Polmat Group Inc. v. E Ring Corp. Investments LLC (In Trust) et al., 2015 ONSC 1233

• Judge: MacKenzie, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 10, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONSC 1233;(2015), 331 O.A.C. 235 (DC)

Polmat Group Inc. v. E Ring Corp. (2015), 331 O.A.C. 235 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.017

Polmat Group Inc. (plaintiff) v. E Ring Corp. Investments LLC (In Trust), Dave Benson aka David Benson, 2203746 Ontario Inc. and MacDonald Sager Manis LLP (defendants)

(DC-14-129001; 2015 ONSC 1233)

Indexed As: Polmat Group Inc. v. E Ring Corp. Investments LLC (In Trust) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

MacKenzie, J.

February 24, 2015.

Summary:

The defendants agreed to purchase the plaintiff's property. One of the defendants (Benson) agreed to lease the property for one year (agreement date to closing date). A dispute over the plaintiff taking a mortgage back led to the sale not closing. Benson stopped paying rent, but remained in possession. The plaintiff applied for an order for vacant possession. It obtained a court order (Mossip order) requiring Benson to pay the monthly rent. This was an unappealed consent order. Benson stopped paying rent after several months. The plaintiff obtained a court order (Snowie order) that Benson pay the rent arrears of $16,000 within five days or the defendants' pleadings in the action would be struck without further notice. Benson filed a Notice of Appeal from the Snowie order. A subsequent court order (Price order) ordered Benson to vacate the property and deliver vacant possession. The plaintiff was granted leave to obtain and enforce a writ of possession. The defendants served an Amended Notice of Appeal, which they argued stayed the Price order. The plaintiff moved to dismiss the defendants' appeals from the Snowie order and the Price order, to set aside the Certificate of Stay obtained by the defendants, and a direction that the sheriff enforce the writ of possession. At issue was whether the Snowie order was final or interlocutory and whether the amended Notice of Appeal stayed the Price order directing enforcement of the writ of possession.

The Ontario Divisional Court granted an order quashing the defendants' appeals from the Snowie order and Price order. The Certificate of Stay was set aside and the Sheriff was directed to enforce the writ of possession.

Landlord and Tenant - Topic 6607

Termination, forfeiture and reentry - Eviction - Writ or order for vacant possession - Stay of proceedings - [See Practice - Topic 8862 ].

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - Manifestly devoid of merit - The defendants agreed to purchase the plaintiff's property - One of the defendants (Benson) agreed to lease the property for one year (agreement date to closing date) - A dispute over the plaintiff taking a mortgage back led to the sale not closing - Benson stopped paying rent, but remained in possession - The plaintiff applied for an order for vacant possession - It obtained a court order (Mossip order) requiring Benson to pay the monthly rent - This consent order was not appealed - Benson again stopped paying rent - The plaintiff obtained a court order (Snowie order) that Benson pay the rent arrears of $16,000 within five days or the defendants' pleadings in the action would be struck without further notice - Benson filed a Notice of Appeal from the Snowie order - A subsequent court order (Price order) ordered Benson to vacate the property and deliver vacant possession - The plaintiff was granted leave to obtain and enforce a writ of possession - The defendants served an Amended Notice of Appeal, which they argued stayed the Price order - The plaintiff moved to dismiss the defendants' appeals from the Snowie order and the Price order, to set aside the Certificate of Stay obtained by the defendants, and a direction that the sheriff enforce the writ of possession - The Ontario Divisional Court granted an order quashing the defendants' appeals from the Snowie order and Price order - The Certificate of Stay was set aside and the Sheriff was directed to enforce the writ of possession - Rule 63.01(3)(a) (stay of order terminating tenancy or evicting a person), the rule under which the Certificate of Stay was obtained, did not apply - The stay issues arising from the amended Notice of Appeal were governed by rule 63.01(1) (no stay of writ of possession) - The defendants did not seek a stay under rule 63.02(1)(b) - The defendants' appeals were not perfected within the required 30 days - Further, the appeals could be quashed under ss. 21(3) and 134(3) of the Courts of Justice Act as they were devoid of merit.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Practice - Topic 8862 ].

Cases Noticed:

Toronto-Dominion Bank v. Charette, [2003] O.A.C. Uned. 215; 33 C.P.C.(5th) 21 (C.A.), refd to. [para. 18].

Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 13 O.R.(2d) 430 (C.A.), refd to. [para. 20].

Four Seasons Travel Ltd. v. Laker Airways Ltd. et al. (1975), 6 O.R.(2d) 453 (Div. Ct.), refd to. [para. 22].

Schmidt v. Toronto-Dominion Bank (1995), 82 O.A.C. 233 (C.A.), refd to. [para. 23].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 63.01(3)(a) [para. 28]; rule 63.01(5) [para. 29].

Counsel:

H.W. Reininger, for the plaintiff;

D. Rose, for the defendants, E Ring Corp. Investments LLC (In Trust), Dave Benson aka David Benson, and 2203746 Ontario Inc.;

No one appearing for the defendant, MacDonald Sager Manis LLP.

This matter was heard on February 10, 2015, before MacKenzie, J., of the Ontario Divisional Court, whose following endorsement on the record was released on February 24, 2015.