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RTA - Appeals - Automatic Stay [SPPA s.25(1)]. Zadeh v. Abbas
In Zadeh v. Abbas (Div Court, 2024) the Divisional Court considered an RTA appeal at a case management attendence, and commented on the automatic (here referred to as 'statutory') stay provisions:[14] A stay of the Board’s eviction order is granted to make sure that tenants can preserve their tenancy while they pursue their appeal. The statutory stay is “intended to preserve the ability of this court to do justice – to both sides – at the conclusion of the case”: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 23, Keegan v. Goa, 2024 ONSC 4576 at para. 4.
[15] But the statutory stay does not give Ms. Zadeh the right to live rent-free pending her appeal. It is an abuse of process for a tenant to use an appeal to this court to continue to live in a rental premise without paying rent. As Justice Corbett noted in Jayaraj v. Metcap at para. 23, tenants should expect the stay of eviction might be lifted if they do not keep their rent current pending their appeal. . Rosen v. Reed
In Rosen v. Reed (Div Court, 2024) the Divisional Court dismissed a motion for a (non-automatic) stay, here in an RTA context where the appellant had lost the appeal (thus the auto-stay was lifted) but was seeking a time extension for a CJA s.21(5) panel review (set aside) of that order.
Here the court states promptness duties owed by an appealing RTA tenant:[27] Shore J. case managed Mr Rosen’s appeal to have it briefed and heard on the merits promptly. A party enjoying the benefit of a stay pending appeal has an obligation to proceed promptly, with diligence, to minimize the prejudice to the responding party of the stay being in place. Shore J.’s finding that there was a pattern of Mr Rosen seeking to delay the hearing of the appeal is justified on the record before Shore J. and weighs decisively in the balance of convenience. . Michael v. Kaiser et al
In Michael v. Kaiser et al (Div Court, 2024) the Divisional Court considered when the court may place conditions of rent payment on the automatic stay:[6] On June 3, 2024, I gave a direction that:As a condition of continuing with the appeal, the Tenant shall pay the ongoing rent, as of June 1, 2024, and by the first day of each month thereafter, and $4,768 towards the arrears owing as at April 30, 2024, by June 7, 2024. If the Tenant fails to make the payments on time the Landlord may bring a motion, in writing, to quash the appeal. [7] The Tenant failed to pay the ongoing rent and the Landlord brought a motion to quash the appeal. The Respondent submits that because there is an automatic stay upon filing of the appeal, the Court does not have jurisdiction to require ongoing payments of rent.
[8] The Court has jurisdiction to require ongoing payments of rent as a condition of continuing a stay of enforcement of LTB orders. Further, as set out in Schwartz v. Fuss, 2021 ONSC 1159 (CanLII) at paragraph 14:It is well settled that unjustified non-payment of rent while under the purported protection of the statutory stay of enforcement of LTB orders pending appeal, can be regarded as an abuse of process and is otherwise sufficient grounds to warrant the lifting of the stay. There is no authority, statute or regulation that permits a residential tenant to withhold ongoing rent pending an appeal. As the Divisional Court stated in Sivakova v. Timbercreek Asset Management, 2016 ONSC 281 at para. 4, “[a] tenant is not entitled to live in a rental unit free pending an appeal”. [9] The Divisional Court may quash an appeal in circumstances where the appeal is manifestly devoid of merit or if it is an abuse of process, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.). . Chaudhry v Cassandra Towers
In Chaudhry v Cassandra Towers (Div Court, 2024) the Divisional Court granted a LL's motion to lift the automatic RTA stay, here where the tenant fell behind in ordered rent payments:[1] The landlord brings a motion in writing to lift the automatic stay of relief relative to an appeal by the tenants from an order of eviction by the Landlord and Tenant Board relating to the premises at 327 – 265 Cassandra Boulevard, North York, ON M3A 1V4, currently occupied by the tenants.
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[3] The landlord has filed an affidavit which confirms the tenant has breached the court’s direction that he make a rental arrears payment on February 1, 2024 in the amount of $500 towards his obligation to pay arrears. As of the February 2, 2024, the accrued arrears of rent, less payment are shown on the landlord’s ledger as $24,323.41. . Delic v. 1864447 Ontario Ltd
In Delic v. 1864447 Ontario Ltd (Div Court, 2024) the Divisional Court cites a prior case on the nature of rent and the automatic stay pending an appeal:[5] As this court wrote 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. . Mao v. Liao
In Mao v. Liao (Div Court, 2024) the Divisional Court discussed the automatic stay that arises on filing an RTA s.210 appeal, and the implications that can arise where the tenant goes into rent default:[20] When an appeal from a decision of the Landlord and Tenant Board is filed in the Divisional Court, the Board’s eviction order is stayed pending the outcome of the appeal. A stay of the Board’s eviction order ensures that the tenant can pursue their appeal and preserve their tenancy while they do so. The statutory stay is “intended to preserve the ability of this court to do justice – to both sides – at the conclusion of the case”: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 at para. 23.
[21] But the statutory stay does not give Mr. Mao the right to live rent-free pending his appeal. The obligation to pay rent is a fundamental part of the landlord and tenant relationship. It is an abuse of process for a tenant to use an appeal to this court to continue to occupy a rental premise without paying rent. As Justice Corbett noted in Jayaraj v. Metcap at para. 23, tenants should expect the stay of eviction might be lifted if they do not keep their rent current pending their appeal. Of course, not every failure to pay rent will result in the stay being lifted and each case must be decided on its own facts.
[22] I am satisfied that it is appropriate to lift the stay of the Board’s eviction order in this case. Mr. Mao has not paid rent since late 2019 and now owes more than $70,000 in arrears. . 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
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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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