) ) CHRISTOPHER J. ROPER Appellant (Tenant) – v. –, 2017 ONSC 1541

CITATION : Roper v. Mian, 2017 ONSC 1541 DIVISIONAL COURT FILE NO.: 2/17 LTB No.: CEL-59013-16 DATE: 20170303 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) CHRISTOPHER J. ROPER Appellant (Tenant) – and – MOHAMMAD MIAN Respondent (Landlord) ) ) ) ) ) ) ) ) ) ) Stefan Juzkiw , for the Appellant (Tenant) and Christopher Roper acting in person Tristen Audet , for the Respondent (Landlord) ) ) HEARD at Toronto: March 3, 2017 Kiteley J. ( Orally ) adjournment issue [ 1 ] As Mr.

Roper points out, the title of proceedings is probably inaccurate because it should reflect the same style of cause as was before the Landlord and Tenant Board. At any rate, we can overlook that for today. [ 2 ] I have a request by Mr. Roper to adjourn this motion to “the earliest possible date” but extensive correspondence between Mr. Roper’s recently retained lawyer and counsel for the landlord has not succeeded in arriving at terms of an adjournment. As a result of that, Mr.

Roper made a formal request for an adjournment and counsel for the landlord has resisted and is opposed to any adjournment. [ 3 ] The motion that is before me today has been brought by the landlord for various orders including dismissing the appeal, lifting the stay, security for costs. [ 4 ] The notice of motion and affidavit were served on Mr. Roper on January 31, 2017 by courier so he has had the motion record in his hands for a month, today being Friday, March 3, 2017.

The factum and book of authorities were served more recently but within the time required by the Rules namely, by courier on February 21, 2017. [ 5 ] In order to arrive at a conclusion about whether to grant the adjournment or not, I need to review how it is that this matter came before this court. [ 6 ] On July 25, 2016, the landlord’s application was heard by the Landlord and Tenant Board (the “Board”) for an order to terminate the tenancy and evict the appellant.

The Board made an order that the appellant pay the respondent $13,310.00 on or before July 31, 2016 in order to continue the tenancy and made an order that if the appellant failed to make that payment by that deadline, the tenancy would be terminated and the appellant would vacate on or before August 9, 2016.

That is referred to as the “first arrears order”. [ 7 ] On August 29, 2016, the appellant requested that the Board review the first arrears order and as a result of that request, the first arrears order was stayed. [ 8 ] On September 16, 2016, the Board heard the review of the first arrears order and concluded that the payment made by the appellant on July 25, 2016 in the amount of $10,710 was insufficient to satisfy the arrears. As of the date of the hearing of the review,

the arrears were $7,800 and the first arrears order was vacated and replaced with a new order that included a timetable for payment of rent, specifically the tenant was to pay on or before the first of the month and was to make payments to rectify the arrears on October 15, November 15 and December 15, 2016. That is referred to as the “final arrears order”. There is no appeal from that order. [ 9 ] The tenant did not pay the rent as ordered on October 15, 2016 and did not pay the arrears by October 15, 2016.

As a result, the landlord applied to the Board for an eviction order which was issued and dated October 21, 2016. There is no appeal from that order. [ 10 ] On October 31, 2016, the tenant requested that the October 21, 2016 order be reviewed. The request for review provoked the stay of the eviction until the review was resolved. On November 24, 2016, the Board heard the motion to set aside and issued an order dated December 5, 2016 dismissing the motion to set aside and lifting the stay immediately.

This is referred to as the final eviction order. [ 11 ] On about December 23, 2016, the tenant filed a notice of appeal of the December 5, 2016 order. [ 12 ] As I mentioned, on January 31, 2017, the landlord served the notice of motion that is before me today. According to the tenant, he recently retained a lawyer and the correspondence which is before me indicates that the first letter by his lawyer was dated February 24, 2017, so roughly 10 days ago and roughly 20 days after service of the notice of motion. As of this date, the tenant has filed no responding material to the motion.

