Lynch v. Ross Wilson Holdings Ltd., 2026 ONSC 2471

CITATION: Lynch v. Ross Wilson Holdings Ltd., 2026 ONSC 2471

DIVISIONAL COURT FILE NO.: 101/25

(Brampton)

DATE: 202600601

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CHRISTOPHER LYNCH, Moving Party / Appellant / Tenant

AND:

ROSS WILSON HOLDINGS LTD., Responding Party / Respondent / Landlord

BEFORE: D.L. Corbett, O’Brien, and Shore JJ.

COUNSEL: Christopher Lynch, self-represented

Spencer Toole, for the Responding Party

HEARD: February 27, 2026, In-writing

REASONS FOR DECISION

D.L. Corbett J.

Background

[1] The Appellant / Moving Party, Christopher Lynch, has rented residential premises in Burlington, since December 15, 2007.

[2] Mr Lynch fell behind on his rent, and the Respondent / Responding Party landlord, RWHL, pursued that issue before the Landlord and Tenant Board (“LTB”).

[3] The LTB found that monthly rent was $1,303.36 and that arrears of rent were $8,964.57 as of February 28, 2025. The LTB terminated the tenancy.

[4] Mr Lynch twice sought reconsideration of the LTB decision unsuccessfully: LTB Review Decisions dated July 30, 2025, and July 31, 2025.

[5] Mr Lynch then commenced an appeal to the Divisional Court on August 27, 2025. The LTB eviction order was statutorily stayed pending Mr Lynch’s appeal.

[6] Triage directions of Trimble J. were sent to the parties by email on September 23, 2025. Those directions required the parties to provide a consent schedule for the appeal, or to schedule a case conference to establish the appeal schedule. In addition, those directions required Mr Lynch to confirm that arrears and ongoing rent were being paid into trust or into court, or alternatively, if the amounts payable were in dispute, Mr Lynch was required to state the monthly rent, the quantum of arrears, and to provide evidence of any disputed payments.

[7] A case management conference was held before Trimble J. on November 19, 2025, to address scheduling the appeal and interim payment terms to maintain the stay pending appeal.

[8] Mr Lynch paid nothing on account of rent after the original LTB decision, as of February 2025, and thus there was a further nine months ($11,703.24) of arrears by November 1, 2025, for total arrears of $20,667.81.

[9] Trimble J. ordered Mr Lynch to pay rent as it fell due ($1303.36 per month), and to pay $1,000 per month on account of arrears pending the appeal, failing which RWHL could request an order lifting the stay of the LTB eviction order.

[10] Mr Lynch then commenced a motion to review the order of Trimble J. pursuant to s. 21(5) of the Courts of Justice Act, RSO 1990, c. C.43 [the “CJA”] and moved for an interim stay of the order of Trimble J. pending the hearing of the review motion.

[11] Mr Lynch did not comply with the payment terms ordered by Trimble J. Pursuant to the order of Trimble J., RWHL moved for an order lifting the stay of the LTB eviction order.

[12] On December 24, 2025, Emery J., case managing the s. 21(5) review motion, directed that Mr Lynch’s motion for a stay pending the review motion be heard in writing by a panel of three judges of the Divisional Court on an expedited basis: as a result, this issue came before this panel in writing on February 27, 2026.

[13] Emery J. expressly declined to stay the order of Trimble J. pending the stay motion before this court, but he did direct that the motion to enforce the order of Trimble J. not be heard until after this court disposed of Mr Lynch’s stay motion. The motion to enforce would then be scheduled unless this court decided RWHL’s enforcement request.

[14] On February 27, 2026, in a brief endorsement, we dismissed Mr Lynch’s motion for a stay of the order of Trimble J., lifted the stay of enforcement of the LTB eviction order, and directed the Court Enforcement Office to provide RWHL with possession of the leased premises “as soon as reasonably practicable”. We indicated that these further reasons would follow in due course.

