ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Zahra Kaftroudi
Plaintiff/Applicant
– and –
Shayan Ravadgar
Defendant/Respondent
And Landlord and Tenant Board
Jeff Schlemmer, for the Plaintiff/Applicant
Wade Morris and Efemena Oghenejakpor, for the Defendant/Respondent
Eli Fellman, for the LTB
HEARD: March 7, 2025
WANNAMAKER J
1The appellant seeks leave to appeal from a Landlord and Tenant Board (“LTB”) order LTB-LO 12912-23 dated July 4th, 2024, made by Laura Hartslief, Member; and from order LTB 012912-23-RV , dated August 17, 2023, made by Renee Lang, Vice Chair, on a refusal to order a review hearing of the first order.
2The respondent party landlord submits that leave to appeal should be dismissed or, in the alternative, if leave to appeal is granted, that the appeal be dismissed. He asks that the certificate of stay dated September 1, 2023 be lifted immediately.
3The LTB as an affected party, takes no position with respect to the order sought other than if the appeal is allowed, it asks that the application be remitted to the board for a new hearing.
BACKGROUND
BACKGROUND
4The appellant, Ms. Kaftroudi, is a single mother of a disabled daughter whose source of income is Ontario Works. The respondent, Shayan Ravadgar, is her landlord. Ms. Kaftroudi fell into arrears for non-payment of rent and Mr. Ravadgar commenced an L1 application to the Landlord and Tenant Board under the Residential Tenancies Act, 2006, S. O. 2006,
C. 17 (the Act).
5The application was held by video conference on June 22, 2023.
6At the hearing of the application, the landlord Mr. Ravadgar was present and was represented by a licenced paralegal. Ms Kaftroudi was also in attendance and represented by Michelle Sutherland, a lawyer from the Community Legal Services of York Region. Ms Kaftroudi also had the assistance of a Farsi interpreter.
7Presiding Member Hartslief began by asking the parties if they would be interested in mediation to which they responded in the affirmative. A breakout room was created where they met with a dispute resolution officer. They returned to the main session before the Member, and indicated they had arrived at a settlement.
8The settlement was read out by Member Hartslief before all parties (including with the use of the interpreter for Ms. Kaftroudi) to confirm their agreement. It read as follows:
a) that the tenancy will terminate on August 15, 2023
b) that the outstanding rent to June 30, 2023 was $8,976
c) that the tenant will pay the landlord $1,300 by July 1, 2023 and a further $650 by August 1, 2023 which was the prorated amount to termination date of August 15, on the monthly rent of $1,300.
d) the tenant will pay the landlord the arrears of $7,026 on or before the termination date
9When reading out the terms of settlement, Member Hartslief confirmed with the appellant by saying:
Ms. Hartslief: if you stay longer than August 15 the landlord can run to the sheriff and the sheriff can change the locks and evict you on August 16
A: Yes
Ms. Hartslief: also if you stay longer than August 15, you are going to owe the landlord
$48.16 for every single day that you stay longer than August 15th A: Okay
Ms. Hartslief: do you understand those terms? A: Yes
Ms. Hartslief: do you have questions about any of those terms? A: No
Ms. Hartslief: do you agree to those terms?
A: Yes
10The settlement terms reflected a marginal reduction in rent for July and August (pro-rated) of $165 for July and $82.50 for August.
11Member Hartslief then issued a consent order on July 4, 2023 (the “Order”) which reflected the terms agreed upon by the parties, including a term that the landlord could bring forward the termination date if the tenant failed to make the agreed payment of the various amounts contained in the settlement per the prescribed dates.
12The parties agree that there was no discussion about a voidable clause, pursuant to s. 74(3)(b) of the Act. That section, often referred to as a “pay and stay” clause, provides that eviction orders for rent arrears shall include a term that if the tenant pays the outstanding rent arrears and costs, the eviction order is voided. No reference to s. 74(3)(b) was made in the Order of July 4, 2023.
13Ms. Kaftroudi made the requisite payments provided by the settlement, including the payment for rent arrears. She did not give up possession of her apartment on August 15, 2023. Instead, she filed a motion to void the order in accordance with s. 74(11) of the Act.1
14Ms. Kaftroudi’s motion was denied on the basis that “according to the order, the parties agreed to terminate the tenancy on August 15, 2023. The Order does not contain a voiding clause. Therefore, the tenant’s motion to void is denied.”
