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Appeals - Quashing (2). Nieman v. 15272122 Canada Inc.
In Nieman v. 15272122 Canada Inc. (Ont Div Ct, 2026) the Ontario Divisional Court granted a landlord motion to lift an automatic Registrar's RTA stay [under R63.01(5)].
Here the court considers the law of quashing an appeal:[10] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 grants the court the discretion to quash an appeal that is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. In Schmidt, the Court of Appeal held that this power is to be exercised sparingly because it "is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal": Zhou v. Rama 2021 ONSC 4659at para. 17.
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[12] A landlord may bring a motion to quash because the appeal raises no question of law, and an appeal lies to the Divisional Court only on a question of law under s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Alternatively, the landlord may bring a motion to quash on the basis that the appeal is devoid of merit (see for example Shields v. Lancelotte, 2016 ONSC 4422 (Div. Ct.)). In either case, as consequence of granting such a motion to quash, the stay of proceedings is lifted to allow for the enforcement of the underlying decision of the LTB.
[13] An appeal may also be quashed where it constitutes an abuse of process. An abuse of process arises where a litigant commences an appeal from an order of the LTB solely to obtain the benefit of an automatic stay of an eviction order, thereby using the court process to delay enforcement and improperly avoid ongoing rental obligations: see Hasan v. Taylor, 2017 ONSC 102. . Nieman v. 15272122 Canada Inc.
In Nieman v. 15272122 Canada Inc. (Ont Div Ct, 2026) the Ontario Divisional Court granted a landlord motion to lift an automatic Registrar's RTA stay [under R63.01(5)].
The court discounts a Notice of Appeal in light of it's lack of particularity, using it to justify it's quashing:[5] The appellants filed a Notice of Appeal of the LTB’s decision and set out the following ground of appeal:The LTB misapplied the law on landlord’s entry, failed to consider relevant evidence, accepted unlawfully obtained evidence and denied procedural fairness. [6] Except for the vague reference to misapplying the law on landlord’s entry, which is void of any specifics as to how the LTB misapplied the law, the other grounds of appeal are effectively nonexistent. It is not a ground of appeal to say that a decision maker failed to consider relevant evidence without listing the relevant evidence that was not considered. It is not a ground of appeal to say that a decision maker accepted unlawfully obtained evidence without setting out what was the evidence in question that was obtained problematically. Finally, it is not a ground of appeal to claim a denial of procedural fairness without setting out any specific instances of a denial of procedural fairness.
[7] The Notice of Appeal is devoid of any specifics which would allow the opposing party to respond to it.
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[11] It is well established that a tenant has a right of appeal to the Divisional Court, but solely on a question of law. In this case, the Notice of Appeal is devoid of merit. There is no substance to the very general allegations made in the Notice of Appeal against the LTB decision. There is no suggestion that the Board did not apply the correct legal test except as a bald assertion.
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[14] In the present case there is no doubt that the appeal as set out in the Notice of Appeal has no merit. There are no substantive grounds for appeal and the Notice of Appeal as currently drafted cannot be responded to. It does not raise a valid question of law. . Ontario Inc. v. Jonny’s Antiques Ltd.
In Ontario Inc. v. Jonny’s Antiques Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed the appeal "and the motion to quash the appeal", here where the appeal was brought against the setting aside of "a certificate of pending litigation (“CPL”) [SS: which was obtained] on an ex parte basis, which was registered against the property", here in a mortgage repossession dispute.
The court considers the propriety of bringing a motion to quash an appeal, here coincident with the hearing of the merits of the appeal:Why we dismissed 264 Ontario’s motion to quash
[16] 264 Ontario brought a motion to quash the appeal on the basis that the appeal was clearly without merit and constituted an abuse of the legal process.[6] Its notice of motion was filed only after the appeal was perfected and both parties had filed factums. The motion hearing was set for the same date as the appeal hearing.
[17] We note that counsel who appeared for 264 Ontario at the appeal hearing was not counsel of record when the motion was filed.
[18] Although we dismissed the appeal, it was not manifestly devoid of any merit nor was it abusive. Jonny’s Antiques was entitled to seek this court’s review of the motion judge’s decision. Dismissing an appeal as completely devoid of merit is exceptional. As a rule, if a litigant has a right of appeal, and they comply with the procedural requirements to file and perfect it, they are entitled to argue the appeal, even if the grounds of appeal are weak or marginal.
