



COURT OF APPEAL FOR ONTARIO

CITATION: Morguard Residential v. Mandel, 2017 ONCA 177

DATE: 20170301

DOCKET: M47528 (M47493)

Gillese J.A. (In Chambers)

BETWEEN

Morguard Residential

Responding Party

and

David Mandel, Bruce Anelevitz, Joan Darling and
    Francis McGeachy

Moving Parties

Allan Rouben and Allyson Fox, for the moving parties

Robert G. Doumani and Vedran Simkic, for the responding
    party

Heard: February 24, 2017

Motion for a stay of the Divisional Courts order, dated
    February 2, 2017, with reasons provided at 2017 ONSC 387, pending disposition
    of the Moving Parties application for leave to appeal from the Divisional
    Courts order, and, should leave be granted, pending disposition of the appeal.

Gillese
    J.A
.:

OVERVIEW

[1]

This is a motion by David Mandel, Bruce
    Anelevitz, Joan Darling and Francis McGeachy (the Moving Parties). Morguard
    Residential is the responding party (the Responding Party).

[2]

The Moving Parties have sought leave of this
    court to appeal an order of the Divisional Court, dated February 2, 2017 (the
    Divisional Court Order).  In the motion before the court today, the Moving
    Parties seek a stay of the Divisional Court Order, pending the disposition of
    their leave motion and, if leave is granted, pending the disposition of the
    appeal.  Without the stay, the Responding Party is entitled to enforce the eviction
    orders made by the Landlord and Tenant Board (the Board) in respect of the
    Moving Parties.

[3]

For the reasons that follow, the stay motion is
    dismissed.

A BRIEF HISTORY OF THE PROCEEDINGS LEADING TO
    THIS MOTION

[4]

The Responding Party issued eviction orders
    against the Moving Parties dated February 24, 2014.  In response, the Moving
    Parties sought relief against eviction from the Board.

[5]

By order dated February 13, 2015 (the Eviction
    Order), the Board terminated the tenancies of each of the Moving Parties.

[6]

The Moving Parties had the Eviction Order
    reviewed under s. 83 of the
Residential Tenancies
    Act, 2006
, S.O. 2006, c. 17.  Orders dated January
    4, 2016 (the s. 83 Orders) denied the Moving Parties relief from eviction.

[7]

The Moving Parties then had the Eviction Order
    and the s. 83 Orders reviewed.  Orders dated April 21, 2016 (the Review
    Orders) denied the review.

[8]

The Moving Parties next appealed to the
    Divisional Court, asking that court to set aside the various Board orders and
    dismiss the Responding Partys application to terminate their respective
    tenancies.  The Divisional Court Order dismissed the Moving Parties appeals.

[9]

The Moving Parties have brought a motion to this
    court in which they seek leave to appeal the Divisional Court Order.  That
    motion is pending.

[10]

In the motion now before the court, the Moving
    Parties seek a stay of the Divisional Court Order until their leave motion to
    this court is decided and, if leave is granted, until the appeal is decided. 
    The stay would have the effect of permitting them to remain in the apartments
    in which they currently reside.

BACKGROUND FACTS IN BRIEF

[11]

This matter arises from the demolition and
    redevelopment of a rental property in which the Moving Parties were tenants.

[12]

As a condition of being granted a building
    permit, the Responding Party entered into an agreement with the City of Toronto
    (the s. 37 Agreement) in which it agreed that once the redevelopment was
    completed, the Responding Party would provide the displaced tenants with
    replacement units in a newly constructed building at a specified rent and
    compensate them for moving costs.  The s. 37 Agreement stipulated that the
    Responding Party would serve on the tenants a Ready for Occupancy Notice (the
    Notice) before the replacement building was ready for occupancy.  The tenant
    was to then fill out the Notice so that the rest of the process of returning
    the tenant to the replacement building could proceed.

[13]

The Responding Party also voluntarily offered to
    make available to the tenants temporary relocation rental units, at a reduced
    rent, in other buildings that it owned.  The Moving Parties each took up this
    offer and were relocated to units in the Colonnade in Yorkville, Toronto.  They
    continue to occupy those units for rents below the fair market value.

[14]

Under the tenancy agreements for the temporary
    relocation units, the tenants were to vacate the temporary units once the
    redeveloped replacement building was ready for occupancy.

[15]

This dispute arose because the Moving Parties
    refused to engage in the process of vacating the temporary units and moving to
    the redeveloped property in accordance with the terms of the tenancy
    agreements.  The Moving Parties maintain that the temporary relocation units
    were not part of the requirements imposed by the City in the s. 37 Agreement
    and were not temporary.  They claim that the Responding Party provided them
    with the new units and is not entitled to terminate their tenancies or evict
    them.