15Ms. Kaftroudi then sought a review hearing to question the omission of the voiding clause. Vice Chair Renee Lang refused to order a review hearing in finding that parties may consent to a non-voidable order because they may agree to terminate under s. 37 of the Act. She further found that parties ought not to be easily able to revisit orders that have been made on consent, relying on Trust Construction Corporation v. McKie, 2017 ONSC 4702. When she listened to the recording, she found that she was not satisfied that there was a serious error in the order or that a serious error occurred in the proceedings. She denied the request to review.
16More specifically, the Vice-Chair held that there was no possibility that the failure to include the clause may constitute a serious error and that the review request was, in essence, frivolous. She found that the tenant had not requested that the clause be included. She held that, from the absence in the record of any mention of waiving the voiding clause, the appellant had consented to waive it.2
17The appellant now seeks leave to appeal the Review Order to this court.
ISSUES
ISSUES
18(A) on the motion for leave to appeal:
i) what is the standard of review of a motion for leave to appeal?
ii) has the appellant met the test for leave to appeal?
(B) if leave is granted:
i) what is the standard of review on the issues raised by the appellant?
ii) does s. 74(3)(b) of the act apply to settlement agreements, which are then issued by way of consent orders?
iii) did the Board misuse its discretion in declining to order a review hearing in this case?
LEAVE TO APPEAL A DECISION OF THE REVIEW BOARD
19Section 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
20The appellant submits that in fact this was not a consent order at all because what is at issue is the consent itself. The appellant disagrees she consented to the terms before the Board.
21The respondent says that this was a consent order, and because of that, the moving party must first show an arguable case that when the order was made, the consent of the party seeking leave was obtained by fraud, duress, estate, undue influence or some other vitiating circumstance. They argue the applicant has not met this test.
ANALYSIS re LEAVE TO APPEAL
22Section 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.
23Before 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.
24The 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.
25The 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.
26On its face, the Order of the LTB here is a consent order. This is further confirmed by reviewing the transcript of the hearing. What the record before me shows is as follows:
i) Ms. Kaftroudi was a competent adult who was represented by a lawyer at the time of the Order;
ii) Ms. Kaftroudi used a translator to mediate as well as review the terms upon re- entering the hearing;
iii) the Member went over all terms of the Order with Ms. Kaftroudi, confirming her understanding;
iv) Ms. Kaftroudi confirmed that she understood and agreed with the Order;
v) As part of the agreement, Ms. Kaftroudi acknowledged arrears owing, promised to pay them, and promised to pay rent owing; and
vi) neither party mentioned a voiding clause at any time.
27The significance of this exchange is that, given there is nothing in the record to suggest otherwise, an inference can be drawn that the parties consented to the Order as read out.
28Ms. 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.
29In 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.
30Mr. 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.
31Ms. Kaftroudi says that s. 194 does not apply because that section deals specifically with settlements, not orders.
32Section 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.
33I 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.
34Lastly, 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.
35Section 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.
36For 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.
37As a result, leave to appeal is dismissed. The Certificate of Stay dated September 1, 2023 shall be lifted immediately.
38Given the information I am privy to about Ms. Kaftroudi’s unique circumstances including her disability and that she has sole responsibility for her disabled daughter, even a minimal costs award would be an exceptional hardship. I decline to order costs against her in this appeal.
Wannamaker J
Released: April 16, 2025
CITATION: Kaftroudi v Ravadgar et al, 2025 ONSC 2366
Zahra Kaftroudi
– and –
Shayan Ravadgar
Plaintiff/Applicant
Defendant/Respondent
And Landlord and Tenant Board
Eli Fellman
Released: April 16, 2025
Footnotes
- request to review August 14, 2023 order number LTB-01292-23
- Order No. LTB-L-012912-23-RV dated August 17, 2023
- 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
- 14.1 Where all parties consent, some or all of the terms of a settlement agreement may be made part of an order. 14.2 If the LTB is satisfied that the terms of the agreement are consistent with the RTA it may issue a consent order as requested by the parties.