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SPereira Legal Services

Paralegal, Commissioner of Oaths, Notary Public

  •  

    Dismiss Motion for Stay

    COURT OF APPEAL FOR ONTARIO

         DATE:    20210305

    DOCKET: M52262 & M52263

    Harvison Young J.A. (In Chambers)

    BETWEEN                                           Angela Sterling

                                                       Landlord/Respondent (Responding Party)

    and

            Valerie Henry a.k.a. Valerie Henry Guillaume a.k.a Valerie Tsigi Guillaume a.k.a. Valerie Guillaume a.k.a. Val Guillaume

    Tenant/Appellant (Moving Party)

    Valerie Henry, self-represented

    Delaram Mehdizadeh Jafari, for the responding party

    Heard: March 5, 2021 in writing

    REASONS FOR DECISION

    Overview

    [1]     The moving party tenant moves in writing for a stay pending leave to appeal from an order made by Penny J. dated February 22, 2021. His order quashed the moving party’s appeal from an eviction order made by the Landlord and Tenant Board dated December 29, 2020, and ordered that the automatic stay of eviction be lifted, finding that the appeal from the eviction order was an abuse of process and manifestly devoid of merit.

    [2]     The motion is dismissed for the following brief reasons.

    [3]     The lengthy background to this matter is set out in considerable detail in the reasons of the motion judge (Sterling v. Guillaume, 2021 ONSC 1160) and need not be repeated here: see Sterling, at paras. 6-19. The first paragraph of his reasons, however, bears setting out here:

    In an order of December 29, 2020, the Landlord and Tenant Board found that the Tenant, Ms. Guillaume, had, in a series of incidents in 2019 and 2020, seriously impaired the safety of the Landlord, Ms. Sterling (who is 74 years of age). The LTB concluded that the assaults and threats by the Tenant against her Landlord were “extremely serious” in nature, that they “cannot be allowed to continue” and that "the tenancy needs to end.” The LTB, among other things, terminated the tenancy, ordered the Tenant to vacate the rental unit by January 15, 2021, and directed the Sheriff, if the Tenant did not move out as ordered, to “expedite the enforcement” of the eviction order.

    The Issues

    [4]     The only matter before this court today is whether a stay pending leave to appeal should be granted. The test is well established and well known: see RJR- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, and as set out below that motion is dismissed.

    [5]     As a preliminary matter, there is one other matter to be addressed.

    Yesterday afternoon, the responding party landlord emailed a request to the court dated March 4, 2021, asking that this court dismiss the motion on the basis of r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that “the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.” While I agree with the responding party that the proceeding “appears on its face to be frivolous, vexatious or otherwise an abuse of the process of the court”, I would not dismiss the motion on that basis. First, the moving party has not had the opportunity to respond to that request. Second, given my conclusion that the moving party tenant has not met the test for a stay, the motion is dismissed in any event, and it is not necessary to address this request under r. 2.1.

    Should a Stay Be Granted?

    [6]     Having reviewed the materials filed by the parties, I am satisfied that there is no basis upon which to grant the stay.

    [7]     First, there is no serious issue for appeal for the reasons set out by the motion judge for which he quashed the appeal before him. He found that the appeal before him was brought for the purpose of delaying eviction and continuing to live in the unit without paying rent. He set out the relevant history of the proceeding before him at para. 21 of his reasons:

    1. the Landlord's parallel application for termination of tenancy based on nonpayment of rent;

    2. the Tenant's previous harassment applications (both of which were dismissed for non-attendance at a LTB hearing);

    1. multiple adjournments sought by the Tenant;

    2. the Tenant's failure to comply with the LTB's March 25, 2019 Order to pay rent to Landlord;

    3. the Tenant's lengthy and persistent failure to comply (with the exception of November and December) with the Interim Order of November 4, 2019 to pay rent in trust to the LTB (with accumulated unpaid arrears of rent now in excess of $10,000); and

    4. the Tenant's failure to appear on December 18, in spite of being directed to do so by the LTB's order of December 17.

    [8]     These findings were amply grounded in the record. The moving party’s notice of motion to this court restates factual allegations and effectively attempts again to reargue the merits of the case before the Board. Her allegations of procedural unfairness and lack of natural justice were addressed by the motion judge and are entirely lacking in merit. There is no serious issue to be considered in an appeal.

    [9]     Second, I am not satisfied that the moving party has discharged her burden of establishing irreparable harm. While an eviction is certainly not to be taken lightly, there is no evidence that the moving party has taken any steps to obtain alternate housing or mitigate any harm. Nor can it be said that she has not played a very significant role in causing the situation that she now finds herself in, particularly her conduct towards her landlord as found by the Board to be “extremely serious” and which included assaults and threats of bodily harm.

    [10]     Third, even if the moving party tenant had established some irreparable harm, the balance of convenience in my view favours the landlord. The landlord is an elderly woman. The tenant does not explain why she could not obtain alternate accommodation. Until she leaves the premises, the landlord can do nothing to mitigate her circumstances and find another tenant who will pay rent and live peaceably.

    [11]     Finally, the overarching factor to be considered in applying the RJR- MacDonald test is the interests of justice. Here, they clearly favour the responding party landlord. It is worth noting that this is a case where the landlord is a 74-year- old woman and the tenant lives in the basement of the house. Given the history, the length of time the matter has been ongoing, and the facts as found by the Board and upheld by the motion judge, it is not in the interests of justice to grant a stay of the eviction order.

    [12]     The motion for a stay is dismissed. Costs are ordered payable by the moving party to the landlord in the amount of $500. 

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