COURT OF APPEAL FOR ONTARIO

DATE: 20260108

DOCKET: COA-25-OM-0451

Roberts J.A. (Motion Judge)

BETWEEN

Mary Annette Ellenor

Responding Party

and

Vladislav Chernysh

Moving Party

Vladislav Chernysh, acting in person

Anthony Spadafora, for the responding party

Heard: December 2, 2025

REASONS FOR DECISION

[ 1 ] The moving party residential tenant seeks an order: 1) extending the time to file a motion for leave to appeal the October 30, 2025 order of O’Brien J., sitting as a single judge of the Divisional Court; and, if the extension is granted, 2) staying the Landlord and Tenant Board order of eviction scheduled for December 8, 2025.

[ 2 ] On December 2, 2025, I advised the parties that the motion for an extension of time and for a stay was dismissed with reasons to follow. These are those reasons.

[ 3 ] The relevant background is as follows.

[ 4 ] On February 10, 2025, in response to the responding party landlord’s application seeking an eviction order to allow her son to live on the premises, the Landlord and Tenant Board (the “LTB”) granted an order terminating the moving party’s tenancy (the “eviction order”). On June 30, 2025, the LTB denied the moving party’s request to review the eviction order (the “review order”).

[ 5 ] On July 21, 2025, the moving party started an appeal of the eviction and review orders before the Divisional Court, which automatically stayed the eviction order pending appeal.

[ 6 ] On October 30, 2025, following a case conference held in the appeal proceedings, O’Brien J., sitting as a single judge of the Divisional Court, [1] lifted the stay of the eviction order because of the moving party’s failure and inability to pay rent. During the case conference, the moving party indicated that he would appeal the lifting of the stay. O’Brien J. advised him that the proper route to challenge the order was pursuant to a review motion under s. 21(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43.

[ 7 ] On November 21, 2025, Corbett J., sitting as a single judge of the Divisional Court, struck out the moving party’s motion to set aside the lifting of the stay because the motion was not framed as a panel review motion but sought a fresh determination of the issues decided by O’Brien J. He also indicated that the moving party was still entitled to seek a panel review and pursue the underlying appeal after the scheduled eviction took place.

[ 8 ] On or around November 28, 2025, the moving party filed the present extension and stay motion before this court.

[ 9 ] The threshold issue on this motion is whether this court has the jurisdiction to hear it. It is well-established that this court does not.

[ 10 ] As this court confirmed in Bernard Property Maintenance v. Taylor , 2019 ONCA 830 , 148 O.R. (3d) 494, at paras. 2-3 , “the proper process to set aside or vary a decision of a single judge of the Divisional Court is a motion pursuant to s. 21(5) of the [ Courts of Justice Act ] before a panel of the Divisional Court”. Coote v. Ontario (Human Rights Commission) , 2010 ONCA 580 , cited with approval by this court in Bernard , affirms that with respect to the appropriate route to challenge a decision of a single judge of the Divisional Court, the “proper appeal route is to a panel of the Divisional Court on a motion under s. 21(5) of the Court of Justice Act .” See, also: Amstar Pool ILP v. Tweneboa-Kodua , 2025 ONCA 493 , at para. 6 ; Pannone v. Peacock , 2022 ONCA 520 , at para. 11 ; Lum v. College of Physiotherapists of Ontario , 2020 ONCA 271 , at para. 15 . All of these cases confirm that there is no appeal to this court from the order of a single judge of the Divisional Court in the present circumstances.

[ 11 ] The moving party’s reliance on s. 6(1) (a) of the Courts of Justice Act is misplaced. Section 6(1)(a) of the Courts of Justice Act permits this court to hear an appeal, with leave, from an order of a panel of the Divisional Court. As already noted, under s. 21(5), a review of an order made by a single judge of the Divisional Court lies to a panel of the Divisional Court. O’Brien J. made her case conference direction while sitting as a single judge of the Divisional Court.

[ 12 ] Accordingly, the request for an extension of time to file a motion for leave to appeal is dismissed. In consequence, it follows that the request for a stay of the eviction order, which depends on the extension being granted, must also be dismissed.

[ 13 ] The moving party submits that there should be no costs of this motion because he cannot pay them. The moving party’s ability to pay costs is only one factor to be taken into account and is not determinative. The moving party was advised by O’Brien and Corbett J., as well as by the responding party landlord and this court’s administrative office, that the route to challenge O’Brien J.’s order was to the Divisional Court. Notwithstanding this advice, he elected to pursue his motion before this court. The responding party is therefore entitled to her costs of this motion in the all-inclusive amount of $1,500.

“L.B. Roberts J.A.”

[1] O’Brien J. did not hear an appeal under s. 21(2) (a) or (b) of the Courts of Justice Act , nor was she designated to hear the matter under s. 21(2)(c).