An interesting recent decision from the Court of Appeal for Ontario where the court dismissed the tenant's motion to stay an order and refused to exercise its discretion to transfer the matter to the Divisional Court because of prejudice to the landlord.
Context: the landlord's previous real estate deal (which was the basis for the N12 eviction) fell through, and the landlord entered into a new agreement of purchase and sale.
The ruling provides a brief overview of case law on the test on a motion for a stay pending appeal or leave to appeal.
"... [7] On a motion brought by the landlord, a single judge of the Divisional Court quashed the tenants' appeal and ordered them to vacate by June 28, 2022, failing which the eviction could proceed. Evidence filed by the landlord immediately prior to the motion to quash (the “new evidence”) indicated the landlord's original sale had been terminated as of May 13, 2022 because the tenants had failed to vacate and the purchasers were unable to continue to wait for the premises. The new evidence also indicated the landlord had subsequently resold the property with a closing date of July 20, 2022 at a price $30,000 less than the original sale. The single judge concluded such evidence was irrelevant for the purposes of the motion to quash. In her view, the issues raised on the appeal were either not questions of law or lacking in merit. She also found the appeal was an abuse of process as it was a means of taking advantage of the automatic stay of the Board’s order upon filing a notice of appeal and of avoiding paying rent. Pursuant to the terms of the single judge’s order, the eviction is currently scheduled for July 6, 2022.
[8] The test on a motion for a stay pending appeal or leave to appeal is well‑established:
i. Is there a serious question to be determined on appeal;
ii. Will the moving party suffer irreparable harm if the stay is not granted; and
iii. Does the balance of convenience favour granting a stay?
The components of the test are not water-tight compartments, the strength of one component may compensate for weakness in another. The overarching consideration is whether a stay is in the interests of justice. See: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334; Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), at p. 677; BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 16.
[9] Although the serious issue to be determined component is a low threshold, I conclude it cannot be met in this case and that a stay should not be granted for that reason alone.
[10] Under s. 21(5) of the CJA, a panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion to that court.
[11] This court has consistently held that the proper procedure for setting aside or varying the decision of a single judge of the Divisional Court is by way of a motion to a panel of the Divisional Court under s. 21(5) of the CJA and that parties must proceed by that route before coming to the Court of Appeal: Bernard Property Maintenance, at para. 2; Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 O.R. (2d) 73 (C.A.), at p. 75. See also Coote v. Ontario (Human Rights Commission), 2010 ONCA 580, at para. 2; Alliance to Protect Prince Edward County v. wpd White Pines Inc., 2018 ONCA 576, at para. 13.
[12] In the absence of authority to the contrary, my view is that Ms. Rodger's appeal route is by way of review motion to a panel of the Divisional Court under s. 21(5) of the CJA.
[13] Although I cannot as a single judge finally determine whether this court has jurisdiction to entertain Ms. Rodger's leave motion, my view that the proper appeal route is by way of review motion to the Divisional Court militates against granting a stay. If this court has no jurisdiction to entertain the leave motion, the leave motion is without merit and it would be contrary to the interests of justice to grant a stay: see, for example, Fontaine v. Canada (Attorney General), 2018 ONCA 749, at para. 5.
[14] I recognize that in Bernard Property Maintenance, on consent of the parties and with the assent of the Chief Justice of the Superior Court of Justice, this court reconstituted itself as a panel of the Divisional Court to hear and determine an appeal that should have proceeded to the Divisional Court under s. 21(5) of the CJA. However, this court did so only because of the unusual circumstances that this court had granted leave to appeal, a stay of the order below, and an extension of time.
[15] Given that the jurisdictional issue has now been flagged, I see no prospect that leave to appeal would be granted in this case.
[16] Turning to Ms. Rodgers' request that I transfer these matters to the Divisional Court, s. 110 of the CJA provides me with discretion to transfer the proceedings rather than requiring Ms. Rodgers to recommence proceedings in the Divisional Court if so advised. Relevant considerations concerning the exercise of such discretion include:
· the merits of the proposed appeal or application; and
· whether the respondent will suffer undue prejudice as a result of further delay waiting for the matter to be heard: Bernard v. Fuhgeh, 2020 ONCA 529, at para. 15.
[17] The landlord opposes the transfer request contending that there is no merit in the proposed panel review and that he will suffer prejudice due to several factors, including the following:
· the tenants continuing failure to pay rent (the single judge determined rental arrears amounted to $9,200 as of June 16, 2022);
· the fact that his original real estate transaction was terminated because of the tenants' persistent refusal to vacate despite the eviction order; and
· further delay may jeopardize the new sale scheduled to close on July 20, 2022.
[18] While I agree that many of the issues Ms. Rodgers raises on her leave application have no merit, in my view, she has raised a question of law in her stay motion concerning the new evidence that has at least some arguable merit.
[19] In particular, Ms. Rodgers submits that because the landlord's original notice of termination under s. 49 of the RTA was given on behalf of the purchasers under the landlord's original agreement of purchase and sale that was subsequently terminated, the eviction order that was made in reliance on that notice of termination should be set aside or treated as having no force and effect. She submits that on a plain reading of s. 49, the notice of termination is given on behalf of the purchaser and cannot be used by the landlord to "bridge" to a new purchaser.
[20] Ms. Rodgers relies on Gill v. Laframboise, Board file CEL-00894-21, in support of her position. However, in that case, the landlord was applying for an eviction order based on a notice of termination served on behalf of a purchaser under an agreement of purchase and sale that had been terminated and had not served a termination notice on behalf of the purchaser under a new agreement for sale the landlord had made. The Board declined to make the eviction order sought based on the original notice of termination. In this case, the landlord obtained an eviction order but was unable to complete his original transaction because of the tenants' failure to vacate. The landlord argues that the RTA should not be interpreted in such a way as to allow tenants to frustrate landlords' ability to sell their property. The eviction order once obtained should not be set aside where the landlord was unable to complete a sale transaction due to the actions of the tenant.
[21] Counsel for the Landlord and Tenant Board who attended this proceeding was not aware of any other authority addressing the issue.
[22] Although I agree that the question of law Ms. Rodgers has raised has at least some arguable merit, I decline to exercise my discretion to transfer her motions.
[23] In my view, there is also merit in the landlord's argument. Moreover, the landlord has already suffered considerable prejudice through the actions of the tenants in that he lost the benefit of his original sale agreement through their failure to comply with the original eviction order and the tenants have continued to occupy the premises without paying rent. When asked, Ms. Rodgers did not offer any terms that would minimize the prejudice the landlord is continuing to suffer by her continued occupation of the premises. There is no evidence before me concerning whether the tenants have secured other premises. Taking account of all the circumstances, I conclude that it should be for Ms. Rodgers to take whatever steps she deems advisable to bring proceedings in the proper forum to either attempt to halt the eviction or pursue other remedies that she may have.
..."
More: Timing of Bad Faith / Is the good faith requirement limited only to the time when the N12 is given?
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