[7] Ms. Weller was once married to Mr. Khalifa’s uncle, Dr. Abdul Momin Khalifa. Ms. Weller is also the sole owner of the apartment in issue, a residential condominium unit located in Richmond Hill.
[8] At some point in 2010, Ms. Weller decided to sell the apartment. It appears that either she and/or her ex-husband asked Mr. Khalifa to assist. At the time, Mr. Khalifa was a licensed real estate agent with many years of experience.
[9] It appears that Mr. Khalifa listed the apartment and received an offer to purchase from an interested purchaser. The offer was presented on November 28, 2010, and it appears that Ms. Weller changed her mind and decided not to sell. On November 29, 2010, she executed a document titled “Suspension of Listing Agreement”, which ended the process of selling the apartment.
[10] According to Ms. Weller, her ex-husband then requested that Mr. Khalifa be permitted to reside at the apartment as she was not using it at that time. As a favour to her ex-husband, Ms. Weller agreed to permit the defendant to reside at the apartment on the condition that he pay the condominium fees and upkeep and that he vacate the premise on request.
[11] The agreement was never reduced to writing. That said, on December 2, 2010, Ms. Weller did provide a written “Letter of Authorization” to Mr. Khalifa, ostensibly authorizing him to “look after the unit” and take “any action required.” This letter also notes that as of January 1, 2011, Dr. Abdul Momin Khalifa would be “taking over” the unit and that Mr. Khalifa would be “managing” it.
[12] According to Mr. Khalifa, he reached an agreement to reside in the apartment in perpetuity in exchange for a $400 contribution towards the condominium fees. It appears that he viewed this contribution as a “rent payment” entitling him to reside at the apartment as a tenant.
[13] On August 16, 2011, Mr. Khalifa sent an email to Ms. Weller memorializing some discussions he had with Dr. Khalifa. The gist of the email is that Mr. Khalifa wished to remain at the apartment and does not want anyone entering the apartment or dealing with his personal property. He explains, “You should be advised that there are strict laws in Ontario with respect to tenancy arrangements and that I am not in any kind of breach of these laws or our arrangement.” The email does not reference any agreement to pay $400 in rent or in lieu of rent.
[14] By 2018, Mr. Khalifa had been in the apartment for almost seven years without paying any rent, though he paid the monthly condominium fees, which were initially $800 per month and later increased to approximately $1,000 per month. According to Ms. Weller, this was in accordance with the agreement they had. Mr. Khalifa maintains, however, that as he had only agreed to pay $400 per month, the balance of the amounts he paid for condominium fees were actually owed back to him by both Ms. Weller and Dr. Khalifa. Based on his calculations, as of the end of August 2018, he was owed approximately $46,833.40 by the plaintiff and her ex-husband. This is the basis for his counterclaim.
[15] In August of 2018, Ms. Weller asked Mr. Khalifa to vacate the apartment as she had decided to sell it. He refused to vacate and stopped paying anything towards maintenance and upkeep. His final payment to the condominium corporation was for the August 2018 fees in the amount of $1,007.49. Mr. Khalifa also changed the locks on the apartment.
Related Legal Proceedings
[17] Once Mr. Khalifa refused to vacate the property, Ms. Weller retained a paralegal and commenced proceedings before the Landlord and Tenant Board seeking a determination of whether a landlord-tenant relationship existed between herself and Mr. Khalifa.
[18] On January 8, 2019, the Landlord and Tenant Board held that the Residential Tenancies Act did not apply as there existed no landlord-tenant relationship between the parties. Before the Board, Mr. Khalifa, who had legal representation, advanced the same claim as that advanced here, namely that he was essentially paying $400 per month in rent in the form of a contribution to the monthly maintenance fees. In its Reasons, the Board concluded as follows at para. 19:
The Tenant presented no evidence whatsoever to support his claim that he believed the rent to be $400 per month. He had no agreement about paying “rent” and he presented nothing to support his claim that he expected to be reimbursed by DK for the double “rent” payment he made every month for seven years.
[19] Mr. Khalifa sought a review of the initial determination by the Board and the review was conducted on March 13, 2019. On April 25, 2019, the Vice-Chair of the Landlord and Tenant Tribunal issued Reasons dismissing the review and upholding the Board’s initial findings.