His lawyer in the correspondence and according to Mr. Roper today wants to exercise what is described as the “right” to cross-examine the two deponents on the affidavits in support of the motion. [ 13 ] Mr. Roper has no lawyer today and asked that the matter be adjourned. Up until this point, there has been some attempt to arrive at a timetable but as of the hearing of this motion there was no success in reaching a timetable for how the matter might move forward quickly. [ 14 ] I decline to adjourn the motion. The material indicates that Mr. Roper has represented himself before the Board.

The review of the steps taken there indicate that he has mastered the processes before the Board. He is articulate as I could tell from listening to him today and I can see that his written work is equally as articulate. For example, looking at Tab B of the motion record, there is a three page extensive letter to the Board dated August 28, 2016 attached to which is almost a five page

Schedule A and

Schedule B. He is able to make representation on the landlord’s motion. There are significant arrears. In response to my question as to when he last paid rent, he said “oh July or August”. The issue of the amount of rent is not the subject matter of this appeal. [ 15 ] After serving and filing his notice of appeal, Mr. Roper did what he was required to do. He ordered the transcript. He received it on February 1 or February 2 and he therefore has 60 days from February 1 to prefect his appeal. [ 16 ] One aspect of the motion before me today is that I dismiss the appeal.

I will not hear submissions on dismissal of the appeal. I will hear submissions on the other relief sought in the notice of motion. [ 17 ] The tenant’s motion to adjourn this motion is dismissed. EXTENDED recess [ 18 ] Earlier this morning, I declined to give Mr. Roper an adjournment of the motion and indicated that I would hear submissions on behalf of the landlord for all the relief sought except dismissal of the appeal. [ 19 ] I did hear submissions by Ms. Audet and then took a recess to give Mr. Roper an opportunity to collect his thoughts. When we returned at 12:10 p.m., Mr.

Roper indicated that he had been in communication by text with his lawyer who was currently in an examination of some sort at the north end of the city but his lawyer has committed to being here at 2:00 p.m. so Mr. Roper asked for an extended recess to give his lawyer an opportunity to get here. [ 20 ] I suspect his lawyer will be somewhat challenged by making responding submissions when he has not heard the submissions that we have heard but I assume that his lawyer has read the factum and has familiarized himself with the brief of authorities and as Mr.

Roper just told me, he has made copious notes and he has a good memory so he will bring his lawyer up to speed. So, I am recessing until 2:00 p.m. It is now 12:17 p.m. [ 21 ] Mr. Roper you need to tell your lawyer that 2:00 p.m. means 2:00 p.m. I expect him to be on time and I will not be holding it down for him to be ready. So, any time that you are going to transfer information from you to him, it has to be done in that way.

This is the only matter on my list in court but I actually have another matter later this afternoon and I do not have endless time to deal with this matter. [ 22 ] Counsel for the moving party took twenty minutes. Mr. Roper you can tell your lawyer that he will not get more than twenty minutes and then Ms. Audet will get no more than five minutes in reply. [ 23 ] We will pick up where we are now leaving off at exactly 2:00 p.m.. LIFT OF AUTOMATIC STAY [ 24 ] I have already done two instalments of oral reasons today. The first was when I declined to adjourn as Mr. Roper had requested.

The second was just before the lunch recess when instead of hearing from Mr. Roper, I recessed for two hours to give his lawyer an opportunity to get here. This is the third instalment of the oral reasons arising out of the events today. [ 25 ] In my earlier ruling, I dismissed Mr. Roper’s request to adjourn this motion. I did order that I would not hear submissions on

the request to dismiss the appeal but would hear submissions on other relief sought. [ 26 ] Ms. Audet is asking that I lift the automatic stay and that I order security for costs. I heard submissions from her and then recessed to give Mr. Roper an opportunity to collect his thoughts. After that recess, he asked that the matter be held down until 2:00 p.m. so that his lawyer could attend. I agreed to resume at 2:00 p.m. His counsel arrived at 2:15 p.m. [ 27 ] On behalf of Mr. Roper, his lawyer asked to raise a preliminary issue about the content of the affidavits relied on by the landlord.

