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RTA - Appeals - Interlocutory. Oz v. Shearer
In Oz v. Shearer (Div Court, 2023) the Divisional Court holds that an interlocutory LTB order may not be appealed without leave:[25] The Divisional Court has previously held that that the Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order of the LTB: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at paras. 9 and 12:The Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order…
It cannot be the legislature’s intention … to put tribunal proceedings on hold every time an interlocutory decision is made. Section 210 does not confer a right of appeal from an interlocutory order. [26] This decision was confirmed in Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, where the Divisional Court reaffirmed that legislation conferring a right to appeal a decision of an administrative tribunal confers a right to appeal only a final decision, absent clear language indicating that there is a right to appeal an interlocutory decision.
[27] In the absence of a right of appeal, the Tenant must seek leave to appeal the interlocutory decision of the LTB.
[28] Alternatively, he may bring an application for judicial review, but that will also be subject to the jurisprudential restraints relating to judicial review of interlocutory decisions. It is well-established that, in most cases, reviewing courts will decline to engage in a judicial review until the administrative proceeding has been completed. This principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 31-32, quoted with approval by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69:Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [29] See the summary of case law set out in National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al., 2023 ONSC 2989, at paras. 29 - 32.
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