[19] There was furthermore little or no value in arguing 264 Ontario’s motion to quash on the same day as the merits hearing. It is sometimes appropriate to file a motion to quash to be argued alongside an appeal. For example, if it appears that the court does not have jurisdiction to hear an appeal, a respondent’s motion to quash on this basis may be made returnable on the same day as the merits appeal. But a motion to quash based on an appeal’s putative lack of merit, filed after an appeal has been perfected, generally serves no purpose except to increase the costs of the proceeding for all parties. . Bourgoin v. Schneider
In Bourgoin v. Schneider (Ont Div Ct, 2025) the Ontario Divisional Court granted a landlord's motion to quash an RTA s.210 appeal:Legal Principles on a Motion to Quash an Appeal
[17] The court to which an appeal is brought may quash the appeal for being manifestly devoid of merit: ss. 134(4) of the Court of Justice Act; Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 OR (3d) 1 (CA) at para 6. The power to quash an appeal is exercised sparingly as it is very difficult, in most cases, to find that an appeal is devoid of merit without hearing the entire appeal: Schmidt at para 6; Zhou v. Rama, 2021 ONSC 4659 (Div Ct) at para 17; Renée v. 10887609 Canada Inc., 2024 ONSC 917 (Div Ct) at para 37.
[18] An appeal from an order of the LTB to the Divisional Court is available only on a question of law: ss. 210(1) of the Residential Tenancies Act, 2006, SO 2006, c 17 (“RTA”). Generally, the bar is high for quashing an appeal for being devoid of merit, but it is appropriate to quash an appeal from an LTB order if the appeal does not raise a question of law: Zhou at para 18, citing Solomon v. Levy, 2015 ONSC 2556 (Div Ct) at paras 33-34, and Mahdieh v. Chen, 2019 ONSC 4218 (Div Ct) at para 8; Maynard v. Kerr, 2022 ONSC 4259 at para 16. Questions of law ask what the correct legal test is: Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 SCR 748 at para 35; Zhou at para 19. . S.S. v. S.R.A.
In S.S. v. S.R.A. (Ont CA, 2025) the Ontario Court of Appeal granted the respondent's motion to quash a family law appeal, here where the appeal was brought against the trial judgment:[7] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits an appellate court to quash an appeal “in a proper case”. This discretionary power will only be exercised in the clearest of cases. Relevant to the circumstances of the present appeal, this court has quashed appeals where a party willfully fails to comply with court orders, such as support orders: see, for example: Abu-Saud v. Abu-Saud, 2020 ONCA 824, 48 R.F.L. (8th) 330, at para. 4; Consentino v. Consentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8; Lamothe v. Ellis, 2022 789, 79 R.F.L. (8th) 8, at para. 4.
[8] The present case is one of those clearest of cases justifying the quashing of an appeal. The appellant has deliberately and unwaveringly breached crystal-clear orders, which are not stayed by his appeal, requiring him to allow his former spouse parenting time and to pay spousal and child support. The appellant remains in substantial arrears of his support obligations and, further, has failed to satisfy costs orders that are not under appeal.
[9] It is beyond well-established that support and parenting orders are not stayed by an appeal and that all orders that are not stayed must be followed until they are set aside or amended. The appellant’s breaches not only detrimentally affect his former spouse and their child, who, he acknowledges, are financially dependent on him, but they bring the administration of justice into disrepute.
[10] This is an egregious case. As we have already summarized, the record establishes that before the Superior Court and this court, the appellant has engaged in vexatious and frivolous behaviour. He has refused to comply with court orders; pursued frivolous and unmeritorious steps in the proceedings, seeking to relitigate support and parenting issues; and filed compendious and misleading materials.
[11] Before the stay of his appeal, he failed to take the requisite steps to perfect his appeal. His appeal appears unmeritorious, as the grounds amount to no more than a thinly veiled attempt to have this court revisit the trial judge’s careful findings of fact and credibility, all of which were open to the trial judge to make.
[12] The appellant’s flagrant disregard of court orders and of his fundamental support and parenting obligations continues his entrenched pattern of misconduct designed to punish his former wife and alienate her from their child.
