The tenant had been refusing to grant the landlord and her agents access to the unit in an apparent attempt to thwart the sale of the unit. The matter was heard at the Landlord and Tenant Board in May 2019 and in an order date July 16, 2019, the LTB granted relief from eviction on the condition that the tenant provide access to the rental unit upon receiving valid notices of entry from the landlord. By August 2, 2019, the tenant had breached the order and the landlord obtained an ex-parte order dated August 9, 2019, terminating the tenancy and ordering the eviction could be enforced commencing August 21, 2019. The tenant filed a motion to set aside this order for which a hearing was held on September 19, 2019, and on November 8, 2019, the LTB issued an order that denied the motion to set aside the eviction order, but delayed the lifting of the stay until December 31, 2019. On December 11, 2019, an order which denied the tenant's request to review the issued.
The tenant filed an appeal of a LTB eviction order on January 3, 2020. As the tenant failed to perfect the appeal as required, the Registrar order the appeal dismissed and the tenant brought a motion to set aside the Registrar's dismissal.
The motion was to have been heard on March 17, 2020, but with the suspension of normal court operations it was heard by telephone on March 23, 2020.
The Court considered the factors in determining whether the it should set aside the Registrar's dismissal order. It found that other than filing the notice to appeal the tenant "provided no evidence of the steps taken to try to perfect the appeal or his intention to appeal". It found the delay unjustified as the tenant had insufficient evidence to support his submissions and assertions made at the hearing with respect to the delay. The Court found the evidence in support of prejudice to the landlord to be the inability to sell the unit and the requirement of the funds from the sale due to the landlord's spouse's ill health. The Court found that there is no merit to the appeal as it does not raise a question of law.
At paragraph 23 the Court considers the final factor of the "justice of the case":
The Landlord and Tenant Board granted an order of eviction after the tenant repeatedly refused to grant the landlord entry over the course of 7 months. The appellant has done nothing to perfect the appeal. The moving party bears the burden of proof on motions to set aside. Mr. Gharib has not met this burden on any issue other than his intention to appeal. The other factors all favour the respondent. Mr. Gharib has no plan for perfecting, and no reasonable excuse for failure to perfect. The landlord needs to sell the unit. There is no merit to the appeal, as no questions of law are raised. The request for an extension of time to perfect the appeal is a ploy by the tenant to extend the time to stay on the property. The interests of justice do not require granting an extension or setting aside the Registrar’s order.
After a consideration of costs, the Divisional Court ordered as follows:
The appellant’s motion to set aside the Registrar’s order is dismissed. The Orders of the Landlord and Tenant Board dated August 9, November 8 and December 11, 2019 are in force.
The Province has presently suspended enforcement of eviction orders. The eviction may be enforced when the Province recommences enforcement through the Court Enforcement Office (Sheriff).
Until the appellant delivers vacant possession to the landlord, or is evicted, he is ordered to continue to pay rent on the 1st of the month.
The appellant is to pay costs to the respondent in the amount of $2,400.00 inclusive of fees, disbursements and HST by paying $400.00 per month for six months, commencing on April 1, 2020.
This endorsement is effective when made. No formal order is required.
What does this case tell us about the suspension of normal court operations? Urgent matters will proceed. In this case, Tenant's motion was urgent because his appeal had been dismissed and the threat of eviction loomed. The Court notes in the order "the eviction of residents from their homes pursuant to eviction orders issued by the Landlord and Tenant Board are suspended unless the court orders otherwise, and then only with leave granted pursuant to the court’s procedures for urgent motions." As well, in the operative part of the order the Court orders at paragraph 29 "The Province has presently suspended enforcement of eviction orders. The eviction may be enforced when the Province recommences enforcement through the Court Enforcement Office (Sheriff)."
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