One Clarendon Inc. v. Finlay, 2022 ONSC 6341

COURT FILE NO.: CV-22-680314

DATE: 20221109

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: One Clarendon Inc., Plaintiff, Defendant by Counterclaim

AND:

Kathleen Finlay and John Finlay also known as Richard Finlay and J.R. Finlay, Defendants, Plaintiffs by Counterclaim

BEFORE: W.D. Black J.

COUNSEL: Sanj Sood and Matthew Helfand, for the Plaintiff, Defendant by Counterclaim

John and Kathleen Finlay, representing themselves

Jasdeep Bal, former counsel for the Finlays, appearing as an officer of the Court

HEARD: October 26, 2022

ENDORSEMENT

Overview

[1] This case involves a claim by the plaintiff landlord, One Clarendon Inc., against the defendant brother and sister tenants, Kathleen and John Finlay, seeking to evict them and recover unpaid (and accumulating) rent.

[2] The matter came before Myers J. in Civil Practice Court (“CPC”) on September 28, 2022. His Honour adjourned the CPC attendance for one week to allow counsel to attempt to agree on a process “to ensure that the tenants pay rent pending the return of the application”, which he noted was scheduled for May 15, 2023.

Recent Procedural History

[3] A week later, on October 4, the matter came back before Myers J in CPC as arranged. Counsel for the tenants (Mr. Bal) did not attend. His Honour wrote “In the absence of the tenants’ lawyer, I schedule a motion to deal with interim arrangements for rent on October 26, 2022 for one hour.”

[4] In this October 4, 2022 endorsement, Myers J. also specifically observed that “Delays in the Court’s process cannot be used to obtain rent-free accommodation.”

[5] As noted above and as is evident in the excerpts from Myers J.’s endorsements above, the proceeding is brought by the plaintiff landlord seeking to evict the defendant tenants from suite 400 (the “Rental Unit”), in the residential complex owned by the landlord at 1 Clarendon Avenue in the City of Toronto. The proceeding also seeks payment of outstanding and accruing rent.

The Tenancy at Issue

[6] The parties entered into a residential tenancy agreement (the “Tenancy Agreement”) for a two-year term commencing June 18, 2021, on which date the tenants assumed occupancy of the Rental Unit.

[7] The Tenancy Agreement requires monthly rental payments by the tenants to the landlord in the amount of $5,400.00. The tenants paid that amount for the first four months of their tenancy and then, for the rental period commencing October 18, 2021, stopped payment on the cheque provided to the landlord for rent.

[8] The tenants have, since then, not paid any further rent to the landlord.

Default(s) and Landlord’s Initial Steps

[9] On December 3, 2021, the landlord served the tenants with an “N4 Notice to End Your Tenancy for Non-Payment of Rent” form (a standard form of the Landlord and Tenant Board (“LTB”).

[10] The landlord filed an application with the LTB on January 6, 2021 to evict the tenants, but on April 26, 2022, the landlord commenced this action since the rent arrears exceeded the monetary jurisdiction of the LTB. The landlord accordingly withdrew its application before the LTB.

[11] In the action within which the motion before me is brought, the landlord, in addition to seeking to terminate the tenancy and evict the tenants, seeks a judgment for the accruing rental arrears. At the monthly rate of $5,400.00, the outstanding rent accruals total $64,800.00 per year.

The Action

[12] After receiving the claim, the tenants defended the action and brought a counterclaim in which they seek a 50% abatement of the rent they have paid to date (during their first four months in the Rental Unit) and a full abatement of rent for all rental periods from October 18, 2021 onwards. They allege in the counterclaim that there are various problems with the Rental Unit, including certain stairs that do not meet requirements to accommodate exceptionality, and hence raise human rights-based claims.

[13] The landlord points to evidence raising concerns about the tenants’ intention and ability to pay the outstanding and accruing rent, primarily in the nature of other proceedings in which the tenants, or at least Kathleen Finlay, have failed to pay amounts owing. The landlord also notes that the tenants are “experienced litigants”, have shown an ability and propensity to obfuscate and delay in various proceedings in which they have been involved, and have shown in this action already that propensity to seek delays, to change counsel at the last minute to create conditions for delay, and generally to “game the system” to avoid paying their obligations.

Landlord’s Concerns re Tenants’ Pattern of Behaviour

[14] It is clear in his endorsements that Myers J. was alive to these concerns, and His Honour was at pains to make clear that “this Court’s scheduling backlog cannot be used to obtain a rent‑free period” and was directing the parties to agree on ‘interim measures to collect rent”.

[15] Unfortunately, consistent with those concerns, but perhaps legitimately (as discussed below), the tenants advised that they were not able to participate meaningfully on October 26, 2022 at the time appointed for the motion before me.

Problems Impacting Ability to Proceed with October 26, 2022 Interim Motion

[16] First, Ms. Finlay initially had technical difficulties. She could not be heard or seen via Zoom (albeit her name appeared at the base of a Zoom “square”).

