'Unfair and punitive': Eviction hearing goes ahead despite Toronto tenant's hospitalization

John Finlay is shown in a hospital bed in this photo provided by his sister. (Photo submitted by Kathleen Finlay)

A Toronto senior says he missed a court date related to his impending eviction because he was recovering from a heart attack in hospital.

But the proceedings went ahead anyway with the Court of Appeal ultimately ruling in favour of the landlord and accusing the tenant and a sister that he shares the apartment with of knowing how to "game the system."

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Now, the pair are raising concerns about what they call an “unfair” decision as they face an eviction scheduled to be carried out today.

“I don’t understand how the courts can be so lacking in basic compassion,” Kathleen Finlay told CP24. “I mean, this seems like it was designed to be punitive.”

After moving into their downtown Toronto apartment amid the height of the COVID-19 pandemic, Kathleen Finlay and her brother, John, claim to have faced numerous problems with their tenancy. The unit was nothing like advertised, they say. There was no hot water, a ventilation issue stunk up their bedrooms, and an unfinished repair created a safety hazard, to name a few of the allegations in court documents filed by the tenants.

These issues seriously affected John, who is disabled and was diagnosed with heart disease earlier this year, his sister says.

Moreover, Kathleen says that they “caused him to have no quality of life.”

“The apartment is really difficult for him to get in and out of because there’s a series of just horrible ramp(s). He can only go through the basement, and he has to use the walker to get up and down and around the ramp,” Kathleen said in an interview with CP24.

While the apartment itself was never advertised as being walker or wheelchair friendly, the siblings were angered and annoyed by the other alleged issues.

Kathleen says that’s why they stopped paying rent two months after moving in – she believes that the unit was in violation of the Residential Tenancy’s Act, or RTA, as it did not align with how it was advertised online, and ultimately created challenging living conditions for her brother in particular.

The pair racked up over $150,000 in late rent payments. However, they argued that the living conditions caused them damages that exceed that amount.

Medical evidence not credible: judge

The siblings stopped paying rent in September 2021. Kathleen says that by November, the property management company began taking legal action against them.

Around the same time, Kathleen said that her brother started having medical issues. She said that by January 2024, he had been diagnosed with heart disease. As a result, the siblings requested to pause the proceedings, which was ultimately denied.

The court decision, which granted the landlord possession of the apartment, noted “[John’s medical condition] has been made repeatedly during the course of these proceedings, and despite the court noting at various points that the claim has never been accompanied by credible medical evidence, the claim is being advanced yet again without such supporting evidence.”

The tenants appealed that decision. On Friday, the pair was scheduled to appear in the Court of Appeal on a motion by the landlord for permission to proceed with enforcing the court order and obtain possession of the apartment, as of today.

However, Kathleen says that her brother had a heart attack that morning while in a hospital’s emergency room.

Kathleen provided CP24 with documentation she described as notes from health-care professionals outlining John’s condition. In a note on April 26, a doctor said that John’s ECG (electrocardiogram) and “trop” (troponin test) are both “indicative of an acute MI." The doctor added that John “most likely has unstable angina”.

“We will admit him to the ward for monitoring and arrange an expedited elective angiography,” they said.

A request by the Finlays to postpone the hearing on Friday was denied by the motions judge.

Tenants 'abusing the system': judge

According to the Court of Appeal decision, this is not the first time that the pair have evaded court proceedings on the matter. Instead, it says that this is the latest in a lengthy record of proceedings in which the Finlay’s blamed their failure to attend on a medical reason.

A medical note was sent to the judge in early April, to which the pair were given a brief extension of 10 days to move. They remained in the unit, to which judgement stated was an example of how the tenants appear to be ‘abusing the system.’

“After the Finlays stopped paying rent, the unfortunate ‘cat and mouse’ game so typical of bad faith tenants began. The Finlays are among the most accomplished of those who know how to ‘game the system,’” the decision reads. “…Indeed, the Finlays made one previous foray into this court in this litigation, and in the decision awarding the costs of an abandoned appeal, reported at 2024 ONCA 153, the court noted that ‘the tenants’ conduct appears to be abusive of the system… The frivolous, vexatious, and abusive nature of the Finlay’s strategy throughout, and of this appeal in particular, is evident not only in the endorsement of Black J. under appeal, and in the costs award made by this court, but also in the litany proceedings – 33 litigation events.”

The siblings did not have a lawyer at the time and were representing themselves.

“I was trying to fight the court battle, and my brother was fighting for his life, and they were able to use that opportunity to take advantage of us and just get something before a judge really fast and this is the result,” Kathleen said.

Since then, Kathleen says that her brother left the hospital in order to pack his things.

As of right now, Kathleen says that John does not have plans to return to the hospital. She said that he is considering medical assistance in dying as an option, to “die with dignity.”

“This is really so unfair and punitive, and I don’t know any other way to describe it.”

They have been ordered to pay the rent accrued to early March 2024, which is more than $150,000, in addition to the costs of previous motions and security for costs of their appeal. The total amounts total more than $250,000.

The property management company, Hannah Properties of One Clarendon Inc, forwarded a request for comment to its lawyer, Sanj Sood.

In response, he said, “The [Court of Appeal] decision speaks for itself.”