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Appeals - Leave to Appeal - Consent Orders. Kaftroudi v. Ravadgar [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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