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RTA - Appeal - Quashing. Ross v. Danbar Property Holdings
In Ross v. Danbar Property Holdings (Div Court, 2024) the Divisional Court allowed a motion to quash an RTA s.210 appeal:[9] Moving to the motion, this Court has jurisdiction to quash an appeal under section 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 where the appeal is “manifestly devoid of merit” or can be said to be an abuse of process because it has been brought solely for the purpose of delay: Regan v Ennis, 2016 ONSC 7143 (Div. Ct.), at para. 24. . Songja Hasselsjo and Dernetro Holdings Ltd. c/o Effort Trust
In Songja Hasselsjo and Dernetro Holdings Ltd. c/o Effort Trust (Div Court, 2024) the Divisional Court grants a motion to quash an RTA appeal:[8] On this motion, the Landlord asks that the appeal be quashed or dismissed on the basis that it is devoid of merit and does not raise an issue of law. As stated by Ryan Bell J. in Maynard v. Kerr, 2022 ONSC 4259, at paragraphs 16 and 17:[16] The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank. While the bar is generally high for quashing an appeal on the basis that it is devoid of merit, it is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: Meglis v. Lackan.
[17] In Canada (Director of Investigation & Research) v. Southam Inc., the Supreme Court of Canada described the difference between a question of law and a question of fact:Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests. . Abdalla et. Al. v. Koirala
In Abdalla et. Al. v. Koirala (Div Court, 2023) the Divisional Court considered (and allowed) a motion to quash an RTA s.210 appeal, in part here for lack of appeal merit:The appeal is devoid of any merit
[36] Lack of merit is an alternative basis on which an appeal may be quashed: Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 at para. 28. The question on a motion to quash is whether the appeal is “manifestly devoid of merit”: Schmidt v. Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1 (C.A.), at para. 6. Because this is a drastic finding, quashing an appeal for lack for merit should not be done lightly.
[37] An appeal from a decision of the Board is only available on a question of law: Section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. It is appropriate to quash an appeal from an order of the Board where the appeal does not raise a question of law: Mubarak at para. 30; Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 33-34; and Mahdieh v. Chen, 2019 ONSC 4218 (Div. Ct.), at para. 8. . Abdalla et. Al. v. Koirala
In Abdalla et. Al. v. Koirala (Div Court, 2023) the Divisional Court considered (and allowed) a LL's motion to quash, here on 'abuse of process' grounds (abuse of the automatic stay on appeal):The appeal is an abuse of process
[30] 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”. An appeal may be quashed where it amounts to an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (CanLII) at para. 17.
[31] A litigant who brings an appeal from an order of the Board to get an automatic stay of an eviction order, is abusing the process of the court: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. Where a tenant has failed to pay rent for a persistent and lengthy period without a reasonable explanation or any intention to remedy the situation, this may amount to evidence that the tenant’s appeal is an abuse of process at the expense of the landlord: Wilkinson, at para. 34 and Oladunjoye, at para. 27.
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