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  • Petar Guzina

Residential Tenancies at Div. Ct. During the 1st week of the Suspension of Normal Court Operations

The first three matters heard by the Divisional Court in Ontario and published on CanLII since the suspension of normal court operations due to COVID-19 are related to appeals of Landlord and Tenant Board decisions. This blog post is a little longer as a result. I will cover two of the cases in further detail in their own posts, but want to look at them briefly here to see if there is some insight we can gather from the first few cases heard under the suspension of normal court operations.

Gharib v. Mohos, 2020 ONSC 1872

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. After having exhausted the LTB motion and review process, the Tenant filed an appeal with the Divisional Court on January 2, 2020. The Tenant took no steps to perfect the appeal and it was dismissed by the Registrar. The Court heard the Tenant's motion to set aside the Registrar's dismissal.

Paragraph 23 of the Order provides a succinct summary of the case and decision to deny the motion to set aside dismissal order of the Registrar:

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.

In this case, Tenant's motion was urgent because his appeal had been dismissed and the threat of eviction loomed. It may be noteworthy that the Judge in this matter did not become aware of the suspension of evictions during the suspension of normal court operations until after parties had made arguments.

The Court ordered that the Registrar's dismissal of the appeal is upheld and the eviction orders of the LTB are in force. Is it now open to the Landlord to seek leave pursuant to the court's procedures for urgent motions? It would appear from the order as whole that the urgent motion process is separate from the Divisional Court Appeal process. At paragraph 10 the court states that "[t]he only issue is whether the Court should grant the appellant’s motion to set aside the order of the Registrar dismissing the appeal for delay and should extend time for perfection of the appeal." The Court also notes earlier 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."

I am struck by the Court's order 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)." What effect, if any, would this statement have on an urgent motion brought to enforce eviction? In my reading of the order as a whole, the Court is leaving it open and being careful to not make a determination on the enforcement of the eviction earlier than the lifting of the suspension as that is something that would be properly considered on an urgent motion.

Young v. CRC Self-Help, 2020 ONSC 1874

The Tenant brought a motion to reinstate his tenancy pending the hearing of his appeal. The Tenant had been evicted by the Sheriff the day after his review request was denied and was therefore not in possession of the unit when the appeal was filed.

Divisional Court found that it does have jurisdiction to reinstate the Tenant and after applying the test in RJR MacDonald ordered the Tenant reinstated.

In considering the "irreparable harm" portion of the test, the Court found:

Even without the pandemic, Mr. Devin would likely meet the requirement to show irreparable home. During the current situation, when all Ontarians are being urged to practice social isolation for their own health and to prevent the spread of the virus, there is no doubt that if Mr. Devin is not restored to his unit, he faces a real risk of irreparable harm.

The Court also made the following observations at paragraphs 66 and 67:

First, this motion should not have been necessary. Given the current pandemic, including the order made the Chief Justice suspending all evictions and the direction of the Board that only urgent eviction matters will be heard, one would expect that landlords such as the CRC would work cooperatively with tenants to ensure that tenants are not left without a home pending the hearing of an appeal.

Second, and the flip side of my first comment, the Chief Justice’s order and the Board’s direction do allow for urgent eviction hearings or the enforcement of eviction orders in appropriate circumstances. Therefore, while I was not persuaded that CRC’s evidence was sufficient to prevent Mr. Devin from returning to his unit, if Mr. Devin does engage in unlawful behaviour or behaviour that endangers other tenants, his right to remain to remain in his unit may be revisited and Mr. Devin should therefore ensure that he abides by the terms and spirit of the settlement agreement and other legal obligations arising from his tenancy pending the hearing of the appeal.

With respect to the statement that the Court expects landlords such as CRC to work cooperatively to ensure tenants are not homeless while awaiting an appeal, it should be noted that CRC is a provider of affordable housing geared specifically toward the hard to house.

With respect to the second observation, it is an acknowledgement from the court that, given the right circumstances, evictions may take place during the suspension of normal court operations. However, the Court's analysis with respect to "irreparable harm" shows that the province's urging to practice social isolation will weigh in favour of not evicting during the normal suspension of court operations. Until we have a decision granting leave to enforce an eviction, The question of what the right circumstances are that would result in the granting of leave to enforce an eviction remains open.

Atkinson v. Lysak, 2020 ONSC 1878

The Tenant had been ordered evicted by the Board and had appealed to Divisional Court. The Tenant was required to pay rent arrears into court and to perfect her appeal by February 28, 2020. She did not do so and on March 6, 2020, the Registrar dismissed her appeal and lifted the stay on the enforcement of the Board's eviction order. In the meantime, the Tenant had made multiple request of the Court that she not be required to follow the requirements ordered by the court with respect to paying into the Court and perfecting her appeal. The Tenant made this motion seeking relief because she has no where to go given the current crisis.

The Divisional Court found that given the current suspension of evictions this motion is not urgent and directed it to be placed on a list of non-urgent matters as enforcement cannot be enforced without an urgent motion from the landlord during the suspension of normal court operations.

Key Points

  • The Divisional Court Appeal process is separate from the urgent motion process for leave to enforce eviction orders.

  • The government directions with respect to "social distancing" and "self-isolation" will weigh in favour of maintaining housing for tenants.

  • Tenant motions to stay an eviction may not be seen as urgent during the suspension of normal court operations.

  • The Court recognizes that the Board is only proceeding on urgent matters for eviction hearings.

  • The question of what the appropriate circumstances are for the Court to grant leave to enforce an eviction order remains open.

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