Hornstein v.

Royal Bank, 2007 CarswellOnt 2413

2007 CarswellOnt 2413

2007 CarswellOnt 2413

Ontario Superior Court of Justice (Divisional Court)

Hornstein v. Royal Bank

2007 CarswellOnt 2413

Jack Hornstein and All Occupants, Adriana Hornstein, Daniel Hornstein and Daphne
Hornstein, Tenants (Appellants) and Royal Bank of Canada, Landlord (Respondent)
Carnwath J.

Judgment: April 13, 2007

Docket: Toronto 88/07

Counsel: Ms Amanda Jackson, for Landlord/Respondent, Royal Bank of Canada

Mr. Strachin, for Tenant/Appellant

Subject: Property; Civil Practice and Procedure

Table of Authorities
Cases considered by Carnwath J.:
Fok v. Clarke (January 22, 2003), Blair J. (Ont. Div. Ct.) — referred to
Lesyork Holdings Ltd. v. Munden Acres Ltd. (1976), 13 O.R. (2d) 430, 1 C.P.C. 261, 1976 CarswellOnt 300 (Ont. C.A.)
— followed
Schmidt v. Toronto Dominion Bank (1995), 37 C.P.C. (3d) 383, 1995 CarswellOnt 154, 24 O.R. (3d) 1, 82 O.A.C. 233
(Ont. C.A.) — referred to
Statutes considered:
Tenant Protection Act, 1997, S.O. 1997, c. 24
s. 77 — referred to

s. 84(1) — referred to

Carnwath J.:

1 The motion is granted. The appeal is quashed. No order as to costs. Order to go as issued.

Carnwath J.:

Reasons

1. I am aware that a motion to quash an appeal should be granted only in the rarest of circumstances. See Schmidt v.
Toronto Dominion Bank (1995), 24 O.R. (3d) 1 (Ont. C.A.); Fok v. Clarke [(January 22, 2003), Blair J. (Ont. Div. Ct.)],
unreported, File 770/02.

2. Nevertheless, an appeal may be quashed where it is manifestly devoid of merit. This is such an appeal. See Lesyork
Holdings Ltd. v. Munden Acres Ltd. (1976), 13 O.R. (2d) 430 (Ont. C.A.).

3. I find no question of law involved in this appeal.

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Hornstein v. Royal Bank, 2007 CarswellOnt 2413
2007 CarswellOnt 2413

4. The Tribunal Member found the tenants denied access to the premises, thus breaching the prior s.77 Order. She accepted
the evidence of the real estate agent. Indeed, the tenants acknowledged they denied access. The Member rejected their
excuse for doing so.

5. I find the Tenants were not denied procedural fairness and natural justice by the Member's refusal to grant relief from
forfeiture. The Member referred to s. 84(1) and gave an explanation for her refusal. Her refusal was a conclusion which she
was entitled to find on the evidence before her. The Tenants chose not to order a transcript of the hearing. The Member's
conclusion on this point cannot be faulted.

6. The Tenants ask whether "in all the circumstances of the Appellants' tenancy at the subject rental premises, was
termination an appropriate and just disposition". My answer to this question is "yes". In any event, the question as phrased
does not raise a question of law, as the answer requires findings of fact based on the evidence before the Tribunal. I again
note the failure of the Tenants to order a transcript.

7. The Tenants ask "was there an evidentiary basis on which the the Member could properly conclude. ... the Tenants were
in breach of a prior order...". This does not raise a question of law. No transcript was ordered.

6. I find no question of law that could be raised before a panel of the Divisional Court. I find the appeal to be devoid of merit.

7. I find the appeal was launched to further delay the conclusion of this matter. I find the appeal to be frivolous, vexatious
and an abuse of process.

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