Court File and Parties

Court File No.: CV-24-00730847-0000
Date: 2025-06-02
Court: Superior Court of Justice - Ontario

Applicants: Ahmad Shakil and Anjum Qadiri
Respondent: Dean Heffernan

Before: Ira Parghi
Counsel:

• Kevin A. Kok, Counsel for the Applicants
• Dean Heffernan, Self-Represented Respondent

Heard: June 2, 2025 (in writing)

Endorsement

Background

[1] The Applicants seek an order for possession of a condominium unit at 12 York Street in Toronto, which they own (the “Unit”). The Respondent, Mr. Heffernan, has lived in the Unit rent-free since May 1, 2020. The Applicants state that the contract pursuant to which Mr. Heffernan was initially authorized to occupy the Unit was a short-term Airbnb-type of rental contract which has long expired. Mr. Heffernan states that he has a residential tenancy pursuant to and governed by the Residential Tenancies Act, 2006, SO 2006, c 17 (the “Act”) and that he accordingly is occupying the Unit lawfully.

[2] For the reasons below, I grant the application for possession and other relief sought by the Applicants.

The Agreements and the Landlord Tenant Board Proceedings

[3] The Applicants entered into an agreement with Simply Comfort Estates Inc. (“Simply Comfort”) to rent out the Unit on a short-term basis to short-term rental guests, using platforms such as Airbnb and HomeAway (now Vrbo). Through Simply Comfort, Mr. Heffernan rented the Unit for two brief stays in March 2020 and then again from April 1, 2020 to May 1, 2020.

[4] On April 27, 2020, four days before his short-term rental was to expire, Mr. Heffernan advised Simply Comfort that it was his view that the Act applied to his tenancy. On April 30, he brought an application to the Landlord Tenant Board (“LTB”) seeking an order to that effect. He did not leave the Unit on May 1, 2020 when his short-term rental expired.

[5] The hearing was not conducted until May and August 2024. In the over four years between bringing his application and having it heard, Mr. Heffernan continued to reside in the Unit.

[6] By order dated October 9, 2024, the LTB dismissed Mr. Heffernan’s application, holding that he did not have a tenancy under the Act and that the parties had entered into a short-term occupancy agreement similar to an Airbnb.

[7] After the LTB decision was handed down, the Applicants issued a written notice to Mr. Heffernan under the Trespass to Property Act, RSO 1990, c T.21. They attempted to have the notice enforced, without success. Mr. Heffernan did not leave. He requested a reconsideration of the LTB decision.

[8] In November 2024, the reconsideration request was denied, and the October 9, 2024 decision was confirmed.

The March 12, 2025 Hearing and Adjournment Request

[9] In November 2024, the Applicants brought this application. They seek various forms of relief including a declaration that they are entitled to vacant possession of the Unit, leave to issue a writ of possession, and $68,364.00 in compensation, representing rent for the period during which they say Mr. Heffernan has unlawfully occupied the Unit.

[10] That same month, the application was scheduled to be heard on March 12, 2025. A consent timetable was established at that time for the exchange of application materials. The Applicants delivered their materials in November 2024, well ahead of the February 2025 deadline established in the consent timetable. Thus, by the time of the March 12 hearing date, Mr. Heffernan had had the Applicants’ materials in his possession for roughly four months.

[11] On the day before the scheduled hearing on March 12, 2025, Mr. Heffernan provided what he called “partial materials” on the application. The partial materials were 120 pages in length. He advised the court that he was requesting an adjournment of the hearing on the basis that he has a vision disability and other disabilities that made it hard for him to complete his application materials.

[12] On March 12, 2025, at the scheduled hearing, Mr. Heffernan requested his adjournment and leave to serve and file additional materials. He requested “at least” another two to three months to file those additional materials. I asked Mr. Heffernan to explain what kinds of additional materials he wished to file beyond the ones he had filed the previous day. He indicated that he would like to file transcripts from the LTB hearing, which will take time to prepare. I explained to Mr. Heffernan that those transcripts would not be of assistance to me in deciding this matter and that I do not need to have them before me.

[13] By Endorsement dated March 18, 2025, I gave Mr. Heffernan until April 11, 2025 – an extra 24 days from the original hearing date – to deliver any additional application materials, with that date peremptory upon him. I explained that “peremptory” meant that the April 11 date “must be complied with and there will be no extensions provided.” I indicated that after receiving Mr. Heffernan’s submissions by April 11 and the Applicants’ reply submissions, if any, by April 18, I would hear the application in writing. I explained that the Applicants “have had to wait years for their day in court, quite literally, for reasons beyond their control. They should not have to wait any longer than is reasonably necessary to accommodate the Respondent’s concerns.”

[14] Mr. Heffernan did not file any additional materials.

