Berger v. Kellett et al., 2025 ONSC 2859

Court File No.: CV-24-00000135-0000
Date: 2025-05-12
Superior Court of Justice – Ontario

RE: Avi Berger, Plaintiff
AND: James Kellett, Defendant
AND: Sammie Millis, Defendant

Before: J.R. McCarthy

Counsel:
Lorne Honickman, for the Plaintiff (lhonickman@btlegal.ca)
Patrick Louch, for the Defendant, James Kellett (Patrick@selbielouch.com)
Alita Wolff, for the Defendant, Sammie Millis (alitawolff@gmail.com)

Heard: 2025-05-05

Reasons on Motion

The Motion

[1] The Plaintiff, Avi Berger, moves to stay the Landlord and Tenant Board Application (the “Board” and the “LTB application”, respectively) pending the determination of this proceeding.

[2] The Defendant, Sammie Millis, opposes the motion and asks that it be dismissed with costs. The Defendant, James Kellett, takes no position on the motion.

[3] The Board has adjourned the LTB application pending the determination of this motion.

Background

[4] The dispute centres on the property, municipally known as 1374 Kashagawigamog Lake Road, Minden Hills (the “property”).

[5] The Plaintiff alleges that he entered into a verbal rent-to-own agreement (“RTOA”) with the Defendant Kellett in or around May 2021.

Sometime in 2023, those same parties entered into a residential tenancy agreement (the “tenancy agreement”). The Defendant Millis became the legal owner of the property through a sale from Kellett in November 2023.

Position of the Plaintiff

[6] The Plaintiff seeks a finding that he enjoys a beneficial ownership in the property. He asserts this equitable right through the binding RTOA. He further contends that he was coerced into signing the tenancy agreement through fraud, misrepresentation, and conspiracy by Kellett, the former owner, and Millis, the present owner.

[7] The substance of his argument for a stay of the LTB application is that it would be inequitable and untenable if the LTB application resulted in an eviction order against the Plaintiff only for the court to later find that there was no legally binding tenancy agreement, and that the Plaintiff is the beneficial owner of the property. This is not a simple case of determining rental arrears owed. There are issues of fraud, misrepresentation, and conspiracy in relation to the RTOA, the tenancy agreement, and the sale of the property by Kellett to Millis.

Legal Principles

[8] In order to grant a stay, the court must be satisfied that the continuance of the action (in this case, the LTB application) would cause an injustice because it would be oppressive or vexatious to a party, or that it would abuse the process of the court in some other way. Overall, a stay should only be ordered if there are special circumstances that exist that would warrant such a remedy: see Canadian Express Ltd. v. Blair, 11 O.R. (3d) 221 (S.C.), at p. 223.

[9] The factors to consider when determining prejudice or injustice to a moving party include “the likelihood and effect of the two matters proceeding in tandem in two different forums; the possibility and effect of different results; the potential for double recovery; and the effect of possible delay”: Farris v. Staubach Ontario Inc., 32 C.C.E.L. (3d) 265 (S.C.), at para. 16.

[10] The decision of Warraich v. Choudhry, 2018 ONSC 1275, from the Ontario Divisional Court, is also instructive to this case. In Warraich, the appellant appealed a Board decision to evict him for non-payment of rent and due to the landlord’s election to demolish the property. The appellant argued that the Board lacked jurisdiction to hear the application because the Board had determined that the appellant was not a co-owner of the property. The appellant filed an action in the Superior Court seeking a declaration that he was the co-owner of the property and sought an order to restrain the Board from implementing its order until the court determined the rights of the parties. The court ruled that the Board had jurisdiction to hear the eviction application despite the commencement of a Superior Court proceeding to determine the ownership interest.

[11] At paragraphs 16 and 17 of Warraich, the court explained its reasoning:

There are two very different legal proceedings occurring in two different tribunals – the landlord’s eviction proceeding before the Board and the appellant’s claim of ownership in the Superior Court action. The Board has the jurisdiction to terminate a tenancy and evict a tenant: see Toronto-Dominion Bank v. Hosein, 2016 ONCA 628. The Board’s jurisdiction in this regard extends to the determination of whether the appellant is a “tenant”, and the respondent is a “landlord”, as defined in s. 2(1) of the Act. Conversely, the Superior Court has the jurisdiction to adjudicate the appellant’s claim of an equitable ownership in the property.

