Jeff Schlemmer

The tenant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a single judge's decision dismissing her motion for leave to appeal a Landlord and Tenant Board consent eviction order.

The Divisional Court panel held that under the newly enacted Rule 62.02(1)3, leave to appeal a tribunal order requiring leave must be heard by a three-judge panel, not a single judge.

The panel set aside the single judge's decision, heard the leave motion, and granted leave to appeal the eviction order.

The tenant sought leave to appeal a Landlord and Tenant Board consent order terminating her tenancy for rent arrears, arguing the order was invalid because it lacked a mandatory 'pay and stay' voiding clause under s. 74(3)(b) of the Residential Tenancies Act.

The Divisional Court dismissed the motion for leave to appeal, finding that under s. 194 of the Act, parties can agree to settlements that contravene other provisions of the Act.

As the tenant consented to the order with the assistance of counsel and an interpreter, and there was no evidence of fraud or duress, the high threshold for appealing a consent order was not met.