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Note: Since this chapter was last updated on 01 September 2020, the LTB Specific Rules were revised on 01 December 2020.

3. Court Appeals

Notice to Profession for Appeals from the Landlord and Tenant Board in the Divisional Court (August 24, 2020)
This is a Divisional Court practice direction applicable to Divisional Court appeals under RTA s.210. It deals with such things as delivery of the Notice of Appeal, required information on a Notice of Appeal, and stays of the LTB orders below.

(a) Overview

Court appeals under the RTA are available to the Divisional Court, which is a branch of the Ontario Superior Court of Justice - and then further (with leave) to the Ontario Court of Appeal. In very rare cases additional appeal is available (with leave) to the Supreme Court of Canada.

At the higher appeal court levels the courts openly weigh the broad legal significance of the case in making their determination as to whether to grant "leave" (permission) to hear cases.

Also of concern in any situation where a court appeal is being contemplated is the issue of "staying" (suspending) the original Order while the appeal is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"].

A brief discussion of the general law relating to appeals of SPPA-governed tribunals (such as the Board) is located at this Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide:

Ch.9: Appeals and Judicial Reviews

Case Note: Sterling v. Guillame
In Sterling v. Guillame (Div Ct, 2021) the Divisional Court considered the effect of non-payment of rent during the currency of a s.210 RTA appeal:

[23] A tenant is not entitled to live rent free pending an appeal: Sivakova v. Timbercreek Asset Management, 2016 ONSC 281 at para. 4. It is well established that persistent and ongoing failure to pay rent will ground the conclusion that an appeal (and the associated automatic stay of enforcement) is being used as a means of enabling the tenant to continue to live rent free and, therefore, constitutes an abuse of process: Florsham v. Mason, 2015 ONSC 3147 (Div. Ct.) at para. 4; Solomon v Levy, 2015 ONSC 2556 (CanLII).

Case Note: Schwartz v. Fuss
In Schwartz v. Fuss (Div Ct, 2021) the Divisional Court addresses the duty to pay rent during an appeal:

[14] It is well settled that unjustified non-payment of rent while under the purported protection of the statutory stay of enforcement of LTB orders pending appeal, can be regarded as an abuse of process and is otherwise sufficient grounds to warrant the lifting of the stay. There is no authority, statute or regulation that permits a residential tenant to withhold ongoing rent pending an appeal. As the Divisional Court stated in Sivakova v. Timbercreek Asset Management, 2016 ONSC 281 at para. 4, “[a] tenant is not entitled to live in a rental unit free pending an appeal”.

[15] The Divisional Court may quash an appeal in circumstances where the appeal is manifestly devoid of merit or if it is an abuse of process, Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.).

(b) WHAT can be Appealed?

The RTA provides that "(a)ny person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order" [Act s.210(1)]. It can be assumed that "orders" includes dismissals.

Case Note: Wynstar Commercial Properties Inc. v. Saintyl
In Wynstar Commercial Properties Inc. v. Saintyl (Div Ct, 2021) the Divisional Court considered an appellate motion to reinstate a residential tenant in possession of an apartment pending the appeal:

[21] The Court’s power to reinstate a tenancy pending an appeal derives from section 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43: Young v. CRC Self-Help, 2020 ONSC 1874 (Div. Ct.), at paras. 34-43, and Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 (Div. Ct.), at paras. 21-26.

[22] The test to determine whether a stay should be granted is the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 31, namely:

a. Is there a serious issue to be tried?[1]

b. Will Mr. Saintyl suffer irreparable harm if the motion is refused?

c. Does the balance of convenience favour granting the motion?

Serious issue to be tried

[23] The threshold for a serious issue to be tried is low. The moving party is only required to demonstrate that the matter is not frivolous or vexatious: 2169205 Ontario Inc. v. LCBO, 2010 ONSC 5382, at para. 12. In the context of an appeal from a decision of the Board under section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, a proposed appeal does not raise a serious issue if the appeal is not on a question of law.

(c) WHEN: Limitations

The appeal timeline is "within 30 days after being given the order" [Act s.210(1)].

This starting date will be when service of the "Notice of Decision" is made [see Ch.13, s.8: "General Board Procedure: Service and Filing of Documents", and Ch.14, s.6(e): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Service of Notice of Decision"]. Typically this will be "deemed" to be the fifth day after it is mailed by the Board, or the date that it is received by the party - whichever is first [RTA 191(3)].

