|
RTA - Appeals - Stay. Elguindy v. Galaxy Real Estate Core Ontario LP [expiry of eviction order: RTA s.81]
In Elguindy v. Galaxy Real Estate Core Ontario LP (Div Court, 2024) the Divisional Court dismissed an appeal from "a Review Order, ... of the Landlord and Tenant Board (the “LTB”), which dismissed a Motion to Void an Eviction Order ...", here where the issue was the expiry of an eviction order [if, after becoming effective, "it is not filed within .... six months with the sheriff" [RTA s.81]:[13] The Tenant argued that the Eviction Order was void and unenforceable because, pursuant to s. 81 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), more than six months had passed since the date of the order could first be enforced by the Sheriff. However, the Member found that when the Tenant filed an appeal to the Divisional Court, resulting in a stay of the LTB’s Eviction Order pursuant to section 25(1) of the Statutory Powers Procedures Act (“SPPA”), the clock on the six-month enforcement period was also stayed until the appeal was resolved by the Divisional Court. The Member noted that any other interpretation of the SPPA “could give rise to serious issues of unfairness as it would permit a tenant to frustrate the landlord’s right to enforce an order after an appeal is dismissed.” As such, the Member found that the Eviction Order was not void and could still be enforced by the Sheriff.
....
[19] With respect to the first issue, s. 81 of the RTA provides as follows:An order of the Board evicting a person from a rental unit expires six months after the day on which the order takes effect if it is not filed within six months with the sheriff who has territorial jurisdiction where the rental unit is located. [20] Pursuant to s. 25 of the SPPA, where a party appeals a tribunal’s decision to this Court, the matter is stayed until the resolution of the appeal:25(1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay of 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. [21] The LTB publishes Interpretation Guidelines “which are intended to assist the parties in understanding the Board’s usual interpretation of the law, to provide guidance to Members and promote consistency in decision-making.” However, a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case. Interpretation Guideline 10 contains a section headed “Expiry of Eviction Order” that states:Under s. 81 of the RTA, an order of the Board that evicts someone expires within 6 months of the date of the order unless it is filed with the appropriate Court Enforcement Office before that time. This expiration provision applies notwithstanding any appeal proceeding that may be initiated in a court of competent jurisdiction. Once an eviction order expires, there is no authority to renew it, nor will the landlord be able to apply again for the same remedy for the same time period. [22] The Eviction Order at issue was not filed with the Sheriff within 6 months of the date of the order. According to the Landlord, that is because the Tenant filed his appeal one week after the order was granted, which resulted in a stay of the order.
[23] The Tenant submits that the Eviction Order is void. In doing so he relies on the wording of s. 81 of the RTA, which states that such an order expires “six months after the order takes effect” if it is not filed with the Sheriff, and on Interpretation Guideline 10, which makes it clear that this provision applies even if an appeal proceeding has been initiated.
[24] The Landlord submits that whether the Eviction Order in this case had expired is a question of fact and, therefore, the Member’s determination that it had not expired cannot be appealed. I disagree. The issue is one of statutory interpretation, which is a question of law.
[25] In Guideline 10, the LTB has provided its “usual interpretation” of the applicable provisions, which support the Tenant’s position. However, it is clear that this interpretation was not binding on the Member and is not binding on this Court.
[26] Statutory provisions are interpreted in accordance with the “modern principle” of statutory interpretation that the legislative provisions must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament:Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at paras. 117-118). [27] It is also a “well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences … [A]n interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment.” (Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.), at para. 27).
[28] As set out by the Court of Appeal in Blue Star Trailer Rentals Inc. v. 407 ETR Concession Company Limited, 2008 ONCA 561, 91 O.R. (3d) 321, at paras. 21-25, when applying the modern approach to statutory interpretation the court should start with the ordinary meaning of the words used and then consider the context in which the language is found as well as the purpose of the statutory scheme.
