Interm Relief on Appeal (LTB)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-10-07
CLNP Page ID: 1900
Page Categories: [Appeals]
Citation: Interm Relief on Appeal (LTB), CLNP 1900, <>, retrieved on 2022-10-07
Editor: Sharvey
Last Updated: 2022/04/03


Gent v. IMH Pool III LP, 2017 ONSC 7230 (CanLII)[1]

[26] In Elks v. Derouin, 2011 ONSC 6838 (CanLII)[2], a tenant appealed a Board Order to the Divisional Court, and the landlord brought a motion to quash the appeal. The tenant in that case owed $8,800.00 in arrears of rent, and there were "ongoing issues relating to the non-payment of rent". In the alternative to an order quashing the appeal, the landlord sought an order requiring the tenant to pay her arrears of rent, and her rent in full and on time as it came due. The landlord also requested that, "in default of any such payments the appeal shall be dismissed and the stay lifted". At paragraph 8 the Court commented that, "there appears to be no valid reason why the Appellant tenant should not pay the arrears of rent and ongoing rent pending the outcome of the hearing of her appeal before the Divisional Court sometime in the future".

[27] In requiring a tenant to pay her arrears and ongoing rent pending disposition of the appeal, the Court in Elks referenced subsection 134(2) of the CJA, emphasizing that the Court was entitled to "make any interim order that is considered just to prevent prejudice to a party pending the appeal". The Court also cited Rule 63.01 of the Rules of Civil Procedure and particularly the fact that the Divisional Court was entitled to lift the automatic stay "on such terms as are just".

[28] The Court in Elks ordered that the automatic stay of the Board's Order evicting the tenant was lifted unless the tenant paid all arrears of rent owed on or before a certain date, and unless the tenant paid her rent on the first day of each month moving forward, pending disposition of the appeal. The Court ordered that if the tenant were to default on either of these conditions, then the Court Enforcement Office, upon receiving affidavit evidence of such default, was directed to give immediate possession of the rental unit to the landlord: see also Sivakova v. Timbercreek Asset Management, 2016 ONSC 281[3]; Zwicker v. 6575 Halsey Inc., 2015 ONSC 2764.[4]

[29] In this case, the provisions of the Board's Order that relate to termination of the Tenant's tenancy and eviction are stayed pursuant to Rule 63.01(3) of the Rules and pursuant to the Certificate of Stay obtained by the Tenant. I agree with the Landlord that it is prejudiced by the Tenant's ongoing failure to pay her rent. As the Court stated in Sivakova, "[a] tenant is not entitled to live in a rental unit free pending an appeal". Indeed, both parties are legally required to continue to fulfill their respective legal and contractual obligations, pending disposition of the appeal.

[30] As such, if this appeal were permitted to proceed, I agree that a 'just" interim order to prevent further prejudice to the Landlord pending disposition of the appeal would require the Tenant to pay the arrears of rent that have accumulated since October 2017, being the first month after the Consent Order was issued, by a specified date, and to require the Tenant to pay her rent in full and on time as it comes due moving forward, pending disposition of the appeal. If she were to fail to do so, it would be only reasonable to permit the Landlord to move without notice before the Registrar of the Court, and upon affidavit evidence of non-compliance with the aforementioned conditions, to lift the stay on the portion of the Board's Orders terminating the tenancy and evicting the Tenant, pursuant to Rule 63.01(5) of the Rules. If the Tenant continues to fail to pay her rent, particularly in the face of an Order of this Court, then it is plain that eviction is the only way to prevent continued prejudice to the Landlord pending disposition of an appeal.

[5] [1] [2] [3] [4]

References

  1. 1.0 1.1 Gent v. IMH Pool III LP, 2017 ONSC 7230 (CanLII), <https://canlii.ca/t/hp4b4>, retrieved on 2022-04-03
  2. 2.0 2.1 Elks v. Derouin, 2011 ONSC 6838 (CanLII), <https://canlii.ca/t/fnvt1>, retrieved on 2022-04-03
  3. 3.0 3.1 Sivakova v Timbercreek Asset Management, 2016 ONSC 281 (CanLII), <https://canlii.ca/t/gmvmd>, retrieved on 2022-04-03
  4. 4.0 4.1 Zwicker v 6575 Halsey Inc., 2015 ONSC 2764 (CanLII), <https://canlii.ca/t/ghd4d>, retrieved on 2022-04-03
  5. Kaiman v. Graham, 2009 ONCA 77 (CanLII), <https://canlii.ca/t/228tk>, retrieved on 2022-04-03