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Appeals - Leave to Appeal - Consent Orders. Joseph v. Savannah Groceteria
In Joseph v. Savannah Groceteria (Ont Div Ct, 2026) the Ontario Divisional Court grants a residential landlord's motion to quash an appeal, here where the underlying LTB order "was made with the consent of the parties and that leave has not been obtained for this appeal".
Here the court (yet again) considers what I view as procedural fairness issues wrt a disabled litigant (an ODSP recipient):[3] I accept that there are significant hardship issues which have put the appellant in the position where she has been unable to obtain legal representation for this appeal. She suffers from a disability and has a special needs child in her care. This appears to have limited her ability to participate in the legal process. She has not respected the various rules and statutory provisions that govern the review and appeal process when dealing with an LTB order. The court, however, must focus on the issues relating to her appeal and if it is properly before the Divisional Court.
[4] In the end, there is no basis to allow this appeal to continue. There is a clear requirement that the appellant seek leave to appeal. She has been put on notice by the court of this obligation and has failed to do so. She has also failed to demonstrate a factual basis upon which leave to appeal a consent order could be granted.
[5] In addition, it is clear that the LTB letter of December 19, 2025 was not the decision which should or could have been appealed. The Notice of Appeal should have been filed within 30 days of the appellant’s receipt of the September 17, 2025, LTB order. Accordingly, a motion to extend the time to appeal should have been brought. This deficiency cannot be cured by the Registrar’s acceptance of her Notice of Appeal and the Registrar’s issuance of the stay of the LTB order. The appellant’s appeal is not properly before the court as it was filed out of time.
[6] For the reasons set out herein, I conclude that the motion to quash must be granted and the stay of the LTB order must be lifted.
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[21] On March 2, 2026, a further case management conference was held, and the appellant was advised that she was required to bring a motion for leave to appeal the LTB consent order. The respondent also advised of its intention to bring a motion to quash the appeal.
[22] The appellant never brought her motion for leave to appeal, and this matter has now proceeded only in respect of the respondent’s motion to quash the appeal and lift the stay of the LTB order.
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[24] Section 133(a) of the Courts of Justice Act states that no appeal lies without leave of the court from an order made with the consent of the parties. It has been confirmed by the Divisional Court in Arnold v. Lulu Holdings Inc., 2021 ONSC 8125 at para. 34-37, that section 133(a) applies to appeals from the LTB to the Divisional Court.
[25] The Court of Appeal for Ontario considered the test for granting leave to appeal a consent order in Ruffudeen-Coutts v. Coutts, 2012 ONCA 65 at para. 64, where it stated:It follows that in cases where the issue relates to the validity of 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. Such evidence may relate to factors that may undermine the enforceability of contracts, such as fraud, duress, or undue influence. [26] In Joshi v. Joshi, 2014 ONSC 4677 at para. 6 and 9, the Superior Court of Justice stated that the test to set aside a consent order must establish grounds of common mistake, misrepresentation, fraud, or any other ground, which would invalidate contract or alternatively a material change in circumstance occurring after the consent order. The court further went on to state that a consent judgement is final and binding and should not be varied in the absence of extraordinary factors.
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Analysis
[28] I begin the analysis by making a number of findings based on the evidence before the court.
[29] The appellant was represented by a licensed paralegal at the LTB hearing on September 8, 2026 and that paralegal continued to represent the appellant in his dealings with the respondent for at least some time after the September 17, 2025 order. Further, the appellant, Ingrid Windsor Joseph was present at the LTB hearing/mediation. The appellant has failed to present compelling evidence establishing that there were any limits on the paralegal’s authority and his capacity to fully represent the appellant’s interests before the LTB.
[30] The appellant has failed to establish that the settlement reached before the LTB on September 8, 2025 was improvident, obtained by way of misrepresentation, fraud or any other ground that would invalidate the consent. Even if the appellant had brought a motion for leave based on the current record, the evidentiary record would not justify that leave to appeal be granted.
[31] On November 19, 2025, the appellant wrote to the LTB seeking a review of the September 17, 2025 order. By that date the period to request a review of the September 17, 2025 order had expired along with the period to file a notice of appeal of the September 17, 2025 order. As of on or about October 17, 2025, both the period to file an appeal and the period to request a review had expired.
