Sunrise North Senior Living Ltd. v. the Sheriff of the Regional Municipality of York & Rohan Salmon (Jan 23 2020)

  • May 05, 2020
  • Edgar-André Montigny, Montigny Law

The case is of interest because it is an example where the order in the nature of mandamus was issued. Requests for mandamus are not common and most are denied, often on the basis that the purported actor has no statutory duty to act. (see Bowman et al v. Her Majesty (2019 ONSC 1064) [1], Treuer v. ODSP (2019 ONSC 4653). [2]

Mr. Salmon, aged 50, is a person with severe physical disabilities. Mr. Salmon is capable. At the time of the hearing, he had lived at Sunrise for 15 years. He received extensive care from Sunrise.  He also had a long history of not paying all rent and fees. Finally, in July 2017, Sunrise went to the Landlord & Tenant Board in July 2017 to obtain an order of eviction against Mr. Salmon. At this point his unpaid arrears totalled about $18,000.

The Landlord and Tenant Board made an eviction order in November 2017. The order was to take effect May 31, 2018. Mr. Salmon was to pay all fees until he left. When he failed to pay all fees, a new order was issued in March 2018 allowing Sunrise to evict Mr. Salmon a month early (April 2018) if he did not pay his fees. Mr. Salmon did not pay his fees and despite the order, by May 2018, Mr. Salmon remained at Sunrise.         

Sunrise filed the eviction notice with Court Enforcement Office. The police refused to move Mr Salmon, claiming the move would put his health and safety at risk.

Court Enforcement asked Sunrise to seek directions from the Superior Court of Justice. In September 2018 Sunrise brought an application for directions. This resulted in an agreement between the parties outlining how Mr. Salmon would find new accommodations.

Mr. Salmon did not pursue other accommodations.

In January 2019 the court confirmed Sunrise was entitled to vacant possession. Again, the Sheriff refused to carry out the eviction order.

The application to enforce order had to go to Divisional Court. By April 2019, Sunrise made an urgent application for Judicial Review. Charney J. granted a one-year extension on the eviction. In July 2019 the Judicial Review was adjourned based upon an agreement that Mr. Salmon would use the time to locate a new place to live.

Mr. Salmon took no such action.  As of January 2020, Mr. Salmon was still at Sunrise. It is not clear whether any portion of his rent was being paid. The Judicial Review came before the Divisional Court. Mr. Salmon asked for another adjournment. His request was denied.

Sunrise sought an order of MANDAMUS. The court outlined the 8 part test to meet to obtain such an order. In most instances, it was clear that Sunrise had met the test.