Note that appeal deadline 'counting' is different from the review deadline. The review deadline starts to count from when the ruling is "issued" [s.2(d) above].

While there is no express provision for the court to extend the time for commencing a court appeal, the court in Fernando v Medallion Corporation (Div Ct, 2010) did so, apparently relying it's general authority under RTA s.210(5) to "make any other order in relation to the matter that it considers proper". In that case, despite the fact that the tenant had already been evicted, the court extended the time for filing a late Notice of Appeal and ordered the tenant back in possession of the premises under strict terms re maintaining current rent, paying arrears and prompt perfection of the appeal and scheduling of the appeal hearing.

(d) WHY: Grounds of Appeal

RTA 210(1)
Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

An appeal to a court is not a chance to argue your case all over again from scratch, and the issue of how much 'deference' appeal courts should allow the tribunal below has much-exercised the Canadian legal system.

With the case of Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019) the Supreme Court of Canada set out new 'standards of review' [superceding the previous leading case of Dunsmuir v New Brunswick (SCC, 2008)]. Most of the pre-Vavilov case law on standard of review is obsolete.

Now, with Vavilov, for a statutory appeal such as this [under RTA s.210], where the grounds are limited to "questions of law", the standard of review is 'correctness'. To advance other grounds, such as errors of fact-finding or mixed issues of fact and law (which is whether a particular legal test is satisfied by the found facts) the standard would be 'palpable and overriding error' - but the procedure would have to be one of judicial review, not appeal: Martinyiuk v Otavnik (Div Ct, 2010) [below].

Another important aspect of the Vavilov case is that the specialized nature of the LTB (ie. it's expertise), which was previously a factor weighing towards increased deference, has been abolished as such.

Case Note: Martinyiuk v Otavnik (Div Ct, 2010)
A landlord appeal regarding deemed assignment was dismissed where the presence of an unauthorized new occupant was unchallenged by the landlord for 60 days. None of issues raised by the landlord were questions of law, but rather of unappealable findings of fact or mixed fact and law. 'Mixed fact and law' generally refers to the locating of found facts into known legal tests to reach a legal conclusion.

Before being launched, such appeals to the Divisional Court call for critical review of an experienced lawyer who can plainly and objectively parse out the issues involved in a case. In all such situations however be aware of the short appeal timelines that may apply to your situation, and the degree of perfection required when preparing appeal documentation - another reason to consult a lawyer right away.

In my experience it is common for laypersons to have a high opinion of their chances on a court appeal, due either to a lack of comprehension of the law, being too close to the facts - or plain wishful thinking. Much time, money and effort (better spent on finding a new place to stay) can be wasted by parties pursuing these illusions.

Case Note: Seibert v. Juhasz (Div Ct, 2012)
In this case the Divisional Court stated that it's function on an RTA statutory appeal (which is on "questions of law" alone) does not entitle it to consider fresh evidence on appeal, since it's function is limited to assessing the correctness of the Board's decisions below:

[3] The appellant has brought a motion for fresh evidence. The evidence regarding the number of units in the building would not likely have affected the outcome of the hearing, as that evidence was already before the Board. The evidence of conduct after the hearing going to the landlord’s motivation is not admissible, as this Court is only empowered to determine if the Board made an error of law. It is not our function to make findings of fact based on new evidence (see Township of Scugog v. Fletcher (1993), 1993 CanLII 8570 (ON CA), 13 O.R. (3d) 387 (C.A.) at p. 2 of the QuickLaw version). Therefore, the motion to admit fresh evidence is dismissed.

Case Note: Avcan Management Inc. v. David O’Laughlin (Div Ct, 2012)
In this case the court reversed a non-repair and 'substantial interference with reasonable enjoyment' abatement of rent order issued with respect to multiple tenants where:

• the Board's reasons lacked adequate detail for appellate review,
  
  
• the only evidence of non-repair were deficiencies noted in a city work order [SS: seems fine to me]
  
  
• there was no analysis of how the non-repair substantially interfered with the tenant's ability to occupy the unit

. This is primarily a successful 'inadequate reasons' appeal.

(e) WHO: Standing

It is worth noting that the right to file an appeal extends beyond "parties" alone ["any person affected by an order: s.210(1)], though these circumstances would be rare - perhaps if a co-habitant occupant of the unit appealed where the tenant became incapacitated.