[32] The letter of the LTB dated December 19, 2025 did not extend the appeal period to file a notice of appeal of the September 17, 2025 order. The appellant’s Notice of Appeal was misleading to the Registrar. The December 19, 2025 letter was not an eviction order as stated in the Notice of Appeal. The decision to deny the request to extend the period to file a review request was based on the appellant’s failure to provide a reasonable explanation for the delay. If there were appeal rights that existed from the refusal by the LTB to extend time, that refusal was based on findings of fact that the request to extend time did not explain why the review request was filed late. No appeal lies from the December 19, 2025 LTB letter given that such appeal would be on a question of fact and not a question of law.
[33] In addition to the above findings, the appellant’s arguments on this motion to quash focussed in large part on the need for an accounting to be provided relating to rents received by the respondent since November 2025. The appellant raised numerous objections relating to the fact that the respondent had received a paper cheque from ODSP on or about March 12, 2026 and that he had failed to send that check to the appellant. However, the specific wording of that obligation in the LTB order related to electronic transfers received by the respondent. That obligation did not apply to a paper cheque that was not cashed. The respondent did not cash the March 12, 2026 cheque, and as such he has nothing to forward to the appellant. That cheque should simply be returned to ODSP.
[34] The appellant has continuously claimed that she is owed an accounting of funds received by the respondent and the payments made to the respondent by the appellant or ODSP. I disagree. There is no link between the payments received by the respondent since November 2025 (post-LTB order) and the motion to quash. The issues to be decided by this court relate to the items which form part of the motion to quash and relate to the appeal of the LTB consent order. If the respondent received some form of overpayment for the rent owing since November 2025, that claim can form part of a separate proceeding.
[35] There are three issues that are before the court as part of this motion to quash.
[36] Firstly, the appellant has not sought leave to appeal. Section 133 of the Courts of Justice Act stipulates that no appeal lies from a consent order without leave of the court. The LTB termination order that is the subject of this appeal was made with the consent of the parties, yet no leave has been obtained (or sought) by the appellant. The appellant was warned at the case conference before this court that leave to appeal was required. The appellant has chosen to ignore that direction. This is a ground to grant the motion to quash. Regardless and as previously stated, the current record does not include evidence that would warrant granting leave to appeal.
[37] Secondly, an appeal to the Divisional Court lies on a question of law. When reading the Notice of Appeal, a generous reading of that document leads me to conclude that there may be a question of law raised in some of the grounds for appeal. Most of the grounds related to questions of fact or fact and law but I would not quash the appeal due to the absence of a question of law. That ground is not clearly made out.
[38] Thirdly, the appeal was out of time. On this point, it is clear that the LTB order was issued on September 17, 2025. The appellant did not state on what date she received it. However, she clearly received it more than thirty days before December 29, 2025. The December 19, 2025 letter refusing to proceed with a review did not extend the time to appeal the September 19, 2025 consent order. The appellant has not sought leave to extend the time to file her Notice of Appeal although being on notice by the respondent. This amounts to grounds to quash the appeal as it is not properly before the Divisional Court. . Rahimi v. Lafonte
In Rahimi v. Lafonte (Ont Div Ct, 2026) the Ontario Divisional Court quashed an LTB appeal. These extracts illustrate the potentially broad use of the R2.1.01 "frivolous or vexatious or otherwise an abuse of the process of the court" provision, here including use against basic procedural flaws such as:- "an appeal where the rules clearly provide that leave to appeal is required",
- the appeal required that the appellant "must bring a motion for an extension of time".
The court states:[6] Rule 2.1.01 allows for the determination of whether the action is frivolous or vexatious at the very outset of the action. The process is in writing without an evidentiary record. It is aimed at clear cases. The process is not for “close calls”. The action is to be dismissed pursuant to Rule 2.1.01 only if the frivolous, vexatious, or abusive nature of the proceeding is apparent on the face of the pleading: Scaduto v. LSUC, 2015 ONCA 733, at para. 8.
[7] Although proceedings which are clearly frivolous or vexatious on their face should not be permitted to proceed, care must be taken to ensure that a claim which includes a legitimate complaint is not summarily dismissed. As noted in Gao v. Ontario WSIB and Ontario Ombudsman, 2014 ONSC 6497, at para. 18:While rule 2.1 should be applied robustly to bring an early end to vexatious proceedings, the matters should not [be] considered lightly or dismissively. Care should be taken to allow generously for drafting deficiencies and recognizing that there may be a core complaint which is quite properly recognized as legitimate even if the proceeding itself is frivolously brought or carried out and ought to be dismissed. [8] The Court’s “task in deciding a motion brought pursuant to R. 2.1.01 is to look beyond drafting deficiencies to determine the nature of the Plaintiff’s complaint and whether that complaint is frivolous, vexatious or an abuse of process”: Mohammad v. McMaster University, 2021 ONSC 3494.