[29] The ordinary meaning of the words in s. 81 has been considered by this Court in Briarlane v. Limas, 2020 ONSC 7118 (Div. Ct.), at para. 34, where the Court states:Neither s. 81 [of the RTA] nor s. 83 applies. The six-month time period in s. 81 begins to run on the day the eviction order takes effect. Given the Tenants’ appeal of the May 6, 2019 order, together with the stay of that order, the eviction order in issue here has not yet become effective. [30] The Landlord agrees with the Tenant that the issue in Briarlane was very different than the issue in this case and that it may be that the statement quoted above could be regarded as “obiter”. However, this does not detract from the fact that this is a court’s view of the ordinary meaning of the words in s. 81.
[31] The question then becomes whether I should adopt this meaning. Even though I may not be bound by the statement in Briarlane, I agree with it. The interpretation given in that case accords with the ordinary meaning of the words in the statute, the context in which is found and the purpose of the RTA.
[32] Part of the context of s. 81 is s. 25(1) of the SPPA, which provides for the stay of an eviction order if the order is appealed. Like the order in Briarlane, because the Eviction Order was appealed, it could not be acted upon until the Tenants’ appeal rights were exhausted. Interpreting the section in this way acknowledges the impact of s. 25(1) of the SPPA on the effectiveness of the Eviction Order.
[33] With respect to purpose, s. 1 of the RTA describes its purposes:The purposes of this Act are to provide protection for residential tenants from unlawful rent increase and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other provisions to informally resolve disputes. [34] The Briarlane interpretation is consistent with the purposes of the RTA, one of which is to balance the rights and responsibilities of residential landlords and tenants. One of the fundamental responsibilities of a tenant is to pay rent. The RTA should not be interpreted in such a way as to foster the ability of a tenant to continue to live rent free in the rental unit. If the Tenant’s interpretation is adopted, this is what would happen. The Eviction Order at issue would be considered void even though a court has determined that it was lawful. The Tenant would be able to continue to live rent free in the premises while the Landlord would be forced to take other steps to evict the Tenant, with all the time and cost that will entail.
[35] For these reasons, I find that the Member was correct when she found that the clock on the six month enforcement period was stayed until the appeal was resolved by the Divisional Court. . 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 (second?) review (set aside) of that order.
Here the court assesses the stay motion:[3] The test for a stay is as follows (RJR MacDonald v. Canada (AG), 1994 CanLII 117 (SCC), [1994] 1 SCR 311:1. Is there a serious issue to be tried (in this context, is there an arguable ground for the intended review motion)?
2. Will Mr Rosen suffer irreparable harm if the stay is not granted?
3. Does the balance of convenience favour granting the stay? ....
No Irreparable Harm
[22] An eviction, by itself, is not “irreparable harm” within the meaning of the test for a stay of an eviction order. The totality of the circumstances must be assessed to determine whether the harm is “irreparable” in a particular case. . 146 Osgoode Street Holdings v. Unknown
In 146 Osgoode Street Holdings v. Unknown (Div Court, 2023) the Divisional Court considered a motion to stay an eviction order (after a dismissed RTA 210 appeal, where the automatic stay was lifted) under the typical RJR MacDonald stay/interlocutory-injunction test. On the issue of irreparable harm' the court suggested that, on the proper evidence, eviction could constitute such irreparable harm:[27] On the materials before me, I am unable to make a finding that the tenant will suffer irreparable harm if a stay is not granted. The fact that a tenant is required to move does not, in every case, constitute irreparable harm. In this case, I have no information as to the tenant’s efforts to secure alternate accommodation. Indeed, it would appear that the tenant has made no such efforts because her position is that she has a “right” to remain in her unit, notwithstanding her non-payment of rent. The tenant also maintains she cannot secure alternate accommodation because she is a woman fleeing abuse. The LTB Member took into account the tenant’s vulnerable situation in delaying the eviction. The motion judge, too, ordered that the stay of the eviction order be lifted on February 28, 2023, one month after the release of his reasons for decision. I note that the tenant filed her motion for a stay with the court, without first serving it on the landlord, on the last possible day – February 27, 2023.
|