I declined to hear his submissions on that preliminary issue. The critical facts for purposes of the attendance today are largely found in the decisions of the Board. [ 28 ] During his submissions, counsel also wanted to call his client as a witness. I declined to allow him to do so. As discussed earlier today, Mr. Roper was served with the motion materials January 31 and for whatever reason, decided not to file any responding material. [ 29 ] I considered it unfair to permit him to do so in court in the absence of the landlord and without giving counsel for the landlord an opportunity to consult with her client.

I then heard submissions from his counsel. [ 30 ] Before dealing with the two submissions that Ms. Audet makes, I want to make an observation about my belated understanding that Mr. Roper is a lawyer. In my oral reasons this morning with respect to refusing to adjourn the matter, I did not realize that he was a lawyer. It was only during the course of Ms. Audet’s submissions that that became apparent. [ 31 ] I understand that his practice is restricted to immigration law, but I infer that as a lawyer, he has familiarity with the court process.

Indeed, as part of her submissions, counsel referred me to the decision of the Divisional Court in Roper v. Papadakos , 2013 ONSC 6547 in which Mr. Roper represented himself in this court in connection with an appeal he had brought in a different tenancy. As well, counsel has referred to a decision of the Tax Court in Roper v. Her Majesty the Queen 2012 TCC 157 . Mr. Roper was represented in the Tax Court proceedings. Based on the documentation in this case before me including filings at the Board and on those decisions, it is clear that Mr.

Roper has familiarity with the Rules and proceedings in this court. [ 32 ] The notice of appeal relates to the order dated December 5, 2016. There is no appeal in this court as to the amount of rent owed and therefore no dispute as to the rent outstanding. In response to my question, Mr. Roper said that he had not paid rent since “oh July or August” but it appears from the decisions of the Board, that he made a lump sum payment in July that did not include the July rent. [ 33 ] He has lived in the premises without paying rent for the period July 1, 2016 to and including March 3, 2017.

This appeal does not engage any issue as to the amount he owes. [ 34 ] Pursuant to s. 25(1) of the Statutory Powers and Procedures Act , on serving and filing the notice of appeal on or about December 23, the order dated December 5 was stayed. The certificate of the Acting Registrar of the Divisional Court confirming the stay is dated January 4, 2017. [ 35 ] Pursuant to Rule 63.01(5), I am satisfied that the stay pursuant to s. 25(1) of the Statutory Powers and Procedures Act should be lifted. [ 36 ] All of the issues raised in the notice of appeal are questions of mixed fact and law.

Appeals pursuant to the Residential Tenancies Act are on errors of law only and on the basis of the existing notice of appeal, there appears to be no merit to the appeal. [ 37 ] Mr. Roper’s lawyer suggested that his client could amend the notice of appeal particularly since he now has counsel. I agree that he could amend his notice of appeal but he has known since January 31, 2017 when he received the motion to dismiss his appeal that the contents of his notice of appeal were significant. If he intended to amend his notice of appeal, he has had thirty-three days to do so.

In this motion by the landlord, I rely on the record that is before me. [ 38 ] As indicated, the tenant has continued to occupy premises without paying rent since July 2016, a period of 8 months. This is not the first time this tenant has attempted to avoid his legal obligation to pay rent while maintaining occupation as result of taking advantage of the automatic stay. For that reason, I infer that the appeal maybe frivolous and vexatious.

I am reinforced in that inference by the fact that the tenant has not perfected his appeal although in a position to do so since February 1, 2017 when he received the transcript. It is the case that he has 60 days from February 1 but if he had wanted to demonstrate that his appeal was not frivolous and vexation and had merit, he could easily have perfected the appeal before today.

