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Disability - Fairness. 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. . Papouchine v. College of Immigration and Citizenship Consultants
In Papouchine v. College of Immigration and Citizenship Consultants (Fed CA, 2026) the Federal Court of Appeal classically illustrates difficulties that the disabled (and unrepresented), other parties, and the courts have in ensuring that the disabled have a fair hearing.
. McCready v. Toronto Community Housing Corporation
In McCready v. Toronto Community Housing Corporation (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a motion to extend time to commence an RTA s.210 appeal.
A social housing tenant unsuccessfully argues disability bias and lack of fairness:[9] The tenant’s second argument is that the Board likely had “some unconscious but well-meaning bias” against her because she was disabled and unable to appear competent. She argues that although she had been paying full rent plus an additional amount towards arrears since January 2024, the Board’s likely biased view of her led it to find her incapable of continuing to pay rent plus a payment arrangement. The tenant relies on “crip time,” which she explains is a concept reflecting the non-linear and protracted pace of progress for disabled individuals. She also underscores the progress she has made since January 2024 in consistently paying her rent and in pursuing various avenues that will increase her ability to obtain a job and to have additional supports to assist her.
[10] In her additional submissions, the tenant also states that her ability to participate in the June 2024 Board hearing was “severely limited” and that she did not formally request accommodation because unsupported disability affects communication and self-advocacy.
[11] I agree with the landlord that the tenant does not have a tenable appeal. My conclusions are not meant to undermine the struggles the tenant has faced, nor the efforts she is making to move forward. But the court’s task is not to assess the tenant’s challenges, intentions, or efforts in isolation. It is instead to review the decision of the Board for errors of law.
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Bias/Procedural Fairness
[17] There is also no plausible likelihood the tenant will succeed in her submission that the Board was biased or breached procedural fairness. The tenant’s submission that the Board member was likely biased is a bald statement without factual basis. Establishing bias requires meeting a stringent standard. In this case, the Board provided detailed reasons for not permitting the tenant to proceed with a proposed repayment plan. These reasons included that the arrears owing were substantial and exceeded the Board’s monetary jurisdiction; the arrears of rent dated back more than 6 years; and the landlord had attempted to work with the tenant on multiple occasions but the arrears only seemed to increase after each repayment plan was entered into. In recognition of the tenant’s circumstances, the Board also found it would not be unfair to delay the termination of the tenancy. Considering the Board’s detailed reasons and the absence of a factual basis to demonstrate bias, there is no prospect of the tenant succeeding on this ground.
[18] The tenant also asserts she was denied procedural fairness because she was severely limited from participating in the June 3, 2024 hearing that led to the order she seeks to appeal. She states that at that time, she did not have a wheelchair and had only been receiving consistent income supports for six months. However, she does not dispute that she attended and participated in the hearing, which occurred by videoconference. She also acknowledges she did not raise any request for accommodation at the hearing. It does not appear that she raised any issue of procedural unfairness at the hearing, which means this argument would be raised for the first time on appeal. In all of the circumstances, there is no reasonable prospect of success on this argument on an appeal.
Additional Information about Personal Progress and Readiness for Employment
[19] The tenant is to be applauded for the efforts she has made to pursue her studies and health recovery. However, much of the information she provides arose after the Board’s order and could only be considered by the court if the tenant were successful in introducing it through a motion for fresh evidence. The Board was entitled to weigh the relevant circumstances at the time and grant the order terminating the tenancy. The additional information provided by the tenant, even if it were admitted on appeal, would not provide a basis for the court to find an error of law in the Board’s decision.
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