[9] The issue in the present case is not whether the appeal lacks merit, it is whether the Appellants may circumvent the rules of procedure and bring an appeal where the rules clearly provide that leave to appeal is required and that the appellants must bring a motion for an extension of time. The abuse of process in this case is an abuse of the procedural requirements.
[10] Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that leave to appeal is required from a consent order. Section 133(a) states:133 No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; [11] In Lou v. Abagi, 2018 ONSC 1587, the parties entered into a settlement agreement that was incorporated into a consent order requiring the tenant to vacate his rental unit. The tenant then sought to appeal the order. Peterson J. held that no consent order from the LTB may be appealed without leave of the Court:Section 133 of the Courts of Justice Act stipulates that no appeal lies from a consent order without leave of the court. The LTB termination order that is the subject of this appeal was made on consent of the parties, yet no leave has been obtained (or sought) by Mr. Abagi to bring the appeal. [12] Peterson J. declined to adjourn the proceedings to permit the appellant to bring a motion for leave to appeal and quashed the appeal for failure to seek leave, and because it was “manifestly devoid of merit” and constituted an abuse of process.
[13] Similarly, in Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, Matheson J. was confronted with a case in which the consent itself was challenged or disputed. She concluded that leave to appeal was required, at paras. 34 – 37:This appeal should also be quashed because no leave to appeal has been sought or granted.
Section 133 of the Courts of Justice Act provides that no appeal lies, without leave, from an order made with the consent of the parties. The appellant submits that leave is not required in this case because the consent is disputed on the appeal.
The appellant relies on Ruffudeen-Coutts v. Coutts, 2012 ONCA 65, however, that case does not hold that leave is not required when the consent is challenged. It does provide a test for the granting of leave from a consent order where the consent is challenged.
On its face, the LTB order is a consent order. This is further confirmed by the recording of the hearing. The majority of the court in Ruffudeen-Coutts 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.). Further, the adjudicator’s determination should attract deference and the threshold for granting leave is high: at paras. 69 and 72 (per Epstein J.). The court did not hold that leave to appeal was not required. See also: Morgan v. Whing, 2009 CarswellOnt 2927 (Div. Ct.), at para. 7, Eldebron Holdings Limited v. Mason, 2016 ONSC 2544, at para. 14; Singh v. Mylvaganam, 2018 ONSC 5955, at para. 2; Faulknor v. Li, 2025 ONSC 4415, at para. 7.
[14] In this regard, the decision of the Divisional Court in Trust Construction Corporation v. McKie, 2017 ONSC 4702, at para. 6 is germane:It is also a matter of concern that parties ought not to be easily able to revisit orders that have been made on consent. The effective resolution of matters that come before the Board will be greatly impaired if parties can continually seek to revisit issues that they have earlier agreed to resolve. [15] As Arnold makes clear, leave to appeal a consent order is required even if the consent itself is challenged or disputed. . Kaftroudi v Ravadgar et al (1) [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. . Kaftroudi v. Ravadgar (2) [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. . Faulknor v. Li
In Faulknor v. Li (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenants' RTA s.210 appeal, here on R2.1 frivolous and vexatious grounds.
As the LTB order being appealed was a consent order, the court noted that leave to appeal was required [under CJA 133a]:[7] There is no appeal before this court with respect to the underlying consent orders because no leave to appeal has been sought. Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (CJA) provides that leave to appeal is required from a consent order.
[8] Section 133(a) states:133 No appeal lies without leave of the court to which the appeal is to be taken, (a) from an order made with the consent of the parties; ... [9] Section 133(a) applies to consent orders of the LTB: see Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34-37; Ravadgar v. Kaftroudi, 2023 ONSC 5471, at paras. 11 to 19, and cases cited therein. Therefore, the only issue in this appeal is whether the LTB erred in dismissing the request for an extension of time to bring a request for review. . Leginj v. Rahman
In Leginj v. Rahman (Ont Divisional Ct, 2025) the Divisional Court, in the course of an RTA s.210 appeal case conference, considered the CJA s.133(a) leave to appeal requirement for appeals of consent orders:[7] Neither party appealed this consent Order, nor could they. Section 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, (CJA) provides that leave to appeal is required from a consent order. Section 133(a) states:133 No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; [8] Section 133(a) applies to consent orders of the LTB: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at paras. 34-37; Ravadgar v. Kaftroudi, 2023 ONSC 5471, at paras. 11 to 19, and cases cited therein.
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