[17] Through the cooperative efforts of the registrar and counsel, we eventually established a telephone connection, which allowed us to communicate with Ms. Finlay, albeit imperfectly and at times with a pronounced echo (which could not be entirely cured by the usual maneuvers).

[18] Once we could hear Ms. Finlay, what could mostly be heard was her coughing, and so her brother and co-defendant, who was apparently with her throughout, began speaking.

[19] His position was that the matter had to be adjourned, inasmuch as both he and his sister were suffering from “pneumonia”.

[20] The Finlays had provided two letters to the landlord’s counsel at the 11^th^ hour, at least one of which was dated today’s date (October 26, 2022), from a family physician who had knowledge of the Finlays’ medical complaints. With the Finlays’ permission, landlord’s counsel shared those letters on the Zoom screen. They say (the second letter more specifically than the first), that both Mr. and Ms. Finlay are suffering from upper respiratory tract infections, are having difficulty moving and speaking, and are not expected to fully recover for two or three weeks.

[21] I note here that despite Ms. Finlay’s very audible coughing in the background, Mr. Finlay appeared to speak without apparent difficulty (other than the aforementioned technological difficulties).

[22] Landlord’s counsel understandably opposed the Finlay’s adjournment request. He noted that the Finlays have known about this date since the last CPC attendance before Myers J. on October 4, 2022, that up to that time they had had two different lawyers, and that as experienced litigants, there should have been no impediment to them providing at least written materials to respond to the landlord’s interim motion.

Argument re Adjournment Request

[23] Mr. Finlay responded by saying that both he and his sister had been so sick during the time between October 4, 2022 and the date of the motion before me that they were simply unable to function at all, let alone well enough to put together responding materials.

[24] Landlord’s counsel noted that the Finlays had taken more or less exactly this position, based on similar representations about illnesses from which they allegedly both suffered, in a proceeding before the Human Rights Tribunal of Ontario a few years ago.

[25] While he was being careful not to be insensitive to genuine illness, it was clear that landlord’s counsel took issue with the credibility and legitimacy of the alleged illness preventing the Finlays from dealing with the interim motion.

[26] While I have concerns, I felt on balance that for immediate purposes, I had to err on the side of accepting the Finlays’ explanation for not being able to respond meaningfully today, particularly inasmuch as their claim was largely supported by two letters from a family physician (albeit that the specific diagnosis was not provided by that physician and there were some other potential issues with the quality and scope of the medical information set out in his letters). In addition, the technical difficulties described above, and the attempts to solve them, used up a substantial portion of the time allotted for the motion today, such that there was little time left to deal with the merits of the interim motion in any event.

Decision re Adjournment

[27] That said, I am not prepared to countenance any further delays. I order as follows (which I advised the parties during today’s hearing):

(a) The interim motion will return before me on November 18, 2022;

(b) The return of the motion on that date will be peremptory against the defendants, and to be clear, the Finlays are strongly encouraged to engage a lawyer and are expected to arrange an appropriate Zoom connection for that date whether or not they have engaged counsel, and the matter will proceed on that day regardless of those factors;

(c) The defendants are to deliver responding materials, if any, by November 10, 2022;

(d) The defendants are to pay to the landlord via landlord’s counsel, by certified cheque and not later than October 31, 2022, the amount of $4,006.00, representing a partial payment of rent for the period from today’s date (October 26, 2022), to the return date of the motion (November 18, 2022);

Specific Terms of Brief Adjournment

[28] The Finlays’ last counsel of record, Mr. Bal, was also present on the Zoom call. Although he has apparently been removed from the record, he attended, he advised me, as an officer of the court, both because Myers J. had noted his absence at the last CPC attendance and because the Finlays have apparently written to the Court and, in their letter have, according to Mr. Bal, misstated certain dates and the like.

Concerns Raised by Finlays’ Former Counsel re Finlays’ Communication to Court

[29] I did not receive the Finlays’ letter, and so was unable to judge the significance of the matters to which Mr. Bal was referring. As such, I asked that landlord’s counsel send me a copy of the letter, directed that Mr. and Ms. Finlay send a copy of their responding materials, if any, to Mr. Bal, and confirmed that Mr. Bal will be available for the return of the motion on November 18, 2022, to the extent that there are matters with which he can assist the Court (while of course respecting the confines of solicitor-client privilege).

[30] As at the time of completing this endorsement I had received from counsel a copy of the correspondence from Ms. Finlay to the Court, dated October 13, 2022. It is not clear to me what specific concerns Mr. Bal may wish to raise relative to Ms. Finlay’s email, but I note that her email (which makes some of the same representations about her illness and that of her brother that were made before me) is articulate and concise. It seems that she was well able, at least as of that date, to provide coherent written submissions to the Court.

Overall Conclusion

[31] In any event and in sum, I granted the adjournment today, albeit reluctantly and with some misgivings, and only on the basis that the next time up, on November 18, 2022, the motion will proceed without doubt, and with the additional terms noted above which are appropriate, in my view, in the circumstances.

W.D Black J.

Date: November 9, 2022