|
RTA - Non-Payment of Rent Termination - Post-Lynch. Barreno v. Tomic
In Barreno v. Tomic (Ont Div Ct, 2026) the Ontario Divisional Court (Corbett J) considered one of the first RTA cases after the leading case (also Corbett J) of Lynch v. Ross Wilson Holdings Ltd. (Div Ct, 2026), here where the tenant seeks "to restore the statutory stay of the LTB eviction order".
The dismissal result, given Corbett J's re-vitalized emphasis on placing tight conditions on the granting of discretionary orders, is of little surprise:[1] Ms Barreno seeks to restore the statutory stay of the LTB eviction order, which was lifted by direction of O’Brien J. for failure to make payments in accordance with the prior direction of Matheson J. Ms Barreno claims that she made the required payment. O’Brien J. gave Ms Barreno a chance to establish that she made the payment. Ms Barreno did not satisfy O’Brien J. that the payment had been made and for that reason concluded that the stay be lifted.
[2] Ms Barreno moved to vary or set aside the order of O’Brien J. I directed her that she would need to review the order of O’Brien J. before a panel of three judges, rather than moving before a single judge to change the order that had been made. I noted to Ms Barreno that the review motion would not be heard before eviction. She could move for an interim stay pending the review motion, but that she would need to address the concerns that led O’Brien J. to lift the stay, including providing evidence to corroborate cash payment, an explanation for failing to follow the direction of Matheson J. that payment be made by etransfer. In the meantime, another payment has come due.
[3] Ms Barreno confirmed to the court by email that her motion materials to restore the stay were complete with the additional materials provided on June 9, 2026. The scheduled eviction is but a few days away. I would not delay matters to try to obtain responding materials from the respondent, and would decide the motion in writing on the basis of the materials submitted: the evidence tendered by Ms Barreno does not satisfy me that the disputed payment was made in cash, that Ms Barreno has any explanation for failing to follow the payment directions of Matheson J., and no evidence has been provided that the payment that fell due on June 1, 2026 has been paid.
Analysis
[4] Matheson J. directed that payments be made by etransfer. That direction has the status of an order of the court. Ms Barreno states that she made the payment in cash, to the landlord who is trying to evict her, because of persistent requests from the landlord to do that. This statement lacks any credibility and still does not explain why Ms Barreno would breach a court order. The payment terms directed by Matheson J. protected both the landlord, and Ms Barreno, from precisely this kind of problem. A party disregards a court order at her peril. In this instance, I decline to credit Ms Barreno’s evidence that the payment was made.
[5] O’Brien J. directed Ms Barreno to provide any documentary evidence she has that would support the cash payment having been made as claimed. The sole piece of evidence produced is an affidavit from Ms Barreno’s godfather that he has sometimes provided Ms Barreno with cash to help her out, because she is in serious financial difficulties. That may be, but that does not establish that cash was obtained close to the claimed payment date. What is missing is evidence of a cash withdrawal – whether by Ms Barreno or by her godfather – in an amount and on a day close to the date of the disputed payment. The unparticularized statement from the godfather, with no supporting documents, leaves the court with nothing to corroborate Ms Barreno’s claims that she made the disputed payment.
[6] Another payment was due on June 1st. Counsel for the respondents wrote to the court, noting that this payment, too, had not been made. Ms Barreno does not address the required payment for June 1st in her affidavit and provides no evidence that it has been made.
[7] The motion for an order restoring the stay of the LTB eviction order is dismissed.
[8] Ms Barreno addressed the three-part test for a stay in her materials. That test was applied by Matheson J. when she set payment terms. There is no serious issue that the order of Matheson J. addressed the stay issue on the basis of the proper test, and the payment terms were an integral part of her assessment of the balance of convenience. At this stage, the issue is whether there has been compliance with the terms that were ordered.
[9] Counsel for the landlord advises that Ms Barreno has failed to take required steps to perfect her appeal. I have not decided this motion on the basis of that alleged default. The appeal will no longer be urgent after the eviction has been carried out. Ms Barreno shall advise the case management judge, O’Brien J., by email by June 25, 2026, whether she intends to carry on with the appeal, and if she does, of the date by which she will perfect the appeal, failing which the appeal may be dismissed.
[10] Ms Barreno is entitled to seek a review of this decision before a panel of three judges of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act. However, such a review motion will not be heard before the eviction is carried out, and the court will not entertain a further stay motion pending a further review motion: Lynch v. Ross Wilson Holdings Ltd., 2026 ONSC 2471.
|