[13] The appellant’s misconduct bears all the distinct hallmarks of frivolous and vexatious litigation: Talwar v. Grand River Hospital, 2025 ONCA 35, at para. 3; J.J.W. v. K.F., 2024 ONCA 362, 1 R.F.L. (9th) 1, at paras. 19-22.
[14] The court cannot tolerate this kind of deliberate misbehaviour. . Kakoutis v. Bank of Nova Scotia
In Kakoutis v. Bank of Nova Scotia (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash an appeal "on the basis that this court does not have jurisdiction to hear the appeal":[3] Contrary to the appellants’ submissions, there is no prohibition on the respondent bringing this motion as a preliminary motion and it is properly before the court. Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, explicitly contemplates that the court has the power to quash an appeal on a motion. There is no requirement that a motion to quash be brought after the respondent has filed materials in response to the appeal. Such a requirement would unfairly increase the costs of litigation in circumstances where there is a valid basis for quashing an appeal. For the same reason, s. 7.2.5 of this court’s practice direction concerning civil appeals provides that a motion to quash will be heard “at an early date” if its basis is that the court lacks jurisdiction to hear the appeal.
[4] We agree with the respondent that this court does not have jurisdiction to hear an appeal from the Associate Judge’s order. An appeal from a final order of an associate judge is to be brought to the Divisional Court: Courts of Justice Act, s. 19(1)(c). An appeal from an interlocutory order of an associate judge is to be brought to a single judge of the Superior Court: Courts of Justice Act, s. 17(a). Accordingly, this court does not have jurisdiction over this appeal. . Add-Vance Service Centre Ltd. v. Triloq Corp. ['appeal' of default judgment is premature]
In Add-Vance Service Centre Ltd. v. Triloq Corp. (Ont CA, 2024) the Ontario Court of Appeal quashed an appeal, here of a default judgment on the prematurity grounds that it was not a final order - since a motion to set aside was available and more efficient:[1] This is a motion to quash the notice of appeal of Edgar Bray, which was initially served on the respondents/moving parties, Add-Vance Service Centre Ltd. (“Add-Vance”) and Abdalrahman Alhazmy, filed on June 6, 2024.
[2] The motion is unopposed. We granted the motion at the hearing for reasons to follow. These are our reasons.
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[4] The moving parties argue that no appeal lies to this court from a decision on default judgment because it is not a final order of a judge of the Superior Court of Justice under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] As this court has observed, default judgments are not uncommon and a motion to set aside a default judgment under r. 19.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides “an efficient and relatively inexpensive means by which a party can challenge a default judgment”: 10720143 Canada Corp. v. 2698874 Ontario Inc., 2023 ONCA 463, at para. 16. Such motions are often successful.
[6] The interlocutory nature of a default judgment has been confirmed by this court on many occasions: 10720143 Canada Corp v. 2698874 Ontario Inc., at paras. 16-18. See also, for example, National Bank of Canada v. Royal Bank of Canada (1999), 1999 CanLII 3733 (ON CA), 44 O.R. (3d) 533 (C.A.); Hans v. Mohammadi (2005), 2005 CanLII 21090 (ON CA), 198 O.A.C. 374 (Ont. C.A.), at para. 11; Siivonen v. Halow (2002), 2002 CanLII 41790 (ON CA), 59 O.R. (3d) 211 (Ont. C.A.), at paras. 6-7; Laurentian Bank of Canada v. Goldshmidt, 2013 ONCA 122, at para. 4; Pasquale Doldo (Canadian Construction and Trucking) v. 1497601 Ontario Limited (Weston Gate Gardens), 2014 ONCA 73, 42 C.L.R. (4th) 7, at para. 4.
[7] Therefore, the motion to quash must be granted. . Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure)
In Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure) (Div Court, 2024) a single judge of the Divisional Court considered a JR by a citizen's group of the province's "decision not to include the redevelopment of Ontario Place’s West Island in the Category C Public Work Class Environmental Assessment of the Ontario Place Redevelopment Project pursuant to the Environmental Assessment Act".
Here the court dismissed a motion to quash the JR:Test on a Motion to Quash
[20] The test on a motion to quash an application for judicial review is whether it is “plain and obvious” or “beyond doubt” that the application cannot succeed: Ye v. Toronto District School Board, 2023 ONSC 2918 at para.18.
[21] Alternatively, to the extent that there is no longer a tangible and concrete dispute between the parties, a single judge can quash an application on the basis of mootness.
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