Analysis

[15] The statutory stay of an LTB eviction order pending appeal to this court is part of a comprehensive scheme balancing the rights, obligations and interests of residential landlords and tenants. Its purpose, as is the general purpose of a stay pending appeal, is to preserve a reasonable state of affairs pending the appeal so that justice may be done to both sides at the end of the case. The stay does not exist to enable tenants to obtain a period of rent-free living at the expense of the landlord.

[16] Tenants are obliged to pay their rent monthly, as it falls due.

[17] Tenants are not entitled to set-off claims they believe they have against their rent unless and until the LTB grants their abatement claim. The LTB may insist that tenants pay their rent monthly, on time, pending proceedings in which a tenant asserts an abatement claim. This court, on appeal from the LTB, may likewise insist that tenants pay their rent, on time, and may order payments on account of arrears found to be owing by the LTB, pending the appeal.

[18] Appeals to this court from decisions of the LTB are available only in respect to questions of law. In most situations, the LTB’s findings in respect to monthly rent and the quantum of arrears are findings of fact or findings of mixed fact and law, not subject to appeal to this court.

[19] Where an appeal is brought to this court from an LTB decision respecting rent and arrears, this court usually imposes payment terms as a condition for continuing the statutory stay of the LTB eviction order pending appeal. In a case such as this one, where arrears are substantial, relative to the monthly rent, and the tenant ceased paying any rent at all following the LTB order, this court may lift the stay without first imposing payment terms: nothing bespeaks abuse of process more eloquently than a tenant’s long-term and continuing failure to meet their obligation to pay rent as it accrues. However, in many cases the court does impose payment terms with a proviso that failure to meet those terms will result in the stay being lifted without much further ado.

[20] This approach to imposing payment terms is important to the proper functioning of this court’s appellate jurisdiction over appeals from the LTB. Otherwise, tenants could obtain an extended period of rent-free living through the expedient of bringing an appeal. It is this court’s responsibility to exercise its discretion in a manner that is faithful to the scheme of the Residential Tenancies Act to achieve the Legislature’s goal of establishing a fast, reliable and fair process for adjudicating disputes between landlords and tenants.

[21] In this case, the tenant’s abuse of process seems clear from the outset. Mr Lynch owed $8,964.57 as of the time of the LTB order, and by the time the matter reached the case management judge, arrears had grown to $20,667.81. On the information provided by Mr Lynch to the case management judge, he could not pay monthly rent as it fell due and could not make meaningful payments towards arrears pending the appeal.

[22] In light of Mr Lynch’s long-term failure to meet his obligation to pay rent, his failure to make any payments on account of rent since the decision of the LTB, and his admission that he could not afford to pay rent or arrears, the case management judge could have lifted the stay without further process. It seemed clear, based on history and based on the tenant’s admission, that this was now a failed tenancy, and that with every passing month the landlord would suffer a further loss of rent without any reasonable prospect of being able to recover it. Imposing payment terms in these circumstances would prolong the inevitable, to the landlord’s prejudice.

[23] This said, deciding to order payment terms, and fashioning those terms, is a matter of judicial discretion to which significant deference is owed by a reviewing court. Where a tenant claims impecuniosity, the judge may conclude that the tenant may meet payment terms if required to do so and so may give the tenant a chance to meet such terms in order to preserve the tenancy. The terms imposed in this case were very favourable to Mr Lynch. Payment of monthly rent, as it falls due, is usually a necessary, but seldom a sufficient, term to maintain a stay for non-payment of rent where there are substantial arrears. Payment terms should ordinarily include payments on account of arrears sufficient to show that the tenant is sincere about retiring arrears and continuing the tenancy. The requirement to pay $1,000 per month towards about $20,000 in arrears could be thought to meet this requirement but would have to be viewed as being on the very low end of the spectrum of reasonable interim payment orders.

