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Civil Litigation Dicta - Consent Orders. Kaftroudi v Ravadgar et al [admin consent orders/test]
In Kaftroudi v Ravadgar et al (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a leave to appeal application, here brought against an LTB consent order [CJA s.133a].
Here the court considers a complex interaction of: leave to appeal of an LTB consent order, and how to non-payment of rent 'catch-up payment' could constitute an RTA s.194 consent order voiding a non-payment of rent eviction order:LEAVE TO APPEAL A DECISION OF THE REVIEW BOARD
[19] Section 133 of the Courts of Justice Act R.S.O. 1990, c. C.43, (CJA) stipulates that no appeal lies from a consent order without leave of the court. This clearly applies to consent orders from the Landlord Tenant Board.3
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ANALYSIS re LEAVE TO APPEAL
[22] Section 133(a) of the Courts of Justice Act does not specify grounds for granting leave to appeal a consent order, however, the case law demonstrates that courts are very reluctant to grant leave to appeal when the parties have consented to an order, meaning they have represented to a court or administrative body that a matter has been resolved.
[23] Before dealing with the question, it is necessary to consider whether the Order under appeal is in fact, a consent order. Ms. Kaftroudi urges this court to hold that it is not. She argues that she did not consent to leaving an imperative term out of the Order, however even if she had, LTB Orders must comply with the Act, even if granted on consent. Meaning, in short, she could not consent to the Order as reached.
3 Lou v. Abagi, 2018 ONSC 1587; Arnold v. Lulu Holdings Inc., 2021 ONSC 8125; Eldebron Holdings Limited v. Mason, 2016 ONSC 2544, Singh v. Mylvaganam, 2018 ONSC 5955
[24] The Ontario Court of Appeal in R. v. Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 provided a framework and test for the granting of leave from a ‘consent’ order, where the consent itself is challenged.
[25] The Court held that “where the issue relates to the validity of the consent, leave to appeal should not be granted unless the evidence before the court on the leave application demonstrates that there is an arguable case that at the time the agreement that formed the basis of the consent order was entered into, the moving party could not or did not consent.” At para 64 (per Epstein J.) - Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence. The threshold for obtaining leave is high.
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[28] Ms. Kaftroudi on this motion is not alleging fraud, duress, or undue influence, or any other type of evidence that would normally undermine the enforceability of a contract. Instead, it would seem she is arguing that the consent order is invalid because she could not consent to an order that is unlawful, meaning one that did not include the mandatory voiding clause.
[29] In essence, she argues that the effect of s. 74(3)(b) of the Act means that no consent order can be made without that very voiding clause being inserted.
[30] Mr. Ravadgar argues that it is clear that s. 194(2) of the Act provides that a settlement agreed to under that section may contain provisions that contravene any provision under the Act, with only one exception (rent increases per 194(3)) that does not apply here.
[31] Ms. Kaftroudi says that s. 194 does not apply because that section deals specifically with settlements, not orders.
[32] Section 194 must be interpreted in a manner that is consistent with other sections of the statute. To hold that an order could not incorporate terms that are arrived at in a settlement agreement would conflict with the intention of s. 194. The provision explicitly notes that parties to a settlement may reach an agreement in contravention of any other terms of the Act. By implication, when they do, it must be that those agreements can be incorporated into an order that also, may override the Act.
[33] I further rely on the fact that the section specifically restricts certain rent increases as a limit on matters that can be settled upon. This restriction clearly anticipates that certain settlements would be incorporated into orders of the Board, or there would be no need to flag the restriction.
[34] Lastly, one can look to 194(4) which notes.(4) If some or all of the issues with respect to an application are settled under this section, the Board shall dispose of the application in accordance with the Rules. [35] Section 14.1 of the LTB Rules of Procedure provide that the LTB may issue an order with the consent of the parties, where the terms agreed to are consistent with the Act.4 The Act as a whole obviously includes section 194.
[36] For all of these reasons, in my view, the Order that was arrived at was a lawful one that the Applicant could, and did consent to. She has not shown evidence of fraud, duress, or undue influence. She has therefore not met the very high bar for granting leave to appeal a consent order. . Martin v. 11037315 Canada Inc. [set aside on consent]
In Martin v. 11037315 Canada Inc. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appellate motion on consent to "“set aside” a judgment declaring that it [SS: the individual moving party] was not a bona fide purchaser without notice":[2] We are not satisfied that granting the requested relief would be appropriate or in the interests of justice. The motion is therefore dismissed. What follows is our explanation for reaching this conclusion and a direction for next steps in this matter.
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[15] This court cannot allow an appeal or set aside a judgment or order made below based on the parties’ consent alone. To ensure its powers do not serve an improper purpose, this court must consider, in every case, whether the relief requested is appropriate in light of the law and the facts of the case.
[16] Similarly, courts of appeal from other Canadian jurisdictions have concluded that they could not allow an appeal merely because of an agreement between the parties: Uhrik v. Terrigno, 2024 ABCA 383, at para. 13; C.S. v. D.S., 2022 NBCA 51, at para. 24; and Garshowitz v. Canada (Attorney General), 2017 FCA 251, at paras. 17-19.
