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Appeal - Motions - General. Kaftroudi v. Ravadgar [leave to appeal of tribunal consent order]
In Kaftroudi v. Ravadgar (Ont Div Ct, 2025) the Ontario Divisional Court granted a CJA s.21(5) ['panel motion order set aside'] motion, here brought against a single-judge order where "the motion judge dismissed the Tenant’s motion (the “Leave Motion”) for leave to appeal the eviction order of the Landlord and Tenant Board" (it was a consent eviction order requiring leave to appeal under CJA 133a, which under RCP 62.02 requires a panel of judges):[4] The threshold to grant a motion under s. 21(5) of the CJA is high: see Bernard Property Maintenance v. Taylor, 2019 ONCA 830, 148 O.R. (3d) 494, at para. 26. As explained below, we conclude that there was an error that met that threshold in this case.
[5] Section 21(3) of the CJA provides that a Divisional Court motion “shall be heard and determined by one judge, unless otherwise provided by the rules of court.” Rule 62.02 of the Rules of Civil Procedure, R.R.0. 1990, Reg. 194 provides “otherwise”. Under r. 62.02, leave to appeal any order or decision set out in that rule must be obtained from a three-judge panel of the court. The decision of a single judge does not meet that requirement.
[6] Under r. 62.02(1)3, orders that are subject to r. 62.02 include any “order or decision of a tribunal under a statute that provides that the order or decision may be appealed to the Divisional Court with leave of that Court, unless the statute provides for another procedure.” Rule 62.02(1)3 came into effect in July 2024, aligning the procedure for leave motions relating to statutory tribunal orders with the procedure for leave motions relating to court orders. Prior to that time, a leave motion relating to a tribunal order was heard by a single judge under s. 21(3) of the CJA, while a leave motion relating to a court order was heard by a three-judge panel under r. 62.02.
[7] In the matter before us, the Board’s Orders are subject to appeal to the Divisional Court on a question of law: RTA, s. 210(1). Leave of the court is required to appeal an order made with the consent of the parties: CJA, s. 133(a).
[8] We conclude that the Eviction Order falls within the scope of r. 62.02(1)3, by the combined operation of s. 210(1) of the RTA and s. 133(a) of the CJA. Therefore, leave to appeal the Eviction Order must be obtained from a three-judge panel of the Divisional Court. The Decision, having been made by a single judge, does not meet that requirement.
[9] In reaching that conclusion, we considered and rejected the Tenant’s submission that r. 62.02(1)3 does not apply because the right of appeal and the requirement to seek leave do not both arise under the RTA. We do not agree that r. 62.02(1)3 should be construed so narrowly. In our view, the interpretation we are adopting gives effect to the provision’s text, context and purpose.
[10] We also conclude that r. 62.02(1)3 applies in this case from a timing perspective, even though the Tenant filed her motion for leave to appeal in October 2023, several months before r. 62.02(1)3 came into effect in July 2024. It is well established that “new procedural legislation designed to govern only the manner in which rights are asserted or enforced, which does not affect the substance of the rights, applies immediately to pending and future cases”: see R. v. Debassige, 2021 ONCA 484, at para. 49.
[11] Accordingly, we conclude that it was an error for the motion judge to hear and determine the Leave Motion. Rule 62.02(1)3 applies, requiring that the Leave Motion be heard and determined by a panel of the court, not a single judge. However, as Tenant’s counsel notes in their submissions, this panel is able to provide a provide a remedy in this case.
[12] We have heard full argument on the question of whether leave to appeal should be granted and are in the position to address the Leave Motion without further delay. We conclude that leave to appeal should be granted. We provide no reasons for doing so, in accordance with the practice of this court (and appellate courts generally) not to provide reasons for deciding whether to grant leave to appeal: see Westhaver Boutique Residences Inc. v. Toronto (City), 2020 ONSC 3949 (Div. Ct.), at paras. 2-4. Any other remedy that the Tenant is seeking is left to the panel hearing the appeal.
[13] The order of Charney J. dated September 28, 2023 (2023 ONSC 5471, at para. 27) to stay the Eviction Order is continued pending the court’s decision on appeal or other resolution. . Grillone (Re)
In Grillone (Re) (Ont CA, 2023) the Court of Appeal considered a respondent appeal motion to lift an automatic stay [under BIA s.195] and/or an order for security of costs for the appeal.
In this quote the court comments on the nature of an appeal, and the role of motions in appeals:[24] An appeal is a completely different litigation creature than a first instance adjudication on the merits. An appeal is not a process designed to create an evidentiary record, save in the small number of cases that involve fresh evidence that meets the stringent requirements of the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Instead, an appeal takes the record created below, subjects it to panel review in accordance with the applicable standards of review, and may result in appellate intervention where a reversible error is identified in the decision below.
[25] Since an appeal essentially involves taking the record created below and packaging it for appellate consideration in the form prescribed in considerable detail by the Rules and the practice directions of this court, resort to motions in most civil appeals is unnecessary and wasteful. Most civil appeals involve only a handful of issues, so disputes about timelines and “packaging” of the record can and should be worked out by the parties through a process of reasonable discussion. Indeed, the rise in civil pre-hearing motions in this court over the past decade has been a most unfortunate development; there is no need for resort to this court to resolve most pre-hearing disagreements. And while appeal management conferences can play a useful role in complex, multi-party appeals, this is not such an appeal.
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