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RTA - Appeals - Automatic Stay [SPPA s.25(1)]

. Renée v. 10887609 CANADA INC.

In Renée v. 10887609 CANADA INC. (Div Court, 2023) the Divisional Court lifts the automatic RTA R63.01(1) stay ['Eviction Order Under Residential Tenancies Act, 2006'], under R63.01(5) ['Lifting Stay']:
[45] Under Rule 63.01(5) of the Rules of Civil Procedure, a judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by Rule 63.01(3) does not apply. The Court may grant an order under the provisions of Rule 63.01(5) that the automatic stay of eviction under Rule 63.01(3) be lifted on the basis that an appeal is without merit.
. Bachelor and Chapple v. Sun

In Bachelor and Chapple v. Sun (Div Court, 2023) the Divisional Court considers (and grants) a motion by a landlord to lift the automatic stay of an RTA eviction order [under SPPA s.25(1)]:
[7] The landlord’s affidavit on the motion to lift the stay established that the tenants have taken advantage of the stay pending this appeal to occupy the unit without paying the rent. The material filed by the tenants is entirely unresponsive to the court’s directions. The essence of the tenants’ position is that they should not have to pay rent pending their appeal, because of their unsworn and untested allegations about the landlord’s unreasonableness. This is not a tenable position on a motion to lift a stay of eviction where a tenant is defaulting on their rent payments for an extended period pending an appeal. As Corbett, J. wrote in Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739 (CanLII) at para. 15:
The obligation to pay rent as it falls due is fundamental. Where a tenant has defaulted in rent obligations for a long time, this court will require the tenant to make rent payments and reasonable payments on account of arrears to maintain a stay of eviction pending appeal. The statutory stay is intended to preserve the court’s ability to do justice at the end of the appeal, not to enable a tenant to abuse the process of the LTB and the court to live rent-free for a long time. Appropriate terms for interim payment of rent and arrears will depend on all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within a reasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every month that goes by.
[8] This principle applies in these circumstances. The tenants have defaulted in their rent obligations and provided no indication that they intend to begin now. This has the markings of a failed tenancy that will cause further loss to this landlord if it continues. ....
. Abdalla et. Al. v. Koirala

In Abdalla et. Al. v. Koirala (Div Court, 2023) the Divisional Court considered (and allowed) a LL's motion to quash, here on 'abuse of process' grounds (abuse of the automatic stay on appeal):
The appeal is an abuse of process

[30] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. An appeal may be quashed where it amounts to an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (CanLII) at para. 17.

[31] A litigant who brings an appeal from an order of the Board to get an automatic stay of an eviction order, is abusing the process of the court: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. Where a tenant has failed to pay rent for a persistent and lengthy period without a reasonable explanation or any intention to remedy the situation, this may amount to evidence that the tenant’s appeal is an abuse of process at the expense of the landlord: Wilkinson, at para. 34 and Oladunjoye, at para. 27.
. Oz v. Shearer

In Oz v. Shearer (Div Court, 2023) the Divisional Court considered the related administrative automatic stay-pending-appeal provisions [SPPA s.25 and RCP R63.01(3)], here in an RTA context:
[5] The Tenants appealed that decision to the Divisional court pursuant to s. 210(1) of the Residential Tenancies Act, S.O. 2006, c. 17.

[6] Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22, (SPPA) unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court. Section 25 provides as follows:
Appeal operates as stay, exception

25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.

Idem

(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2 (1) of that Act is not an appeal within the meaning of subsection (1)
[7] A similar provision expressly referencing an eviction order under the Residential Tenancies Act, 2006, is set out in Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant portions of that rule provide:
Eviction Order Under Residential Tenancies Act, 2006

(3) The delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provision of the order,

(a) declaring a tenancy agreement terminated or evicting a person; or

...

Lifting Stay

(5) A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1), (3) or (4) does not apply.
[8] It is important to note that s. 25 of the SPPA is somewhat broader than Rule 63.01(3), since the latter applies only to an LTB order “declaring a tenancy agreement terminated or evicting a person”, while the former could apply to any order granted by any tribunal.

[9] When the Notice of Appeal from an eviction order is filed, the court office will, when requested, issue a certificate of stay so that the Sheriff’s office knows not to enforce the eviction order until the stay is lifted or the appeal is dismissed.
. Draxl v. Truevine

In Draxl v. Truevine (Div Court, 2022) the Divisional Court dismissed a RTA appeal motion to quash advanced on the argument that the tenant only appealed to take advantage of the automatic stay on appeal:
[19] I move then to the abuse of process submission, based on the failure to promptly pay rent and also to meet the obligation to pay arrears as set out in the directions given at the above case conference.

[20] Unlike some cases we see where an appeal appears to have been brought solely for the purpose of extending the time before the eviction takes place, in this case the tenant has taken steps that suggest that was not the sole purpose of her appeal. Those steps are her partial payment of rent and her steps taken to fully complete her appeal materials. I am therefore not persuaded on the record before me that the appeal was commenced solely for the purpose of delaying the eviction order.
. Hazlett v. Cantusci et al.