I am reinforced in my inference that the appeal may be frivolous and vexatious by the fact that the tenant has not filed responding material to the motion and I am further reinforced in the drawing of that inference by the fact that the tenant has not made a payment of any kind in the face of this very serious motion. [ 39 ] Mr. Roper chose not to file responding affidavit to this motion. I have no evidence he has the ability to pay and indeed if he did, he would have paid. The longer the stay, the greater the hardship on the landlord with no imminent risk to the tenant.

The evidence of the landlord is that he is suffering financial hardship by reason of the non-payment. [ 40 ] Counsel for Mr. Roper argued in his submissions that if I lift the stay, his client will not have the opportunity to pursue his appeal. I am not dismissing the appeal. Mr. Roper may be able negotiate with the landlord to remain in occupation pending the outcome of the appeal but he still will have his right to pursue his appeal. [ 41 ] For all of those reasons, the stay will be lifted. security for costs [ 42 ] I turn to security for costs.

For reasons indicated earlier, there is good reason to believe the appeal is frivolous and vexatious

and there is no evidence from Mr. Roper that he has assets to pay costs of the appeal. Indeed, in the course of submissions, I invited his counsel to tell me an outcome with respect to this security for costs motion and he first said his client would pay $3,000 within 20 days and then corrected that to say within 30 days. [ 43 ] I conclude that he does not have evidence before me that he has assets to pay the costs of the appeal.

This is an appropriate case to make an order for security for costs pursuant to Rule 61.06. [ 44 ] I have reviewed the Bill of Costs prepared by counsel for the landlord and I consider it excessive. I will be dealing shortly with the costs of today so that leaves only costs of the appeal. I did not review the transcript but it appears to be quite a brief document. The completion by the counsel for the landlord of the factum and book of authorities and responding record, if any, will not be onerous.

I will therefore establish security for costs required to be paid into court in the amount $2,500 and, as indicated when I read the handwritten endorsement, that will be required to be paid at the time he perfects the appeal. COSTS [ 45 ] I have heard submissions as to costs of today. I agree with counsel for Mr. Roper that the costs outline is very generous. Ms. Audet is a 2016 call and while her motion record, factum, book of authorities and presentation were very professional, the amount of time that has been logged is excessive for a motion such as this.

I am allocating $2,000 on account of fees, HST on top of that and $710 on account of disbursements. conclusion [ 46 ] I have endorsed the back of the Motion Record as follows: “Motion by landlord to dismiss appeal, to lift the stay pursuant to s. 25(1) of SPPA, security for costs and other relief. In oral reasons, I have made a ruling not to adjourn this motion as Mr. Roper requested.

At his request, the hearing resumed at 2:15 when his lawyer arrived. [ 47 ] For oral reasons given, order to go as follows: (1) stay pursuant to s. 25(1) SPPA is lifted; (2) appellant shall perfect his appeal by April 3, 2017; (3) contemporaneously with perfecting his appeal he shall pay into court the sum of $2,500 as security for costs in this appeal; (4) if the appellant fails to comply with paragraphs 2, 3 & 6, the landlord may bring a motion without notice before me to dismiss the appeal; (5) counsel for landlord may take out this order without approval as to form and content by tenant or his counsel; and (6) the tenant shall pay costs of today fixed in the amount of $2,970 inclusive of fees, disbursements and HST calculated as $2,000 for fees and $260 for HST and $710 disbursements including HST.

The tenant shall pay those costs by April 3, 2017 and no later than when he perfects his appeal.” ___________________________ KITELEY J. Date of Reasons for Judgment: March 3, 2017 Date of Release: March 16, 2017 CITATION : Roper v. Mian, 2017 ONSC 1541 DIVISIONAL COURT FILE NO.: 2/17 LTB No.: CEL-59013-16 DATE: 20170303

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: CHRISTOPHER J. ROPER Appellant (Tenant) – and – MOHAMMAD MIAN Respondent (Landlord) ORAL REASONS FOR JUDGMENT KITELEY J . Date of Reasons for Judgment: March 3, 2017 Date of Release: March 16, 2017