2023 ONSC 4507, 2023 ONSC 4507

CITATION : Torok v. Starlight Canadian Residential Growth Fund II, 2023 ONSC 4507 DIVISIONAL COURT FILE NO.: 359/23 and 384/23 DATE: 20230714 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: RICHARD TOROK, Appellant AND: STARLIGHT CANADIAN RESIDENTIAL GROWTH FUND II and SIGNET REALTY INC., Respondents BEFORE: D.L. Corbett J. HEARD: in Writing ENDORSEMENT D.L.

Corbett J. [ 1 ] The court has now had an opportunity to review materials related to appeal from the LTB's reconsideration decision and appeal from the decision of Chalmers J. for the purpose of assessing the status of the stay issued by this court. [ 2 ] For the reasons that follow, the interim stay of the order of Chalmers J. ordered by this court is lifted, effective July 28, 2023, and the appeal to this court from the order of Chalmers J. is quashed, without prejudice to an appeal that may be brought from the decision of Chalmers J. to the Court of Appeal.

Reasons [ 3 ] The decision of Chalmers J. is a final order of a Superior Court Judge. Appeal from this order lies to the Ontario Court of Appeal: Courts of Justice Act , s. 6(1)(b). The Divisional Court has no jurisdiction over an appeal from Chalmers J., and no jurisdiction to grant a stay from the order of Chalmers J. pending appeal to the Court of Appeal. Mr Torok's only recourse is an appeal to the Court of Appeal, and a motion to the Court of Appeal for a stay of the order of Chalmers J. pending appeal.

In this regard, it is clear on the face of the decision of Chalmers J. that His Honour's order was made on the basis that Mr Torok is a trespasser, and not on the basis that Mr Torok is a residential tenant or a commercial tenant whose tenancy should be terminated. Chalmers J. did not terminate a tenancy, but rather His Honour found that a residential tenancy was terminated long ago by the LTB and that Mr Torok's subsequent reoccupation of the premises was unlawful. [ 4 ] The LTB granted an eviction order, and that eviction order was carried out. These events terminated Mr Torok's tenancy.

It appears that a request for reconsideration was made to the LTB by Mr Torok, but that no stay was granted by the LTB pending the reconsideration decision. The tenancy was terminated prior to the reconsideration decision and has never been reinstated. Thus, there is no subsisting tenancy, the termination of which may be stayed in this court. [ 5 ] A stay should not have been granted in this court from the order of Chalmers J. - although it is understandable why this was done on an interim basis to afford this court more time to look into this case.

Notwithstanding this, Mr Torok should have some opportunity to seek a stay from the Ontario Court of Appeal. I exercise my discretion to continue the interim stay ordered by this court until July 28, 2023, to provide Mr Torok an opportunity to seek a stay from the Ontario Court of Appeal. This is a longer period than I would ordinarily provide, in all the circumstances, and I do so in light of Mr Torok's status as a self-represented litigant with serious medical challenges.

On the other hand, based on the findings of Chalmers J., the landlord has been more than patient with Mr Torok and is entitled to timely recovery of its premises. Balancing the interests of the parties, an additional two weeks to seek a stay from the Court of Appeal is reasonable. [ 6 ] Mr Torok's appeal in 384/23 is quashed for lack of jurisdiction. The appeal from the LTB (359/23) may continue in this court, but that does not have the effect of staying the order of Chalmers J . Released by email: July 14, 2023 Formal Endorsement released: August 3, 2023