The Board has the right to make legal submissions on the appeal [Act s.210(3)]. Any documents filed with the Court on the appeal must also be copied to the Board [Act s.210(2)].

(f) HOW: Appeal Procedures

Procedures for an appeal to the Divisional Court are complex and beyond the scope of this program. Parties may wish to have regard to the Rules of Civil Procedure [R61-63]. As well, the Divisional Court has posted a useful Appeal Information Package on its website, explaining some of its procedures to the public.

That said, in resolving an appeal the Court may, with respect to the Board Order [Act s.210(4)(5)]:

• affirm,
  
  
• rescind,
  
  
• amend,
  
  
• replace the decision or order;
  
  
• remit the matter to the Board with the opinion of the Divisional Court;
  
  
• "may make any order with respect to costs that it considers proper"; and
  
  
• "make any other order in relation to the matter that it considers proper".

This broad remedial authority (esp. to "replace the decision or order") should be enough to allow a just decision and remedy in any given case.

Any court legal "costs" will be assessed under the court's Rules of Civil Procedure, not under Board Rules.

Case Note: Bon v. Hutchens
In Bon v. Hutchens (Div Ct, 2021) the Divisional Court held that an RTA appeal should be dismissed as an abuse of process when it is primarily filed for the purpose of getting the automatic stay:

[18] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.

[19] This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a Tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye, at para. 27.

....

[22] Whether an appeal has merit appears not to be relevant to the issue of whether the appeal is an abuse of process: Jayaraj v. Metcap Living Management Inc., 2021 ONSC 503 (Div. Ct.), at para. 25. ...

Case Note: . Oladunjoye v. Jonker
In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that commencing a s.210 RTA appeal while an LTB review application was outstanding was premature. I have a problem with this case, because - unlike the situation with social assistance appeals [eg. ODSPA General Reg s.70] - the RTA has no appeal time-extending provision for when a review (reconsideration) is filed. I have already written on the prudence of filing both appeals and reviews to fully protect a party's rights, a situation which I lament but see no safe solution for. This case had the potential to resolve this problem with a clear statement of principle, but rather it was applied to hurt the tenant's case when they seem - in my mind - to be acting sensibly:

Prematurity – LTB Review is Proceeding

[18] The tenants commenced a review before the LTB. The LTB issued an interim order on the review, but the review is not complete. The tenants are proceeding concurrently with this statutory appeal even though they have not exhausted their internal remedies at the LTB.

[19] Generally, the doctrine of exhaustion of remedies means that absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted: Canada Border Services Agency v. C.B. Powell Ltd., 2010 FCA 61 at para. 31. The reasons for judicial non-interference with ongoing administrative proceedings were set out by Stratas J.A. in C.B. Powell at para. 32, speaking of judicial review applications, but equally applicable to statutory appeals from administrative tribunals:

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…[internal citations omitted].

[20] Here, the tenants are pursuing the remedy of a review before the LTB. There are no exceptional circumstances that would lead this court to hear the statutory appeal before the review is complete. Waiting until alternative remedies are exhausted ensures that the court respects the administrative decision-making structure adopted by the legislature. As well, there may be no need for judicial intervention if the LTB review results in a change of the decision. As a result, the appeal is quashed on the grounds of prematurity.

Case Note: Oladunjoye v. Jonker

In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court held that filing an RTA s.210 appeal for the purpose of obtaining an automatic stay of eviction is an abuse of process:

Abuse of Process

[26] I also quash the appeal as an abuse of process. The Jonkers are gaming the system; the purpose of the appeal is to stay the eviction and extend their rent-free existence, which is an abuse of process: Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.) at para. 25 per Patillo, J.

[27] As held by Favreau, J. in Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34, “one of the key indicia that a party is trying to ‘game the system’ is a circumstance where the Tenant persistently fails to pay rent prior to and through the appeal period without any explanation for the failure to pay rent or any evidence of an intention to remedy the situation.” That is what we have here.

[28] The Jonkers have failed to pay any rent from the outset of the tenancy except for one of the past 14 months; they have not brought any evidence before this court to explain how they will pay the rent they owe; the LTB found that Mr. Jonker received CERB but failed to pay any of that money toward rent. Their rent-free existence has come at a high price for Mr. Oladunjoye who is unable to pay the mortgage and must sell the house as a result.