The April 2025 Written Hearing and Adjournment Request

[15] On April 23, 2025, Mr. Heffernan filed an affidavit seeking more time to file his additional application materials and to bring a motion to stay this application. Implicitly, he also seeks an adjournment of the hearing of this application in writing.

[16] Mr. Heffernan’s affidavit requesting the adjournment is 343 pages long, with attachments. In large part, the affidavit materials consist of the submissions and pleadings from the original LTB proceedings, the subsequent reconsideration request, and the motion for leave to appeal. The submissions articulate his view that the Applicants’ position against him in the LTB proceedings lacked merit, that the ensuing hearing was procedurally unfair, and that the LTB’s decision was incorrect.

[17] In his affidavit, Mr. Heffernan states, “I have been further delayed producing materials due to my mental and physical disabilities, as well as technical issues with my only computer.” He describes his disabilities, which include vision problems and mental health challenges. He provides a clinical note from 2017 indicating that he has been diagnosed with generalized anxiety disorder. He provides a further clinical note indicating that he needs accommodation for his vision problems including extra time to prepare materials, hearings held in the afternoon rather than the morning, and materials printed in larger font. He does not explain the technical issues he says he has experienced with his computer, whether or how he can overcome them, or how much time he would need to do so. He does not specify what if any steps he took between March 12, 2025 and April 23, 2025 to try to prepare his additional application materials.

[18] I decline to adjourn the hearing of the application in writing. I decline to give Mr. Heffernan any additional extension of the deadline to provide additional materials. I discuss the stay issue further below.

[19] In deciding whether to grant an adjournment, I am exercising my judicial discretion. I am to consider such factors as the evidence and strength of the evidence of the reason why the adjournment is sought, the history of the matter, the prejudice to the party resisting the adjournment, and the consequences to the requesting party (Toronto Dominion Bank v. Hylton, 2010 ONCA 752, para 38).

[20] I first consider the evidence provided in support of the adjournment request. In my view, the evidence does not favour granting the adjournment.

[21] The evidence regarding Mr. Heffernan’s mental health issues is limited. The only clinical documentation before me is eight years old. It refers to a generalized anxiety disorder. It does not assist me in understanding whether or how his issues affect his ability to prepare his materials, why the many months he has already been given to prepare his materials have proven insufficient, or how additional time will actually help him to get over the finish line.

[22] While I accept that Mr. Heffernan has vision problems, the accommodations identified in the clinical evidence before me have already been extended to him. These include giving him additional time to prepare his materials for court: he received the Applicants’ materials two to three months early, and he was allowed to provide his own additional materials 24 days late. All told, he has had four to five months to prepare his materials.

[23] There is no evidence as to the specific technical issues he says he has experienced with his computer, whether or how he can overcome them, or how much time he would need to do so.

[24] There is no evidence before me to indicate that, between the March 12, 2025 hearing date and the April 11, 2025 deadline for providing additional materials, he has taken any steps to prepare any such additional materials.

[25] Despite this, on or around April 11, 2025, the same deadline that I imposed for providing his additional application materials, which deadline he says he could not meet, Mr. Heffernan did manage to serve the Applicants’ counsel with materials in support of an appeal of the LTB decision and the reconsideration decision. I was apprised of this fact by the Applicants.

[26] In my assessment, the evidence as to why the adjournment is sought is therefore not persuasive.

[27] Nor does the history of the matter persuade me that an adjournment should be granted. That history, detailed above, shows that Mr. Heffernan was to leave the Unit five years ago, in May 2020. He commenced LTB proceedings, which took some time to be heard and adjudicated. He has lived in the Unit for that entire time.

[28] Moreover, Mr. Heffernan has known about this application since it was commenced in November 2024. He has known about the deadlines applicable to him since he consented to a timetable for the exchange of materials around that same time. He had had the Applicant’s materials in hand for roughly four months by the time of the March 12, 2025 hearing date and roughly five months by the time of the extended April 11, 2025 deadline. This timeline does not support his request for an additional adjournment.

[29] Further, I am of the view that it will prejudice the Applicants if I grant a further adjournment. Mr. Heffernan commenced legal proceedings in respect of his alleged tenancy under the Act on April 30, 2020. For reasons beyond the Applicants’ control, the LTB could not hear Mr. Heffernan’s application until four years later. For five years now, Mr. Heffernan has been living rent-free in the Unit. It is time that the Applicants have their request adjudicated by the court. In my view, further delay, on the heels of the significant delay the Applicants have already experienced, would be most unfair and would be prejudicial.

[30] The consequences to Mr. Heffernan of not being given an adjournment will not be nearly as grave. Mr. Heffernan has also made himself heard. He has already provided materials in respect of the application. In connection with his request for additional time, he has provided additional materials that include his submissions and affidavit evidence from prior proceedings. Although he expresses a wish to put the LTB hearing transcripts before me, I have reassured him that those materials are not relevant for my purposes.