[16]

As the brief procedural review above indicates,
    the Moving Parties claim has been rejected three times by the Board and once
    by the Divisional Court.

THE TEST FOR GRANTING A STAY

[17]

When deciding whether to grant a stay,
    generally, the courts are to apply the same three-stage test as they do when
    deciding whether to order an interlocutory injunction:
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334.  This test
    requires the court to:

1.

make a preliminary assessment of the merits of the case to ensure
    that there is a serious question to be tried;

2.

determine whether the moving party would suffer irreparable harm
    unless the stay were granted; and

3.

determine which of the parties would suffer greater harm from the
    granting or refusal of the stay.

[18]

Because a stay is a discretionary remedy, the
    court may also consider the clean hands doctrine when deciding whether to
    order the stay:
Authorson (Litigation Guardian of)
    v. Canada (Attorney General)
, 2006 CarswellOnt
    9418 (C.A.), at para. 9.

ANALYSIS

(1)

The Strength of the Putative Appeal

[19]

The Responding Party argues that the nub of
    the Moving Parties complaint is contained in paragraph (b) of the grounds
    section of their leave motion.  That paragraph reads as follows:

section 37(5) of the Act provides that an
    agreement to terminate a tenancy is void if it is entered into at the time of
    the tenancy agreement or as a condition of the tenancy agreement.

[20]

I accept that is the essence of what the Moving
    Parties will argue, should leave be granted.

[21]

With that in mind, my preliminary assessment of
    the merits of the putative appeal  which was informed by a careful review of
    the decisions below  is that it does not raise a serious question.  As the
    brief procedural history set out above demonstrates, this issue has been fully
    and exhaustively considered  and decisively rejected  by both the Board and
    the Divisional Court.  Their reasons are sound.  Furthermore, in light of the
    appropriate standard of review and given the factual component to the putative
    appeal, those decisions are owed significant deference.

(2)

No Irreparable Harm

[22]

The Moving Parties have filed no evidence on what
    harm or prejudice they might suffer if the stay is not ordered.  Counsel for
    the Moving Parties points to the fact that some of the Moving Parties are very elderly
    and, if the stay is not granted, that the Moving Parties will be forced to
    leave the apartments which have been their homes for nearly eight years.  In
    the circumstances, he says, the harm they will suffer is obvious.

[23]

There is nothing in the record to indicate
    whether the Moving Parties have attempted to obtain alternate housing or
    otherwise taken steps to minimize the risks or harm associated with moving from
    their current temporary homes.

[24]

The Moving Parties bear the burden on the stay
    motion.  In the absence of any evidence to support the claim of irreparable harm,
    I am not prepared to infer it.

[25]

Furthermore, and in any event, if harm is suffered,
    as the record shows no evidence that appropriate steps were taken to ameliorate
    it, such harm may fairly be characterized as self-induced.  In my view,
    self-induced harm (or the risk thereof) does not amount to irreparable harm.

(3)

Balance of Convenience

[26]

The Moving Parties have not demonstrated that
    they will suffer irreparable harm if the stay is not ordered.  Thus, the
    balance of convenience cannot be in their favour.

Application of the Clean
    Hands doctrine

[27]

The Board found that the Moving Parties had acted
    in bad faith when, by refusing to vacate their residences in the Colonnade,
    they disregarded their obligations under the relocation plan to which each of
    them had agreed with the Responding Party. The Responding Party had voluntarily
    provided the Moving Parties with those temporary residences at a discounted
    rent in exchange for the Moving Parties agreeing to vacate the residences once
    the Responding Partys redevelopment had finished. The Divisional Court did not
    disturb this finding.

[28]

As indicated above, because a stay is a
    discretionary remedy, the court may also consider the clean hands doctrine. 
    In my view, in the circumstances of this case, the Board finding of bad faith
    on the part of the Moving Parties should be considered pursuant to the clean
    hands doctrine.  This consideration also augurs against granting the stay.

CONCLUSION

[29]

The Moving Parties have not met their burden
    under the three-stage test.  Moreover, the Board finding of bad faith on the part
    of the Moving Parties militates against the exercise of the courts discretion
    to stay the Divisional Court Order.

DISPOSITION

[30]

For these reasons, the motion is dismissed with
    costs to the Respondent fixed at $4860, all inclusive.

Released: March 1, 2017 (E.E.G.)

E.E. Gillese J.A.