[20] Mr. Khalifa then sought a judicial review before the Divisional Court, which I understand made an interim order that Mr. Khalifa pay rent in order to continue residing in the apartment. On August 26, 2020, the Divisional Court dismissed the application for judicial review finding no errors in law in the determinations made by the Board. The Divisional Court ordered Mr. Khalifa to pay costs of $2,500. The costs order has never been satisfied.
[21] On August 28, 2020, Ms. Weller delivered a “Notice” to Mr. Khalifa to vacate the premise and pay occupational rent and condominium fees. He did not respond to the Notice.
[22] On January 5, 2021, a “Final Notice” was sent to Mr. Khalifa indicating that if he refused to leave, an action would be commenced seeking his eviction and all monies outstanding and owing.
[23] On February 2, 2021, Mr. Khalifa emailed Ms. Weller’s counsel confirming receipt of the letters and advising that he was looking for a new place to live but had been hampered by the COVID pandemic. He also asked for clarification of the amounts claimed to be owed in view of the amounts he had paid towards condominium fees.
[24] The Statement of Claim was issued on February 19, 2021. On April 22, 2021, Mr. Khalifa delivered a Statement of Defence and Counterclaim.
Analysis
[25] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that a court shall grant summary judgment where there is no genuine issue requiring a trial. In Hryniak v. Mauldin, 2014 SCC 7 at para. 49, the Supreme Court of Canada discussed the scope of the summary judgment power in Rule 20.04(2)(a) of the Rules of Civil Procedure:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[26] The Court further directed judges considering summary judgment motions as follows at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[27] Summary judgment is only appropriate if, based on the evidence presented on the motion, the judge can confidently make the required factual findings and apply the relevant legal principles so as to fairly resolve the dispute. The modern approach to summary judgment motions requires that parties continue to put their “best foot forward”; see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753 (CanLII), at para. 9.
[28] The court can also assume that the party responding to a summary judgment motion will present the evidence it intends to rely on at trial in order to prove that its claim or defence has a chance of success. In the vernacular, the responding party must “lead trump or risk losing”, see: 1061590 Ontario Ltd. v. Ontario Jockey Club, (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.) at p. 557, Salisbury v. Kraft, 2017 ONSC 177 at para. 12, and Cvjetkovic v. Gupta, 2016 ONSC 2322 at paras. 43-45.
[29] I turn next to my analysis. As a starting point, I note that there is no basis for a finding that Ms. Weller and Mr. Khalifa have a landlord-tenant relationship. That issue has been conclusively determined in other legal proceedings and is not open to collateral attack in these proceedings.
[30] Even in the absence of issue estoppel and res judicata issues, I would have no hesitation determining the issue on the record before me without the requirement of a trial. Mr. Khalifa is not currently, nor has he ever been, a tenant in the legal sense while residing at Ms. Weller’s residence. He is essentially a guest invited to occupy the premise at the pleasure of Ms. Weller. More to the point, that pleasure has long since run out. He is now a trespasser. He must vacate the premise.
[31] In terms of damages, I am prepared to find that the verbal agreement was that Mr. Khalifa would pay the condominium fees in exchange for staying at the apartment. Again, a trial is not required to determine this issue. From 2011 until August 2018, Mr. Khalifa did, in fact, pay the condominium fees without issue. The obvious inference is that this was done in accordance with the verbal agreement he had with Ms. Weller and/or Dr. Khalifa.
[32] Mr. Khalifa breached that agreement in September 2018 when he stopped paying for the condominium fees and refused to move out. From September 1, 2018 until October 1, 2021, the condominium fees amount to $40,365. As I will explain later in these Reasons when dealing with the counterclaim, I am not prepared to find that there was an agreement that Ms. Weller and/or Dr. Khalifa would reimburse Mr. Khalifa for any portion of the condominium fees owing and as a result, I find that he owes the full amount paid for condominium fees between September 1, 2018 until October 1, 2021.
[33] That said, I am advised that in accordance with an Interim Order of the Divisional Court, Mr. Khalifa has paid $1,600 to Ms. Weller as a condition of staying the Order of the Landlord and Tenant Board. This amount should be set off against the condominium fees owing, leaving $38,765 owing.
