In the recent case of Chalich v. Alhatam, 2020 ONSC 2569 (CanLII) the Divisional Court has found that it does not retain jurisdiction to enforce eviction orders except in rare circumstances and the urgent motion procedure in place during the COVID-19 suspension of normal court operations is not one of them. The Court held that such motions must be brought to a single judge of the Superior Court of Justice.
Background
Looking to sell the property, the landlord signed an agreement of purchase and sale in August 2019 with a completion date of October 31 and the requirement of vacant possession to the purchaser. The Tenant disputed the eviction proceedings at the Landlord and Tenant Board (LTB) hearing, through the LTB review process, and through an appeal to Divisional Court. In February 2020 the tenant signed a lease with a new landlord set to commence May 1, 2020. The parties entered into an agreement to resolve the Divisional Court appeal and on March 18, 2020, the stay on the LTB order was lifted. The following day Chief Justice Morawetz suspended regular court operations including the enforcement of evictions except by leave granted pursuant to the court's procedures for an urgent motion.
The costs faced by the landlord due to this delay are summarized in the following paragraph by the Divisional Court:
The residential sale of this property was originally scheduled to close October 31, 2019. Due to the Landlord and Tenant Board proceedings, however, the closing of the transaction was extended several times. Since October 31, 2019, the landlord has paid the purchaser’s monthly rent of $2,300.00, additional moving costs of $400.00, and additional legal costs of the extensions of $1550.00. The landlord has paid both the property taxes and common expenses for the condominium unit. The closing date has been extended until April 30, 2020.
The tenant has been paying the rent to the landlord and has paid first and last to secure a new unit as noted.
The landlord requested and was granted leave to bring a motion on an urgent basis due to concerns that the scheduled closing of April 30, 2020, may not proceed if the eviction order is not enforced.
The motion was brought through Divisional Court. The assigned Judge anticipated a potential jurisdictional issue for the Divisional Court and requested to have the Civil Motion assigned to her should she find the Divisional Court has no jurisdiction to hear the appeal as, in Justice's words, "[I]t would be inefficient, increasing cost and delay, to traverse the motion to the Civil motions list to be re-assigned and re-heard."
Jurisdiction of Divisional Court
The Court recognized that it retains jurisdiction to enforce eviction orders after an appeal has been dismissed only in rare circumstances. However, the urgent motion process is not one of them. The Court cited the case of Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 as a recent example in which the Divisional Court issued "An order in the nature of mandamus is granted directing the Sheriff to enforce the Board’s eviction order and to deliver vacant possession of the premises [to the landlord]."
The Court, in finding it had no jurisdiction noted at Paragraph 15 and 16:
In Morguard Corporation v. Corredor, 2020 ONSC 2166, Myers, J. clarified the enforcement route for eviction orders during the eviction moratorium in Ontario. Rule 60.17 of the Rules of Civil Procedure provides that “[w]here a question arises in relation to the measures to be taken by a sheriff in carrying out an order” a party may make a motion for directions to a judge. As Justice Myers states in para. 12, “the order for leave to evict a tenant despite the moratorium imposed by the Chief Justice’s order is properly a motion for directions under Rule 60.17”, made to a justice of the Superior Court of Justice. Motions for enforcement should not be taken to Divisional Court, and I have no jurisdiction to deal with the motion as a single judge of Divisional Court.
In Toronto, a motion for directions under Rule 60.17 about the Sheriff’s enforcement of eviction orders is to be heard by a single judge of the Superior Court of Justice sitting on the Civil Team.
Rule 60.17 provides that:
Where a question arises in relation to the measures to be taken by a sheriff in carrying out an order, writ of execution or notice of garnishment, the sheriff or any interested person may make a motion for directions,
(a) to the judge or officer who made the original order, at any place;
(b) to a judge or officer who had jurisdiction to make the original order, in the sheriff’s county, despite rule 37.03 (place of hearing of motions); or
(c) where an appeal has been taken from the original order, to a judge of the court to which the appeal has been taken, at any place. R.R.O. 1990, Reg. 194, r. 60.17.
It is unclear from the decision as to why 60.17 (c) does not confer jurisdiction to the Divisional Court in this matter given that an appeal had been taken from the original order to Divisional Court. In Morguard the matter was not under appeal, but in this case it was.
Enforcement of the Order
The Court considered the circumstances which have lead to the current situation and noted that the Tenant has acted in good faith and that his new rental unit will not be available on May 1, 2020, as the current tenant of that unit will not have vacated by then. The Court recognized that both the landlord and the tenant are victims of the domino affect.
The Court also noted at paragraph 24:
The clear intent of the moratorium is to protect tenants in exactly the kind of situation Mr. Alhatam is in. He has been paying the money ordered by the Landlord and Tenant Board. He signed a lease for May 1, which the new landlord defaulted on. The new landlord stated he could not evict the existing tenant but has clarified that the apartment will be available June 1.
Although the Court dismissed the landlord's motion, it ordered the Tenant to obtain confirmation from the new landlord that the unit will be ready June 1, 2020, and if confirmation of vacant possession by May 15, 2020 is not provided to the current landlord, the current landlord may bring a further motion for directions to the Court.
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