[31] I am not satisfied, based on the evidence before me, that a further adjournment or extension of time to file additional materials would be appropriate or reasonable. It was appropriate to grant Mr. Heffernan additional time to provide his additional materials on March 12, 2025, and I did so. It is not appropriate to grant him any more time, in all the circumstances. This is not a case of insisting on procedural perfection. It is a case of insisting that a litigant move his defence forward in a reasonably timely matter and ensuring that the Applicants are not prejudiced by undue delay, particularly where Mr. Heffernan appears to have had time to devote to other court filings, has had a fair opportunity to be heard, has made himself heard, and has not tendered adequate evidence to warrant a further extension of the deadline.

[32] I therefore consider the application based on the materials before me.

The April 2025 Appeal and the Stay Issue

[33] As discussed above, Mr. Heffernan served the Applicants’ counsel on or around April 11, 2025 with materials in support of an appeal of the LTB decision and the reconsideration decision. Mr. Heffernan’s appeal materials make clear that it is his position that his appeal operates as a stay of this application under section 25(1) of the Statutory Powers Procedure Act, RSO 1990, c S.22 (the “SPPA”). That provision states, “An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless” various inapplicable exceptions apply (emphasis added).

[34] I do not agree with the suggestion that this proceeding is stayed as a consequence of Mr. Heffernan’s appeal.

[35] As a preliminary matter, I am not persuaded that Mr. Heffernan has brought a proper appeal. His appeal appears to have been brought outside of the 30-day time limit set forth in section 210(1) of the Act. He has not brought a motion to extend the time. His appeal also seems to be on a question of fact: it is predicated on Mr. Heffernan’s disagreement with the LTB’s factual finding that there was no tenancy agreement. However, under section 210(1), an appeal is permitted only on a question of law.

[36] If I am correct that the appeal is improper, then there is no “appeal” and as such no prospect of a stay of this proceeding under section 25(1) of the SPPA.

[37] Even if I am mistaken, this proceeding could not be subject to a stay under section 25(1). That provision states that an appeal operates as a stay “in the matter”. The phrase “in the matter” has been held to refer to matters before the same tribunal. The courts have declined to construe the phrase more broadly as encompassing judicial proceedings in addition to tribunal proceedings (see, for example, Ramlochan v. D’Souza, 2012 ONSC 4251, para 15). As such, even if Mr. Heffernan’s appeal were proper such that section 25(1) were engaged, section 25(1) would not operate to stay the proceeding before me, which is not part of the “matter” subject to a section 25(1) stay.

[38] To the extent that Mr. Heffernan suggests that any stay would somehow deprive this court of jurisdiction over this application, I also disagree. This court is a court of general jurisdiction over all substantive law except where its jurisdiction is specifically ousted by the operation of a statute (Courts of Justice Act, RSO 1990, c C.43, s. 11(2)). Section 207(2) of the Act specifically recognizes the jurisdiction of this court over this matter. The Court of Appeal for Ontario has recognized this court’s jurisdiction over landlord and tenant matters (Kaiman v. Graham, 2009 ONCA 77, paras 12-16).

[39] By contrast, the LTB is a creature of the Act and has a statutorily defined (and constrained) jurisdiction. It does not have exclusive jurisdiction over all matters involving landlords and tenants in Ontario. The LTB found that Mr. Heffernan does not have a residential tenancy under the Act. In making this finding, the LTB declined jurisdiction over Mr. Heffernan’s occupation of the Unit.

[40] In the result, this court has jurisdiction over the subject matter of this application and the LTB does not. A stay would not change this fact. In any event, for the reasons above, I am of the view that Mr. Heffernan has not brought a proper appeal and as such there is no prospect of section 25(1) of the SPPA applying. Even if his appeal is proper, this proceeding is not part of the “matter” to which a section 25(1) stay would apply. I do not accept Mr. Heffernan’s suggestion that the purported stay somehow simultaneously deprives this court of jurisdiction and grants jurisdiction to the LTB. Both parts of that claim are mistaken.

[41] The Applicants submit that Mr. Heffernan is using the automatic stay provision of the SPPA to try to delay the hearing of this application and enable himself to remain in the Unit for as long as possible. The Applicants describe this as an abuse of process. I do agree that the effect of Mr. Heffernan’s appeal is to further protract matters that have taken an unduly long time to adjudicate. This consideration further supports my decision to hear this application now, based on the record before me and without affording any more time to Mr. Heffernan to file more materials.

[42] For the reasons above, I am of the view that this court continues to have jurisdiction over this matter. It is therefore appropriate for me to consider this application on the merits.

