|
Appeals - Leave to Appeal - Consent Orders. 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
....
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.
....
[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.
|
