CITATION: Tantay v. Verceles et al, 2026 ONSC 1445

COURT FILE NO.: CV-24-00723749-0000

DATE: 20260311

BETWEEN:

Julia Tantay

Plaintiff

– and –

Chester Verceles and Naomi Daniels

Defendants

Everton Torres, for Plaintiff

HEARD: March 9, 2026

merritt J.

1The Plaintiff seeks a declaration that the Residential Tenancies Act, R.S.O. 2006 c. 17 does not apply in the circumstances of this case, a judgement for possession and vacant possession of the basement portion of her property at 172 Chisholm Avenue, Toronto, Ontario, an order restraining the Defendants from entering or remaining in the basement and a writ of possession and related relief.

2The Defendants are Chester Verceles, who is the son of the Plaintiff and his partner Naomi Daniels.

3The Plaintiff is the owner of property.

4The Defendants are occupying the basement of the property.

5The Plaintiff commenced this action on July 12, 2024 to evict the Defendants and restore her possession of the basement.

6The Plaintiff served the Defendants with the Statement of Claim on July 14, 2024 and they have not defended the action. The Defendants were noted in default on October 8, 2024.

7On March 7, 2025, the Plaintiff brought a motion seeking injunctive relief, including an order for possession of the property, an interim and/or permanent injunction directing the Defendants to vacate the Property, and an order evicting them from the basement.

8On March 7, 2025 the parties appeared before Associate Justice Jolley. The Defendants attended in person and advised the court that they were willing to attempt to resolve the matter and vacate the property. Associate Justice Jolley told the Plaintiff that the relief sought was likely within the jurisdiction of a judge.

9The Defendants have not vacated the basement and are preventing the Plaintiff from accessing the basement.

Decision

10For the reasons that follow I am granting the judgment as sought.

The Issues

11The main issues are:

Issue 1: Is the Plaintiff entitled to an order for possession?
Issue 2: Is the plaintiff entitled to a writ of possession?
Issue 3: Is the Plaintiff entitled to an order restraining the Defendants from entering or remaining in the basement?

Analysis

Issue 1: Is the Plaintiff entitled to an order for possession?

Consequences of noting in default

12Pursuant to r. 19.02, having not defended the proceeding, a defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

13However, pursuant to r. 19.06 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

The test on a motion for default judgment

14The test on a motion for default judgement is: A. What deemed admissions of fact flow from the facts pleaded in the Statement of Claim? B. Do those deemed admissions of fact entitle the plaintiff, as a matter of law, to judgement on the claim? C. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitle it to judgement on the pleaded claim? Elekta Ltd. v. Rodkin, 2012 ONSC 2062 at para. 14.

15I am satisfied that the plaintiff has established liability based upon the following deemed admissions from the Statement of Claim, together with the evidence from the affidavits of Julia Tantay and Hannah Tantay.

16The basement is not finished and is not intended for occupancy. It was previously locked and the Defendants did not have a key for access.

17In early 2023 the Defendants broke through the basement window and barricaded themselves inside, changing the locks and gaining possession of the basement and prevented the Plaintiff from entering.

18On April 1, 2023 the Plaintiff sent the Defendants written notice to vacate the property. The Defendants did not respond.

19The Plaintiff called the police for assistance in April 2023, but they will not assist without a court order.

20The basement is in serious disrepair, creating unsafe and unsanitary conditions. The basement is cluttered with garbage, dirty dishes, and discarded personal items. There is visible dirt, dust, and debris throughout the basement. There are signs of mould, moisture, and rusted furniture in the basement.

21The Plaintiff’s water bill has increased substantially in the last quarter of 2025 and she is concerned that there may be a leak.

22The Plaintiff does not have access to the water meter or electrical panel in the basement.

23The Defendants have constructed an improvised fire pit in the exterior area of the property using concrete blocks or similar materials. The Plaintiff is concerned that the use of this fire pit poses a risk of fire and damage to her home and to neighbouring properties.

24The basement is currently being used and maintained in a manner that the Plaintiff believes poses ongoing safety risks, including risks of fire, water damage, pest infestation, mould, and other unsanitary or hazardous conditions. She does not have the ability to inspect or remedy these risks while the Defendants remain in exclusive possession of the basement.