These are very separate proceedings that can proceed without any risk of conflicting decisions. In particular, a finding that the appellant is a lessee under the Lease does not in any way affect, much less determine, his claim that he has an equitable interest in the property.

Discussion

[12] The Plaintiff suggests that the LTB application constitutes a corollary “end run” proceeding by the Defendant Millis with respect to the allegations that he is facing in this action.

[13] I disagree and would deny the motion for the following reasons.

[14] Millis initiated the LTB application in March 2024, claiming that the Plaintiff had stopped paying rent. As the owner and landlord, he was doing nothing more than taking the most direct route to have a tenant evicted for non-payment of rent. The Board has sole jurisdiction to terminate a tenancy and evict a tenant. The Board’s determination of tenancy is at the heart of its specialized expertise.

[15] The Plaintiff did not issue his statement of claim until July 29, 2024.

[16] In my view, it is the Plaintiff who is attempting to do an “end run” around the jurisdiction of the Board by suggesting that it must wait to adjudicate upon matters that are clearly within its jurisdiction and statutory mandate.

[17] The Plaintiff alleges fraud, misrepresentation, conspiracy, and coercion in the action yet offers almost no evidence in support. The allegations remain just that – allegations.

[18] The practical effect of the stay would be to leave the Plaintiff in possession and control of the property on a rent-free basis until the present action is resolved. Given that the action is barely out of the starting blocks (e.g., no affidavits of documents have been exchanged, and no discoveries have been held or even scheduled), any stay will necessarily be lengthy.

[19] Such a result would serve to create a gross injustice.

[20] I see no prejudice to the Plaintiff should the LTB application be allowed to proceed. He can continue to claim beneficial ownership of the property and even seek a certificate of pending litigation (“CPL”) to protect any interest he might have in the land. Should he be able to prove an interest in the land and/or that the Defendants breached the RTOA or the tenancy agreement, his remedy would include damages.

[21] The prejudice to the Defendant Millis, on the other hand, would be enormous if the stay were granted. Until the final adjudication of the issues in dispute, Millis, as both the landlord and legal owner, would receive no rent for the property despite remaining responsible for taxes, insurance, and upkeep.

[22] Moreover, there is no risk that the Board will make any determination of equitable ownership rights and entitlements since it has no jurisdiction to do so. There is no risk of conflicting decisions or issue estoppel because the respective proceedings are very different, even though they deal with the same property. Each proceeding involves the adjudication of separate and distinct interests in the property. On the one hand, the Board is being asked to determine if the Plaintiff is a tenant, whether there are rental arrears owing, and whether the Plaintiff should be evicted. On the other hand, the Superior Court will need to determine whether the RTOA was binding and whether it was breached, whether the Plaintiff enjoys any beneficial interest in the property, whether there has been any fraud or misrepresentation on the part of the Defendants, and whether the Plaintiff is entitled to damages and, if so, how those damages should be quantified.

[23] I agree with counsel for the Defendant Millis, who suggested that the LTB would be robbed of its jurisdiction if all that was needed to displace or delay that jurisdiction (and allow a tenant to avoid paying rent while remaining in possession of the property in the interim) was to file a claim in the Superior Court claiming coercion/fraud and an equitable interest in the property. And while counsel for the Plaintiff suggested terms of the stay which might serve to move the matter along more quickly, payment of rent while the action proceeded was not among them.

Summary and Disposition

[24] I conclude that there is no injustice in allowing the LTB application to run its course and for the Board to adjudicate upon matters within its jurisdiction. To grant the stay would be oppressive upon the Defendant Millis, who, as both the legal owner of the property and the landlord under a presumptively valid tenancy agreement, would be deprived of rent for months or even years. There is no abuse of process and nothing vexatious about the LTB application. It is a straightforward claim for rental arrears and an eviction.

[25] There are no special circumstances to warrant a stay. The Plaintiff has not provided evidence that the property is unique or that eviction would leave him homeless. Moreover, a damages award would be available to him if the allegations in the claim action were proven. There remains the option of a CPL or an injunction preventing the sale of the property should the Plaintiff wish to pursue his beneficial ownership claim.

[26] For the foregoing reasons, the motion is dismissed. If the parties are unable to agree on costs of the motion, they may take out an appointment to address the issue before me with the Tri-county Trial Coordinator.

J.R. McCarthy
Date: 2025-05-12