and before the Applicants became aware of the Tenants’ Application.

[14] On May 3, 2022, the Tenants’ Application was heard by the Landlord and Tenant Board. The Hearing Officer issued the following order on May 11, 2022 (“Consent Order”):

Elijah Johnson and Mandy Gommlich (the ‘Tenants’) applied for an order determining that Fay Jensen (the ‘Landlord’) failed to meet the Landlord’s maintenance obligations under the Residential Tenancies Act, 2006 (the ‘Act’) or failed to comply with health, safety, housing or maintenance standards.

A hearing of the applications took place by video conference (VC 115) on May 3, 2022.

The Tenants, the Tenants’ Legal Representative, Barbara Elizabeth Warner, and the Landlord’s Legal Representative, Luis Hernandez attended the hearing.

At the hearing, the parties engaged in mediation. As a result of the resolution discussion, the parties reached a full and final settlement of all issues raised in the application and requested an order on consent. I was satisfied that the parties understood the terms and consequences of their consent.

On consent, it is ordered that:

1. The total amount the Landlord owes the Tenants is $15,818.00. This represents a settlement payment in full and final settlement of all issues raised in the application filed.

2. The Tenants paid $17,200.00 to the Board in trust since the application was filed.

3. The Board shall forthwith pay to the Tenants $15,818.00 plus accrued interest of the total amount held in trust.

4. The Board shall forthwith pay to the Landlord the remaining balance of $1,382.00 plus accrued interest held in trust.

5. The Landlord shall arrange for the following work to be completed in the rental unit/complex:

6. The lawful monthly rent shall be reduced by 10% commencing May 15, 2022 until the Landlord complies with all the repairs/replacements as set out in paragraph 5 of this order. [Emphasis in the original.]

[15] Paragraph 5 of the Consent Order contains a list of eleven specific repairs that needed to be made on or before certain dates, ranging from May 12 to July 14, 2022.

[16] The Applicants claim that they are presently owed $47,300 in rent arrears:

a. $38,700 for rent for the period November 15, 2020 to August 14, 2021; and

b. $8,600 for rent for the period November 15, 2021 to January 14, 2022.

B. THE APPLICATION

[17] As stated above, the Notice of Application in this matter was issued on February 28, 2022.

[18] On April 5, 2022, Justice Glustein ordered that the Application be heard on July 21, 2022 and he established a timetable for the delivery of materials.

[19] While the Respondents were represented by a lawyer for a short period of time after the commencement of this Application, including at the time the Consent Order was made, they have been without legal representation since May 4, 2022. It appears that their lawyer never was formally on the record in this Application because a Notice of Appearance was filed for the first time by the Respondents personally on July 20, 2021, i.e. the day before the hearing.

[20] On June 15, 2022, the Respondents and the lawyer for the Applicants participated in a case conference before Justice Pollak. At that time, the original timetable ordered by Justice Glustein was amended so as to give the Respondents an extra month and a half to serve responding materials (they were originally due by May 9, 2022). Justice Pollak’s endorsement also indicates that there was a discussion during the case conference as to the documents that the Applicants required in order to resolve this dispute. Despite this and the extension of time granted to the Respondents, the Respondents have not filed any materials in response to the Application. Among other things, there is no evidence before me that the Respondents have paid the rent that is alleged to be unpaid.

[21] The Respondents participated in the hearing and made oral submissions.

C. ADJOURNMENT REQUEST

[22] At the beginning of the hearing, the Respondents requested an adjournment. They had not previously advised the Applicants or the Court that they would be seeking an adjournment.

[23] Some of the arguments raised by the Respondents with respect to their adjournment request relate to the merits of the Application and this Court’s power to grant the relief requested on this Application. Therefore, they are discussed below.

[24] In support of their request for an adjournment, the Respondents referred to outstanding complaints and investigations and open files with a number of authorities. They asked that the Application be adjourned until the completion of the investigations into the various issues/matters. The Respondents have not filed any documents related to these other complaints and investigations.

[25] The Respondents also alleged that the Landlord had not fully complied with the Consent Order and that some of the repairs were outstanding. There is no evidence before me supporting these allegations.

[26] The Respondents further alleged, among other things, that their Wi-Fi and security system had been compromised, that they were not receiving telephone calls and e-mails, and that they were still unable to access or obtain relevant documents. Again, there is no evidence before me with respect to any of these allegations, and there is also no evidence linking these alleged issues to the Applicants.

[27] The Respondents have known about this hearing date since April 5, 2022. The hearing date was confirmed again on June 15, 2022, when the Respondents were granted additional time to file responding materials. Further, the Respondents have known about the Landlord’s intention to evict them for non-payment of rent for more than a year. They have been given numerous opportunities over a very long period of time to produce documents showing that they had paid the rent that they were required to pay, as they allege. However, they have failed to do so and they keep repeating the same excuses and creating new ones. It is not credible that, somehow, the Respondents have been able to file all sorts of complaints and move forward with those, but they are unable to respond to this Application and provide any evidence that they have paid the rent that is alleged to be unpaid.

