2024 ONSC 170, 2024 ONSC 170

CITATION : Bachelor and Chapple v. Sun 2024 ONSC 170 DIVISIONAL COURT FILE NO.: 599/23 DATE: 20240108 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT Title: GARY BACHELOR and MANDY CHAPPLE, Appellants AND YAN SANDRA SUN, Respondent BEFORE: Leiper J .

COUNSEL: Tenants/ Appellants – unrepresented and acting in person Shayan Kamalie and Karan Khak , for the Landlord/Respondent HEARD: In writing Date of Decision: January 8, 2024 ENDORSEMENT [1] This endorsements follows a prior endorsement dated January 5, 2024 concerning a motion by the landlord respondent to lift the stay of eviction granted by the Landlord and Tenant Board pending the appeal filed by the tenants. The background to the motion is as follows. The appellants appealed a decision of the Landlord and Tenant Board concerning an eviction order related to a unit on Scotia Avenue in the City of Toronto.

The landlord, Ms. Sun raised concerns about the tenants’ failure to move the appeal forward and their ongoing failure to pay the monthly rent of $3,000 and the substantial arrears owing on the unit. [2] On October 27, 2023, Justice Nishikawa directed a case conference and required that the tenants confirm the accuracy of the rental arrears of $24,800 found by the LTB and that the monthly rent is $3,000. The tenants were also directed to provide the court with proof of payment of any rent payments that were not reflected in the LTB's calculations.

[3] A case conference was convened before me on November 20, 2023, at which I was advised that the tenants were not notified ofthe case conference. Accordingly, on November 22, 2023, I issued anticipated directions providing the tenants with 7 days to respondwith the information directed by Nishikawa, J. and for their submissions on the anticipated directions. I also directed that the landlordcould move before me in writing, on notice to the tenants to lift the stay of the eviction order if the tenants did not respond to the secondset of directions.

The landlord moved to lift that stay. [4] For reasons dated January 5, 2024, I found that the tenants had not responded and lifted the stay of the eviction order. [5] On January 5, 2024, after receiving the decision lifting the stay of the eviction order, the tenants communicated with the courtand provided a copy of an email which they had sent to the court (but had not provided to counsel for the landlord) on November 27,2023.

I issued a direction requiring that eviction proceedings await my further directions, following my review of the tenants’ materialand submissions from November 27, 2023, and January 5, 2024. [6] I have now received and reviewed the November 27, 2023 email. The email asserts that the landlord has not been open to anysettlement of the rent/arrears, did not provide a proper address for service and had filed a deficient notice of termination before the LTB.

The tenants have not filed any evidence that they have paid rent, or plan to pay rent nor did they provide any information on the amountof arrears they say are owed. They have not disputed the amount of arrears. [7] The landlord’s affidavit on the motion to lift the stay established that the tenants have taken advantage of the stay pending thisappeal to occupy the unit without paying the rent. The material filed by the tenants is entirely unresponsive to the court’s directions.

Theessence of the tenants’ position is that they should not have to pay rent pending their appeal, because of their unsworn and untestedallegations about the landlord’s unreasonableness. This is not a tenable position on a motion to lift a stay of eviction where a tenant isdefaulting on their rent payments for an extended period pending an appeal. As Corbett, J. wrote in Maphangoh v. Revera RetirementHomes, 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 willrequire 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 theprocess of the LTB and the court to live rent-free for a long time.

Appropriate terms for interim payment of rent and arrears will dependon all of the circumstances of the case – to allow tenants with good faith appeals, who intend to meet their rent obligations within areasonable period, to preserve their tenancies – and to bring an end to failed tenancies that cause further loss to the landlord every monththat goes by. [8] This principle applies in these circumstances. The tenants have defaulted in their rent obligations and provided no indication thatthey intend to begin now.

This has the markings of a failed tenancy that will cause further loss to this landlord if it continues.Accordingly I order the following: 1. The stay of the eviction order made by the Landlord and Tenant Board matter is lifted, effective January 8, 2024; 2. The tenants shall advise the court, no later than January 19, 2024, on notice to the landlord if they intend to pursue their appeal and ifso, to propose a

schedule by which they will file their materials; 3. If the tenants do not advise the court, on notice to the landlord, by January 19, 2024 as to their intentions in pursuing this appeal, theappeal will be dismissed as abandoned. [9] The landlord may prepare an order in these terms and provide it to the court for issuing and entering. _______________________________Leiper J. Released: January 8, 2024