Case Note: Oladunjoye v. Jonker

In Oladunjoye v. Jonker (Div Ct, 2021) the Divisional Court set out the most common grounds of quashing an RTA appeal:

[17] Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that: “On motion, a court to which an appeal is taken may, in a proper case, quash the appeal.” There are three main grounds on which the court may quash an appeal under the Residential Tenancies Act: (1) where the appeal does not raise a question of law; (2) where the appeal is manifestly devoid of merit, and (3) where the appeal is an abuse of the court’s process, including an appeal launched for the sole purpose of obtaining a stay of eviction: Meglis v. Lackan, 2020 ONSC 5049 (Div. Ct.) at para. 23. To this I would add a fourth ground: where the appeal is premature.

Case Note: Goble v Vranjes (Div Ct, 2010)
Despite quashing a tenant's appeal for being frivolous and vexatious, the court held that it had no jurisdiction to order eviction of the tenants and/or to assess the final rent arrears:

[24] I do not possess the jurisdiction to order the appellants to vacate the premises as requested nor do I have the jurisdiction to order them to forthwith pay any arrears of rent. Those are matters that will have to be dealt with by the Landlord and Tenant Board.

In so doing the court apparently failed to consider it's RTA s.210(4) and (5) appeal jurisdiction to do just those things.

Case Note: Falconer v. Manufacturers Life Insurance Company (Div Ct, 2008)
The decision in Goble v Vranjes (Div Ct, 2010) (above) can be contrasted with that in Falconer v Manufacturer's Life Insurance Company (Div Ct, 2008) on a similar landlord motion and with similar facts (ie. extensive adjournment requests, large arrears and avoidance of service). On a finding that the tenant's behaviour was frivolous and an abuse of process, the court in Falconer quashed the tenant's appeal to the Divisional Court. In quashing the appeal and vacating the stay the court also ordered the sheriff to evict the tenant in accordance with the Board's earlier order, expressly relying on its RTA s.210(5) jurisdiction to do so.

Case Note: Levine v Jack Aaron and Company (Div Ct, 2003)
In the case of Levine v Jack Aaron and Company (Div Ct, 2003) the court was faced with a tenant's appeal of a Board consent order for termination and eviction, which the court dismissed as lacking merit, then re-ordering termination and eviction. However the consent order contained catch-up payment provisions, one of which the tenant purported to have satisfied, thus putting the original Board order terms at odds with the court's order in the appeal dismissal. When the tenant did not move in compliance with the court order the landlord sought a contempt order, which the tenant countered with the argument that jurisdiction to order termination and eviction was solely the prerogative of the RTA statutory scheme [citing Fraser v Beach (Ont CA, 2005)]. The court, even assuming that the tenant had complied with the catch-up payment terms, defended it's ruling by citing RTA 210(5) as authority for it's making the termination and eviction order in the context of disposing of an appeal. The principle established in Fraser was not offended since the court drew it's authority from the RTA itself.

Case Note: Belcourt Manor Inc v Collard (Div Ct, 2010)
Court reverses refusal of eviction order by Board where Board erroneously considered application on issue of demolition where application was based on renovation. Court does not send back down, but due to full record from below substitutes its own decision under Act s.210(4).

Case Note: Jung v Toronto Community Housing Corporation (Div Ct, 2008)
Board Orders may also be appealed on general grounds of what is called 'natural justice', which is a large common law category of principles dealing with basic procedural fairness. The leading Supreme Court of Canada case on procedural fairness is Baker v Minister (Citizenship and Immigration) (SCC, 1999). That case was applied here to grant an appeal and sent the matter back to be re-heard where the Board member showed a scattered and prejudicial attitude to both the case and the tenant party's counsel.

Case Note: Decosse v. Isles of Innisfree Non Profit Homes (Div Ct, 2012)
In this case the tenant was asserting a tenant's rights violation set-off defence against a non-payment of rent application. The Divisional Court found breaches of natural justice where:

• the Board failed to address it's RTA s.83(2) duty to 'review the circumstances' and to consider whether to grant relief from forfeiture, and
  
  
• the Board made an adverse credibility finding as to why the tenant was late for the original hearing despite there being no conflicting evidence on the point and despite the tenant having demonstrated a clear intention on other occasions to dispute the landlord's termination application.

Of similar effect on the s.83(2) point was the case of Ansari, et al v. JIHC Crescent Village (Div Ct, 2012).