[28] In the absence of any evidence and in light of the significant time that the Respondents have had to address the issues raised in this Application, I denied the request for an adjournment at the hearing.

D. DISCUSSION

[29] This Court has jurisdiction to determine this Application. Subsections 207(1) and (2) of the 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.

[30] The amount claimed by the Applicants for unpaid rent exceed the Landlord and Tenant Board’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. 14-16.

[31] Based on the uncontradicted evidence before me, I am satisfied that the amount of unpaid rent claimed by the Applicants has been established. The fact that the Respondents were able to pay rent: (a) to the Landlord while they were represented by counsel for a few months in 2021, and (b) to the Landlord and Tenant Board after the Interim Order was made in March 2022, significantly undermines all the excuses raised by the Respondents and shows that the Respondents are able to overcome any technical difficulties associated with the payment of rent when they want to.

[32] I am also satisfied that based on sections 59 and 69 of the RTA, an order terminating the Respondents’ tenancy and evicting them from the Unit can be made.

[33] At the hearing, the Respondents argued that the Application should be dismissed based on subsections 83(3)(a), (b) and (c) of the RTA. Subsections 83(1) and (3) of the RTA provide as follows:

Power of Board, eviction

83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

Circumstances where refusal required

(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,

(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

[34] In my view, subsections 83(3)(a), (b) and (c) do not apply in this case.

[35] The Respondents argue that subsection 83(3)(a) applies because they allege that the Landlord has failed to comply fully with the Consent Order and that some of the repairs required by the Consent Order are outstanding. As stated above, there is no evidence before me supporting these allegations. In any event, I make the following observations:

a. The failure to pay rent is with respect to a period that precedes the Consent Order.

b. This Application was brought more than two months before the Consent Order was made.

c. Pursuant to the Consent Order, the Respondents received a payment of $15,818.00 “in full and final settlement of all issues raised” in the Tenants’ Application. This prevents the Respondents from claiming that the Landlord is in breach of her responsibilities for the period preceding the Consent Order.

d. The Consent Order has in it a built-in remedy in the event the Landlord is delayed in complying with the repairs set out in the Consent Order. It provides that the “monthly rent shall be reduced by 10% commencing May 15, 2022 until the Landlord complies with all the repairs/replacements as set out in paragraph 5 of this order.”

e. In the absence of evidence as to which repairs remain outstanding, I am not satisfied that the Landlord is in serious breach of the Landlord’s responsibilities under the RTA or of any material covenant in the Lease. Some of the repairs required by the Consent Order relate to very minor items, e.g. inspecting and repairing a malfunctioning ice cube maker, and servicing and repairing a gas fireplace as needed. Further, the fact that: (i) the Respondents have been living in the Unit since July 2020, and (ii) the rent abatement pending completion of all the repairs and replacements is only 10%, suggests that the breaches in issue are not serious.

[36] Thus, in light of the foregoing and the absence of evidence in support of the Respondents’ allegations, I am not satisfied that the Landlord is in serious breach of her responsibilities under the RTA or of any material covenant in the Lease. Consequently, subsection 83(3)(a) has no application.

[37] With respect to subsections 83(3)(b) and (c), the evidence before me supports the conclusion that this Application was brought because of the Respondents’ failure to pay rent and for no other reasons. The correspondence about the Respondents’ failure to pay rent and the requests that they do so start in November 2020, i.e. right after the Respondents’ first default. The correspondence and requests continued on a constant basis until this Application was commenced.

[38] The Tenants’ Application was filed on September 28, 2021, more than 10 months after: (a) the Respondents first failed to pay rent; and (b) the Landlord started to make numerous requests for payment. As stated above, the evidence before me is that the Applicants did not find out about the Tenants’ Application until March 2022, after this Application was commenced. Even if the Applicants knew about the Tenants’ Application earlier, this does not establish that this Application was brought because the Respondents had (a) “complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards”, or (b) “attempted to secure or enforce [their] legal rights”. I am not satisfied that the Application was brought for one of these ulterior purposes. In fact, I am satisfied that the Application was brought because of the Respondents’ failure to pay rent over an extended period of time.

[39] The same reasoning applies with respect to any other complaints that the Respondents allege to have filed in addition to the Tenants’ Application, even though there is no evidence before me about such complaints and the dates on which they were filed.

[40] Therefore, I reject the Respondents’ arguments based on subsection 83(3) of the RTA. In my view, taking into account all of the circumstances of this case, it would be unjust not to grant the relief sought on this Application given the extended period of time over which the Respondents have failed to pay rent and the numerous opportunities that were given to them to cure their default and/or produce documents in support of their allegations that they had made the necessary payments, which they utterly failed to do.

E. CONCLUSION

[41] The Application is granted.

[42] If costs cannot be agreed upon, the Applicants shall deliver submissions of not more than three pages (double-spaced), excluding the bill of costs, within 14 days of the date of this decision. The Respondents shall deliver their responding submissions (with the same page limit) within 14 days of their receipt of the Applicants’ submissions. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

Vermette J.

Date: July 22, 2022