[34] In terms of damages for loss of opportunity, I note that Ms. Weller seeks $1,500 per month as a rough figure representing the money she would have earned had the apartment been rented out at a conservatively estimated market value of $2,500 per month.
[35] I am not prepared to grant summary judgment on this aspect of the damages claim for two reasons. First, there is no suggestion in the materials that Ms. Weller planned on actually renting out the apartment. Her intention was to sell the apartment in August of 2018. Second, there is scant evidence in the record on the market value for rent in the neighbourhood where this apartment is located, nor is there any evidence that the apartment would been rented out in a timely fashion.
[36] I turn lastly to the counterclaim. On this issue, I note that the counterclaim is essentially correlative to the main claim. Mr. Khalifa argues that while he paid the full amount of the condominium fees for many years, the agreement was that he would be paid half of that amount back by Ms. Weller and/or Dr. Khalifa. This issue was placed before the Landlord and Tenant Board where Mr. Khalifa argued that his portion of the condominium fees – which equalled $400 – was a rent payment. This argument was rejected. Moreover, the Board also noted that Mr. Khalifa produced no evidence to support his argument that he was to be reimbursed any condominiums fees paid over and above the $400 per month he agreed to.
[37] In my view, a trial is not required to fairly determine the counterclaim. The issue has already been decided by the Landlord and Tenant Board. That said, even leaving aside res judicata and issue estoppel, the evidence before me readily supports the existence of an oral agreement whereby Mr. Khalifa was to pay the full amount of the condominium fees without any reimbursement in exchange for staying at the apartment. Indeed, this is exactly what he did for seven years. At no point during those years did he either request or receive reimbursement. It was only after he was asked to vacate the premise that he sent a letter seeking a portion of the monies he paid returned to him. In my view, it is most likely that his request for money arose as a result of the request to move out and not as a legitimate request for monies owing that had accrued, without issue, between 2011 and 2018.
[38] I note also that Mr. Khalifa’s material contains a copy of a cheque from Dr. Khalifa to him in the amount of $2,000, that cheque is dated December 20, 2010. This payment appears perhaps to be related to the aborted real estate transaction that occurred around this time. However, as it predates Mr. Khalifa’s occupation of the apartment, it is hard to see how it supports his position about the alleged agreement to reimburse part of the condominium fees.
[39] Ultimately, when I consider the evidence before me, I conclude that a trial is not required to determine the counterclaim. On the evidence before me, it has no merit.
Conclusion
[40] I am prepared to grant summary judgment as follows:
a. An Order evicting the defendant from the condominium unit known municipally as Unit 825 - 326 Major Mackenzie Drive East, Richmond Hill, ON L4C 2B7, legally described as: UNIT 25, LEVEL 8, YORK REGION CONDOMINIUM PLAN NO. 645; PT LT 46 CON 1 (FORMERLY TWP MARKHAM), PTS 1 TO 21 65R11865, MORE FULLY DESCRIBED IN SCHEDULE ‘A’ OF DECLARATION LT556392 AS AMENDED BY LT 558675; RICHMOND HILL (PIN 29178 – 0219 LT) and the parking space legally described as: UNIT 49, LEVEL A, YORK REGION CONDOMINIUM PLAN NO. 645; PT LT 45 CON 1 (FORMERLY TWP MARKHAM), PTS 1 TO 21 65R11865, MORE FULLY DESCRIBED IN SCHEDULE ‘A’ OF DECLARATION LT556392 AS AMENDED BY LT558675; RICHMOND HILL (PN 29178-0269) (collectively referred to hereafter as the “Unit”);
b. An Order that the defendant remove all personal property and leave all other property upon departing the Unit, which shall be left in a broom swept condition;
c. An Order requiring the defendant to return all keys to access the Unit and its associated amenities to the plaintiff; and,
d. An Order for damages in the amount of $38,765.
[41] I also dismiss the counterclaim.