25The Defendants frequently permit unknown and unauthorized individuals to attend the Property. There is frequent noise, repeated coming and going of persons, and activity within the basement at various hours, which causes the Plaintiff concern for her safety and security within her home. She discovered a large knife in her home near the entrance to the stairs to the basement.

26The Defendants have no legal entitlement to occupy the basement.

27Where there is no actual consent, or deemed acquiescence, the occupants are trespassers, and must vacate the premises, on reasonable notice: Seberras v. Shende 1990 CarswellOnt 516, at p.4

28The Defendants are not tenants. The Defendants do not have a lease, have never had a lease, and have never paid rent or contributed to household expenses. The Defendants broke in and occupied the basement without the Plaintiff’s consent.

29The Plaintiff is entitled to an order for possession.

Issue 2: Is the Plaintiff entitled to a writ of possession?

30Pursuant to r. 60.10 “the court may grant leave to issue a writ of possession only when it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.” See also Kim (Re), 2022 ONSC 2731 at para 19.

31The Plaintiff served the Defendants by sending a copy by regular mail to their last known address 172 Chisholm Avene, Toronto and by email to their last known email addresses: chestwelikiss@hotmail.com and naomidaniele@live.ca.

32I am satisfied that the Defendants who are in actual possession have received sufficient notice of the proceeding.

33Order to go granting the Plaintiff leave to issue a writ of possession.

Issue 3: Is the Plainitff entitled to an injunction?

34To obtain a permanent injunction, a party is required to establish its legal rights and that an injunction is an appropriate remedy: 1711811 Ontario Ltd. v Buckley Insurance Brokers Ltd., 2014 ONCA 125 at paras. 77-80 citing Cambie Surgeries Corp. v British Columbia (Medical Services Commission), 2010 BCCA 396 at paras. 27-28.

35As referenced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, the Court of Appeal for Newfoundland and Labrador, in Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46, 358 Nfld. & P.E.I.R. 123, at para. 72, set out the following factors to be considered in granting permanent injunctions in the private law context:

Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant’s suit should be dismissed).
Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed).
Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy).
If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court’s discretion as to whether to deny the injunction remedy.)
If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?
In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?

36The Ontario Court of Appeal cited Injunctions and Specific Performance and NunatuKavut Community Council Inc. in Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71 at para. 25. The court also said at para 26:

Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the claimant. See Cambie Surgeries Corp., at para. 39; NunatuKavut Community Council Inc., at para. 71.

37The Defendants have no legal right to occupy the basement and doing so is causing damage to the premises and emotional harm to the Plaintiff. The Defendants’ occupation of the basement has caused Plaintiff’s wellbeing to decline. She has ongoing stress and anxiety because of the Defendants’ presence in her home and her lack of control over a portion of her own property. She feels unsafe and insecure in her home.

38The Defendants’ conduct in physically taking possession of the basement is sufficiently likely to occur or recur in the future if the injunction is not granted. They know they do not have the Plaintiff’s permission and they have misrepresented to the court that they will leave the premises and have failed to do so

39There is no adequate alternate remedy, other than a permanent injunction. Even if they are evicted, they may well attempt to break in again. The Plaintiff should not be put to the expense of having to obtain another order for possession and writ of possession.

40The equities strongly favour the Plaintiff.

Costs

41The plaintiff requests costs on a substantial indemnity basis. The Plainitff’s actual costs are 9,873.23, inclusive of disbursements. There is an outstanding invoice from the process server which counsel estimates to be approximately $500.00

42 Section 131(1) of the Courts of Justice Act, R.S.O. 1990 c. C-43 provides that the costs of and incidental to a proceeding are in the discretion of the court and the court may determine by whom and to what extent the costs shall be paid.

43The purpose of awarding costs is:

to indemnify successful litigants for the costs of litigation, although not necessarily completely;

to facilitate access to justice, including access for impecunious litigants;

to discourage frivolous claims and defences;

to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; and

to encourage settlements. (Harley v. Harley, 2023 ONSC 4611 at para 22 and Bender v. Dulovic, 2023 ONSC 4753 at para 23, citations omitted)

44The factors to be considered in determining costs are set out in r. 57.01.

45The awarding of costs is not an exact science. The overarching principle is that costs must be fair, reasonable and proportionate (Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587Harley at para 34-35 and Bender at para 24-25).