(g) Appeal to Court of Appeal

A party may further appeal the decision of the Divisional Court to the Ontario Court of Appeal, with leave (permission) of that court [Courts of Justice Act, s.6(1)]. Applying for leave to appeal is a lot of paperwork, must be done quickly, and there is no guarantee of success - and, if successful, requires the party to re-do the extensive documentation required, yet again.

The Board as well has the right to appeal a Divisional Court decision to the Court of Appeal, as though it were a party [Act s.211].

The procedures for such appeals are beyond the scope of this legal guide.


4. When To Choose a Review, an Appeal - or Both?

As per the discussion of "grounds" for both review [s.2(e)] and court appeals [s.3(d)] above, there is overlap (and for that matter with respect to a judicial review as well).

Further, there is no provision in the legislation extending the time for filing an appeal until any reviews are resolved - so anyone waiting for their Review to be decided before they file an appeal will certainly be past the court appeal deadline by the time that a Review is decided. As well, the rules governing "stays" clearly anticipate situations where both a review and a court appeal will be conducted simultaneously [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement: Stays"].

What then is an aggrieved person to do in these awkward (and IMHO unreasonable) circumstances?.

Note from the above discussions that "questions of law" (which are grounds of appeal) are included within the grounds for review ("serious errors"). Prudence would then dictate that when the issues are legal in nature [as per s.3(d) above] then they should be both "reviewed" and "appealed" (in order to preserve the right to appeal) at the same time - but otherwise they should only be "reviewed". If the review is successful the appeal can be withdrawn as per court rules.

Where the party faces grounds of appeal other than ones of law, a review should be advanced for it's broad 'serious issue' jurisdiction. If the review fails then the party can consider a judicial review application.

Readers are cautioned that when considering 'review' versus 'appeal' versus 'judicial review' issues that you have to move quickly, and as surely as you can - in this increasingly treacherous legal area. Get a knowledgeable lawyer ASAP.


5. Judicial Reviews

Discussions of the general law relating to judicial reviews (JRs) of SPPA-governed tribunals (such as the Board) is found at these Isthatlegal.ca links:

Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Reviews

Judicial Review
Also of concern in any situation where a judicial review is being contemplated is the issue of "staying" (suspending) the original Order while the judicial review is being resolved [see Ch.14, s.7(f): "Hearings, Orders and Enforcement: Enforcement: Stays"].

Lastly, an amendment to the Judicial Review Procedure Act [s.5(1-2)] in 2020 imposes a new 30-day limitation period on JRs.


6. Reasons, Board File and Record of Proceedings

(a) Request Board Reasons

To facilitate any review, court appeal or judicial review, a party should always request "written reasons" from the Board (if not already issued). Oddly, the LTB takes the view that the issuance of reasons are discretionary to it and may be avoided, unless a review or an appeal is commenced [see Ch.14, s.6(c): "Hearings, Orders and Enforcement: Decisions, Reasons and Final Orders: Reasons"; R22.1-2].

When a review or appeal are commenced, the member is under a duty to issue reasons - although in the case of a review the duty is only "(w)here reasons are necessary for purposes of deciding a request for review" [R22.3-4].

In any event the Rules provide that such a request should be made "orally at the hearing" or "in writing within 30 days after the order which does not contain reasons is issued, unless the time for requesting written reasons has been extended in accordance with these Rules" [R22.2].

(b) Board File and Transcript

All SPPA-governed tribunals (including the LTB) shall keep a "record" (ie. file) of all proceedings in which a hearing has been held, including [SPPA s.20]:

• the document by which the proceeding was commenced;
  
  
• notice of hearing;
  
  
• any interlocutory orders, decisions and reasons for decision (where reasons are given);
  
  
• all documentary evidence filed with the tribunal, except as use of such evidence is limited by statute (in which case presumably it should not have been admitted into evidence and should be returned as appropriate);
  
  
• the transcript, if any, of the oral evidence given at the hearing.

Copies of materials in the file are available to the parties on payment of the required fee [R7.9], and are thus available for purposes of review, court appeal or judicial review. "Requests must be made within ten years of the date of the hearing" [R7.9].

However, it is not Board practice to prepare transcripts. "On notice to the LTB a party may retain a court reporter to create a transcript of the hearing. The LTB is not responsible for the cost of the reporter. If the transcript is used in the hearing a complete copy must be provided to the LTB and the other parties at the party's expense" [R7.10]. "A party may not make any other form of visual or audio recording without receiving permission from the LTB before the hearing begins" [R7.11].

Request for Hearing Recording