This Application

[43] In considering this application, I have reviewed closely all the materials provided, including the application materials provided by Mr. Heffernan and his materials in support of his request for more time to provide his additional materials, which together are over 460 pages long. I have also considered all the parties’ submissions during our March 12, 2025 hearing.

[44] I grant the application sought.

[45] I find that the agreement between the Applicants and Mr. Heffernan unequivocally concluded on May 1, 2020. The terms of the short-term rental contract are clear on this issue. The contract terminated on that date, and it was not renewed. Nor did the parties enter into any further contract. To the contrary, the Applicants told Mr. Heffernan that he was illegally and unlawfully occupying the Unit in May 2020.

[46] I find that the Applicants are entitled to possession of the Unit. The Applicants own the Unit. Mr. Heffernan has no legal authority to remain in the Unit. There is no contractual relationship between the Applicants and Mr. Heffernan that would allow Mr. Heffernan to occupy the Unit. The Act does not apply to his occupation of the Unit.

[47] I find that Mr. Heffernan has no interest in the Unit. He is there without legal authorization. He has no interest in the Unit registered on title. He is not a “tenant” as defined in the Act. Mr. Heffernan’s right of possession has ended but he has remained in the Unit without consent. The Applicants have demanded possession. Mr. Heffernan has remained without paying rent. He is therefore a trespasser. He is in the Unit at the sufferance of the Applicants and is subject to ejectment (AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795, paras 93, 97).

[48] For similar reasons, I find that Mr. Heffernan has been duly trespassed from the Unit. He is not a tenant. He has been told he was trespassed from the Unit and required to leave; he did not do so. Attempts to have the trespass notice enforced were unsuccessful. No right was conferred on him to remain in the Unit. He has no interest in the Unit and the Applicants are its owners. As the holders of title to the Unit, they may trespass him from the Unit (Posner v. Ouanounou, 2024 ONSC 2971, paras 15, 21-22).

[49] I am satisfied that an unjust enrichment claim has been established on these facts (Moore v. Sweet, 2018 SCC 52, para 37). Mr. Heffernan has been unjustly enriched by being able to live rent-free in the Unit for 54 months. The Applicants have suffered a corresponding deprivation because they have been unable to use and enjoy the Unit, or to derive rental income from it. There is no juristic reason for the enrichment and deprivation: Mr. Heffernan is not a tenant and has no legal or equitable right to occupy the Unit. He is a trespasser.

[50] The quantum of Mr. Heffernan’s enrichment is not in dispute: the monthly cost for his rent when he was occupying the Unit under the short-term agreement was $1,266.80, and the Applicants seek $1,266.00 amount for each of the 54 months that he has occupied the Unit without legal authorization. That amount totals $68,364.00.

[51] Under Rule 14.05(3)(h) of the Rules of Civil Procedure, RRO 1990, Reg 194, an application may be brought where the relief claimed is in respect of a matter where it is unlikely there will be any material facts in dispute requiring a trial. This is such a matter. The material facts are either undisputed or have been determined by the LTB and are therefore res judicata. These material facts include that Mr. Heffernan’s rental contract expired on May 1, 2020, that Mr. Heffernan is not a residential tenant under the Act, that Mr. Heffernan has not paid any rent, that a written notice of trespass was sent, and that Mr. Heffernan remains in the Unit.

Order Granted

[52] For the reasons above, I grant the Applicants an order for possession of the Unit.

[53] Under the Rules, I may grant the Applicants leave to issue a writ of possession at the same time that I make an order entitling them to possession (Rule 60.10(1)). I do so here. Mr. Heffernan has had more than adequate notice of this proceeding. The requirements of Rules 60.10(1) and (2) are met.

[54] I declare the following under Rule 14.05:

a. The Applicants are entitled to possession of the Unit;
b. Mr. Heffernan is an overholding short-term rental guest and has no lawful interest in the Unit;
c. Mr. Heffernan was entitled to occupy the Unit pursuant to the agreement between the parties until no later than May 1, 2020; and
d. Mr. Heffernan has been duly trespassed under the Trespass to Property Act.

[55] I order the following:

a. Leave to issue a writ of possession for the Unit is hereby granted under Rule 60.10, to be effective 60 days from the date of this Endorsement;
b. Mr. Heffernan shall pay the Applicants $68,364.00, together with prejudgment interest from May 1, 2020 onward, and post-judgment interest as applicable pursuant to section 129 of the Courts of Justice Act.

[56] The Applicants are entirely successful in this application and are therefore entitled to their costs. The parties are to work together to try to resolve the issue of costs. If they are unable to do so, they may advise my judicial assistant via email, and I will set a timetable for the exchange of brief costs submissions.

Justice Ira Parghi
Date: June 2, 2025