46In Youkhana v. Pearson, 2024 ONSC 3184 Trimble J. reviewed general principles when assessing costs:

6In Tri-S Investments Limited v. Vong , [1991] O. J. No. 2292 (Gen. Div.), page 6, the Court said that the court’s function when fixing costs is not to second guess successful counsel on the of time that should or could have been spent to achieve the same result, unless the time spent is so grossly excessive as to be obvious overkill.

7In making this assessment, the following legal principles apply:

a) Costs awards as between litigants have a number of purposes, including to a) indemnify (partly) successful litigants, b) encourage settlement, c) correct behaviour of the parties, and d) discourage frivolous or ill-founded litigation (see 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238, at para. 10).

b) Generally costs should follow the event (see Bell v. Olympia & York Developments Ltd., (1994), 17 O.R. (3d) 135 (C.A.)), be proportional to the issues in the action and the outcome, and be reasonable for the losing part to pay, all circumstances considered (see Boucher, supra, and Moon v. Sher et al., [2004] OJ No 4651 (C.A.).

c) Conduct of the parties is also relevant where it deserves sanction (see Davies v. Clarington (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.)). One party’s playing “hardball” is a relevant factor to consider (see 394 Lakeshore, supra.).

d) Costs should be proportional to the issues in the action and amount awarded. Proportionality, however, should not override other considerations, and determining proportionality should not be a purely retrospective inquiry based on the award. It should not be used to undercompensate a litigant for costs legitimately incurred. In Aacurate v. Tarasco, 2015 ONSC 5980 (S.C.J.), McCarthy, J. said:

I am mindful that the principle of proportionality calls upon the court to consider the amount claimed for costs in relation to the amount recovered in the judgment, as well as the reasonable expectation of the parties. In my view, however, proportionality cannot and should not be routinely invoked to save litigants from the actual costs of proceedings in circumstances where those litigants have put forth a wholly unmeritorious defence to a legitimate claim or have caused the proceeding to become unduly prolonged or complicated. The principle should be applied thoughtfully and in a balanced fashion along with the other factors set out in rule 57.01.

e) An undue focus on proportionality ignores principles of indemnity and access to justice (see Gardiner v. MacDonald, 2016 ONSC 2770 (S.C.J.) at para. 65). The trial judge must make an award that is fair and appropriate, overall.

47In Apotex the Court of Appeal held that after examining the factors the court must consider the overall fairness and reasonableness of the costs:

A proper costs assessment requires a court to undertake a critical examination of the relevant factors as applied to the costs claimed and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 2, at para. 356, citing Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 24. However, as this court recently reiterated in Restoule, at para. 357, referencing Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100, “this overall sense of what is reasonable ‘cannot be a properly informed one before the parts are critically examined’”: para. 60.

48Costs on an elevated scale may be warranted where they are explicitly authorized under r. 49 as a result of a failure to accept an offer to settle. Costs on an elevated scale may also be warranted where the unsuccessful party has engaged in behaviour worthy of sanction: Clots v. Rennie, 2024 ONSC 1012 at para 7

49Costs on a substantial indemnity scale may be warranted where the unsuccessful party has engaged in behavior that is reprehensible, scandalous, or outrageous, and worthy of sanction: Davies v. Clarington (Municipality), 2009 ONCA 722, at para. 28; Young v. Young, [1993] 4 S.C.R. 3, at p. 134. Substantial indemnity costs are to be awarded “in rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation”: Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (Ont. C.A.), at para. 123.

50Conduct worthy of sanction may include the circumstances giving rise to the litigation as well as the conduct in the proceedings: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43 citing Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.), at p. 23.

51In this case, the behaviour of the Defendants in breaking into the Plaintiff’s home effectively trashing it and failing to leave when told to do so, is reprehensible conduct worth of sanction. The Plaintiff is entitled to substantial indemnity costs.

52I have considered the factors under r. 57.01(1) including the time spent, rates charged, reasonable expectations of the parties, as well as the amount claimed by the Plaintiff in the statement of claim. In my view, having regard to all of the factors, I find that $8,800 inclusive of HST and disbursements is appropriate.

53The Defendants shall pay costs in the amount of $8,800 inclusive of HST and disbursements to the Plaintiff.

Merritt J.

Released: March 11, 2026