[42] If the parties are unable to agree on costs, they can make written submissions no longer than three pages in length, excluding appropriate appendices and caselaw, if any. The plaintiff’s costs submissions will be served and filed no later than 14 days after the date of the release of this judgment. The defendant shall file his costs submissions no later than 21 days after the date of the release of this judgment. The submissions may be sent by email to my judicial assistant, Diane Massey, at diane.massey@ontario.ca.
Justice J. Di Luca
Released: October 21, 2021"
"SACHS J. (Orally)
[1] Our jurisdiction in this appeal is confined to questions of law. The appellant alleges that the Board made three major errors of law:
(1) It erred in law in its interpretation of the term “rent”.
(2) It failed to apply the right legal test for determining whether there was a tenancy agreement.
(3) It erred in law in finding that there was a forbearance agreement.
Interpretation of the word “Rent”
[2] We disagree with the appellant that the Board made a legal determination that consideration paid to a third party (in this case, condo fees paid directly to the condominium corporation) could not constitute rent. What the Board decided is that on the evidence before it in this case, the payment of condo fees did not constitute “rent” as defined by Section 2 of the Residential Tenancies Act, 2006. This is clear from paragraph 17 of the Board’s decision where the Board states:
On the evidence, the payment of condo fees does not constitute “rent” as defined by Section 2 of the Act (emphasis added)
[3] This was a finding of mixed fact and law and does not raise a question of law alone.
Tenancy Agreement
[4] The appellant alleges that the Board never turned its mind to the definition of a tenancy agreement set out in Section 2(1) of the Residential Tenancies Act, 2006. In Section 2(1), a tenancy agreement is defined as “a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a license to occupy the unit”.
[5] According to the appellant, the Board failed to consider whether there was an implied tenancy or a license to occupy the unit. We disagree. At paragraph 15 of the Board’s decision, it focused on the question of what the nature of the relationship between the appellant and the respondent was and found that on the facts of this case there was no basis for concluding that the relationship was one of landlord and tenant. In doing so, the Board referred specifically to the only piece of documentary evidence before it as to the nature of the relationship, which makes no reference to the appellant occupying the unit. It only states that the appellant would be managing the unit and that the respondent’s ex-husband “would be taking over” the unit. The Board’s conclusion on the issue of whether there was a tenancy agreement between the parties was a determination of mixed fact and law and raises no question of law alone.
The Forbearance Agreement
[6] There is no finding of a forbearance agreement in the Board’s Original Order. The only reference to such an agreement occurs in the Review Order. In this case, there was evidence that the respondent’s ex-husband asked her not to sell the unit and that she agreed not to do so as long as the condominium fees were paid. Thus, there was no error, let alone an error in law, in referring to a forbearance agreement.
Other Issues
[7] While not pursued in oral agreement, there were other issues the appellant raised in his factum that we will also address. They concerned the fact that the respondent did not appear at the hearing before the Board (she lives in Italy) and that her evidence was given by the paralegal who appeared on her behalf at the hearing. According to the appellant, this resulted in a denial of natural justice. It is clear that the Board has a very broad discretion as to the type of evidence it is permitted to admit and rely on. It is permitted to rely on the evidence of a party’s representative and to rely on hearsay evidence. In this case, there was no objection by the appellant at the hearing to the admission of the paralegal’s evidence and no request to cross-examine the respondent.
Conclusion
[8] For these reasons, we do not except that the appellant was denied procedural fairness. We also do not accept that the Board erred in law by ignoring key evidence or failing to appreciate relevant evidence. In our view, the Board considered all of the evidence before it and, based on that evidence, came to the conclusion it did that the Residential Tenancies Act, 2006 did not apply to the relationship between the appellant and the respondent. In doing so, it made no errors of law alone and committed no breach of the procedural fairness. Thus, the appeal must be dismissed.
[9] In view of the financial and medical circumstances of the appellant, and in view of the fact that the respondent’s counsel did not bring or file a costs outline, we are limiting the respondent’s costs to $2,500 all inclusive. The appellant is to pay the respondent costs fixed in the amount of $2,500.
_______________________________
Sachs J.
I agree _______________________________
Backhouse J.
I agree _______________________________
L.A. Pattillo J.
Date of Oral Reasons for Judgment: August 26, 2020
Date of Release: September 16, 2020"
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