In Hazlett v. Cantusci et al. (Div Ct, 2022) the Divisional Court quashed an appeal [under CJA 134(3)], not on the typical grounds of lack of merit but under the more recently-asserted ground of abuse of process [alleged where the appeal is filed only to obtain the automatic stay under R63.01(3)]:
[17] The landlord submits that the tenant’s appeal cannot succeed and should be quashed because it raises no question of law. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank 1995 CanLII 3502 (ON CA), 1995, 24 OR (3d) 1 (C.A.). The court in Schmidt did point out that this power is to be exercised sparingly because “it is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal”.

[18] In the present case, I am not persuaded that the tenant’s appeal could not possibly succeed. The tenant advances a number of points about the procedural fairness of the hearing and about the operation of s. 83 of the RTA, which could conceivably be characterized as raising questions of law and which on their face are not clearly frivolous. Accordingly, I decline to quash the appeal on the basis of a failure to raise a question of law.

The appeal is an abuse of process

[19] In his oral argument at this motion, the tenant made it clear that he had no intention of paying the accumulated arrears to the landlord and moreover, he intended to pursue civil proceedings or further proceedings before the Landlord and Tenant Board for substantial damages which, he claims, would exceed any accumulated rental arrears. As noted previously, the tenant has steadfastly refused to pay any rent or water charges since September 2020, a period of 18 months, thereby accumulating arrears in the sum of $27,000 plus accumulated water charges. There is no justification for this position and it is a clear abuse of the stay provision in Rule 63.01(3).

[20] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.

[21] This court has recently held that it is an abuse of process to commence an appeal from an order of the Board in order to take advantage of the automatic stay to avoid paying rent due to the landlord, see Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 (Favreau J.), in which the court stated (at para 25):

[25] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye v. Jonker, 2021 ONSC 1199 (Div.Ct) at para. 27.

[22] In all of the circumstances, I have come to the conclusion that the tenant’s non-payment of his rent since September 2020 and his avowed intention to continue to refuse to pay rent is an abuse of the process of this court.
. Westdale Properties v. Reisher

In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal on being of "devoid of merit". Here the court denies a landlord's request to lift the automatic RTA stay on appeal [SPPA 25(1)]:
VI: SHOULD THE STATUTORY STAY BE LIFTED?

[43] This Court may lift a statutory stay on an appeal where the respondent has shown "demonstrable and unusual hardship […] and […] a reasonable measure of protection can be afforded”: see Minas v. Adler, 2022 ONSC 3053 at para.17; Ryan v. Laidlaw Transportation Ltd. 1994 CanLII 616 (ON CA).

[44] Westdale submits that the finding of Ms. Reisher’s interference with the reasonable enjoyment of their premises by other tenants is entitled to deference and ought to give rise to a lifting of the statutory stay.

[45] While Ms. Reisher does not challenge her problematic conduct, the evidence from the hearing reveals that it is grounded in a mental disorder, that Ms. Reisher’s community treatment team has taken steps to try and ameliorate her behaviour and she is anticipated to have the services of a more assertive community team in the near future.

[46] Lifting the stay at this stage would effectively determine the appeal, because Ms. Reisher would lose her housing. This is the issue on the appeal. On balance, at this stage, I cannot conclude that there is “unusual hardship” which would justify lifting the stay.
. Oz v. Shearer

In Oz v. Shearer (Div Court, 2023) the Divisional Court cautioned tenants on their rent behaviour during the running of the SPPA s.25 appeal automatic stay:
[11] Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22, unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court.

[12] Following receipt of the Tenants’ Notice of Appeal, this case conference was scheduled. My direction to the parties required the Tenants to confirm the accuracy of the outstanding rent found by the LTB, or, if they say that they are not accurate, to state (a) the current amount of arrears; (b) the current monthly rent; and to provide the Court with proof of payment of any rent payments the Tenants have made that are not reflected in the LTB’s calculations.

[13] The direction stated: “At the case management conference, the court may make orders respecting payment of ongoing rent and rental arrears as a condition of continuing the stay pending appeal in this court”.

[14] As Corbett J. stated in Maphangoh v. Revera Retirement Homes, 2021 ONSC 7739, at para. 15:
The obligation to pay rent as it falls due is fundamental. Where a tenant has defaulted in rent obligations for a long time, this court will require the tenant to make rent payments and reasonable payments on account of arrears to maintain a stay of eviction pending appeal. The statutory stay is intended to preserve the court’s ability to do justice at the end of the appeal, not to enable a tenant to abuse the process of the LTB and the court to live rent-free for a long time. Appropriate terms for interim payment of rent and arrears will depend on all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within a reasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every month that goes by.
[15] It is clear law that a tenant may not grant himself a rent abatement or unilaterally deduct expenses from their rent – rent is to be paid unless and until the LTB grants a rent abatement. Mr. Shearer is no stranger to this principle, the case relied on is one where Mr. Shearer unsuccessfully advanced the same argument he tried today: Shearer v. Oz, 2021 ONSC 7844, at para. 13.


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Last modified: 15-02-24
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