[17] As for the decisions from the Court of Appeal for British Columbia, they do not assist the parties. While we have doubts that this court should adopt the process followed in those cases, we need not decide that question. Indeed, as the parties concede in their submissions, the decisions they rely on make clear that an appeal will not be allowed on consent if doing so would bring the administration of justice into disrepute: Kubota v. Kubota, 2022 BCCA 41, at para. 5; Malick v. McCullough, 2023 BCCA 190, 39 B.L.R. (6th) 268, at para. 3.
[18] This case highlights the mischief that can occur if this court were simply to rubber stamp an agreement between parties to allow an appeal on consent.
[19] This court had previously directed the trial of an issue. Chozik J.’s judgment includes a declaration that is responsive to that direction. Her decision was based on an assessment of the evidence, including findings of fact and credibility. Her ultimate judgment incorporates her findings of fact and law in the form of a declaration that 267 “is not a bona fide purchaser without actual notice”. The parties are asking the court to whitewash this finding of misconduct without any basis for doing so. In the absence of any legal or evidentiary error, there is no authority for this court to set aside her judgment, even on consent. Given the circumstances of this case, we are satisfied that setting aside the judgment below based on the consent of the parties alone, given the declaratory judgment and the underlying findings of misconduct, would bring the administration of justice into disrepute.
[20] It is evident that Ms. Martin is being put in an unfair position. She was successful on the trial below. The moving parties are prepared to settle the appeal on the basis that she will receive a substantial amount of money. However, the settlement includes a term over which she has no control, which is that the judgment below be vacated or set aside. If there are valid grounds of appeal, the moving party should proceed with its appeal on the merits. If the moving party wishes to abandon the appeal, that can be done and the monetary aspect of this matter can be resolved by the parties as they see fit.
[21] Unfortunately, the dismissal of the motion is obviously unsatisfactory for Ms. Martin. We order that, if the moving party wishes to pursue the appeal, the appeal is to be expedited. . Smith v. Fire Team K-9’s Inc
In Smith v. Fire Team K-9’s Inc (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from a motion judge's order that a settlement regarding ownership of a dog should be enforced.
Here the court considers the contractual nature of consent orders and endorsements:[15] Consent orders and endorsements are a species of contract, and the analytical approach to their interpretation does not differ from the ordinary principles of contract interpretation: Johnston v. McLean, 2024 ONCA 791 at paras. 14-15. Contract interpretation is generally an issue of mixed fact and law subject to a deferential standard of review unless there is an extricable error of law: Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642 at para. 53. . Johnston v. McLean
In Johnston v. McLean (Ont CA, 2024) the Ontario Court of Appeal dismisses an appeal, here involving "the correct analytical approach to the interpretation of a consent judgment" (which it establishes was contract interpretation):[14] In my view, consent judgments should be interpreted according to the principles of contractual interpretation because they are a species of contract. It must be borne in mind that, “a consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances”: James G. McLeod in his annotation in the Reports of Family Law to Thomsett v. Thomsett, 2001 BCSC 546, 16 R.F.L. (5th) 427 at pp. 428-29.
[15] Thus, it is the contractual nature of consent judgments that distinguishes them from regular judgments and drives the requirement to determine the intention of the parties. Therefore, there is no principled reason why the analytical approach to them should differ from other contracts. This approach has been adopted by the British Columbia Court of Appeal: see Shih v. Shih, 2017 BCCA 37, at para. 34.
[16] The approach has also been adopted by the Ontario Superior Court of Justice where the surrounding circumstances and intention of the parties have been considered in interpreting consent orders: see for example NHDG (Green Mountain) Inc. v. The Hamilton Teleport Ltd., 2021 ONSC 362, at paras. 27-34; Cetin v. Percival et al., 2022 ONSC 2057, at para. 12; and S.C.H. v. S.R., 2023 ONSC 1549, at paras. 49-55.
[17] Based on the principles of contractual interpretation, the court should read consent orders as a “whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”: Sattva, at para. 47. . Nugent v. Dimakas
In Nugent v. Dimakas (Div Court, 2024) the Divisional Court granted a motion to quash a Small Claims Court interlocutory appeal for delay.
Here the court notes that appeals on consent orders require leave [CJA 133(a)]:[26] The first rule, already referenced, applies to all appeals: a party cannot appeal from a consent order “without leave of the court to which the appeal is to be taken”: s. 133(a) of the Courts of Justice Act.
[27] Leave to appeal a consent order is required even if the consent itself is challenged or disputed: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34 – 37.
[28] The law requires leave to appeal a consent order based on the principle that a consent judgment is binding and final, and that finality is important in litigation because the parties reached their bargain on the premise of an allocation of risk and the implicit understanding that they would accept the consequences of the settlement: Mohammed v. York Fire and Casualty Insurance Co., 2006 CanLII 3954 (ON CA), 79 O.R. (3d) 354, at paras. 34-35; Mendes. v. Mendes, 2019 ONSC 6036, at para. 44. Parties cannot appeal a consent order simply because they later regret the agreement they reached.
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