[24] Finally, I would observe that a review motion pursuant to s. 21(5) of the Courts of Justice Act is not a basis on which the court will usually entertain a further stay motion pending the review motion. Such a motion is no more than a request to have one single judge second-guess the exercise of discretion of another single judge. This problem is compounded, not cured, by putting the interim stay motion before a panel: this court does not convene a panel to set interim payment terms – the s. 21(5) review motion case management judge’s decision to place this issue before a panel in this case was exceptional, presumably because a clear panel precedent on these issues warranted departure from the usual practice that such motions be dealt with by a single judge of the Divisional Court. Usually, the appeal itself could be disposed of faster than a review motion over interim payment terms, and deferring the appeal until after a review motion is decided places the proverbial review tail before the substantive appeal horse: LTB appeals should normally be processed promptly through the Divisional Court: they are not usually complex, either factually or legally, and effective process before the LTB is supported by a swift, effective appeal process in this court.

[25] Of course, once Mr Lynch has been evicted, remedial options on appeal will be circumscribed. This is not the dilemma that Mr Lynch seems to think it is. There is no presumption that an unsatisfactory state of affairs will be preserved pending exhaustion of all appeal rights. Otherwise, a tenant could bring an appeal, stop paying rent, pursue appeals here, at the Ontario Court of Appeal, and at the Supreme Court of Canada, over the course of years, without paying any rent, to the prejudice of the landlord. That would not be a “reasonable state of affairs pending appeal” and would bring the administration of justice into disrepute.

[26] This court’s jurisprudence has been clear on these points for many years. This court’s practice in respect to these cases is set out in the Consolidated Practice Direction for Divisional Court Proceedings – Ontario Superior Court of Justice and has been confirmed in numerous published endorsements. Tenants may not obtain a period of rent-free living, at the expense of their landlord, by bringing an appeal to this court. Where appeals arise involving failure to pay rent, this court will set payment terms, as early as reasonably possible, using the case management process. Where tenants fail to pay in accordance with interim payment terms, the stay of the LTB’s eviction order will usually be lifted and will not be reinstated pending efforts by the tenant to challenge the interim payment terms. “Reasonable payment terms” are fixed primarily on the basis of the monthly rent and accrued arrears, with the tenant’s financial circumstances taken into account in fashioning the precise payment terms. Where a tenant cannot meet reasonable payment terms, then it is time to lift the stay of enforcement of the eviction order.

[27] The process for establishing interim rent payment terms in Divisional Court appeals from the LTB is supposed to be informal and fast, using triage and case management to address these matters as soon as practicable after the appeal is commenced. As noted in Galaxy Real Estate v. Kirpichova, 2023 ONSC 593, para. 15:

This point is all the more important in the context of landlord and tenant matters, where the amounts in issue are modest (relative to the cost of court proceedings), and one or both parties are often self-represented. The process followed in this case gave fair notice to all. It gave the tenant an opportunity to place information and evidence before the case management judge respecting the rent arrears. It gave notice that an order could be made at the case management conference for payment on account of rent and arrears. All of this was accomplished with the exchange of a few emails and one telephone call with a judge. No costs were ordered for these steps in the process. And it was all accomplished in about two weeks after commencement of the appeal. The resulting order fairly balances the interests at stake and is well within a range of reasonable results. The process invoked by the tenant in response – more procedurally rigorous – and much more expensive – has led to an adverse costs award against the appellants of $4,000 by order of George J.A. (for proceedings taken in the Court of Appeal in relation to the order of O’Brien J.), and a further adverse costs order from this court set out below ($5,000). From the tenant’s perspective, they now face an additional obligation of $9,000, which will not be applied against outstanding arrears. From the landlord’s perspective, it is “down” another $9,000 that it believes it is unlikely to recover. Incurring these costs over the issues raised on this review motion serves to highlight the practicality and efficacy of the case management process followed in this case.

[28] This summary is set out in non-technical, plain language, in the hopes that it will be accessible and comprehensible to the many self-represented landlords and tenants who come before this court. What now follows is the legal analysis explaining this summary in more detail.

Legal Analysis

(a) Rent Disputes and the Obligation to Pay Rent

[29] In this section, I provide an overview of pertinent aspects of the Residential Tenancies Act and rent cases before the LTB. I then set out the processes followed in this court in such cases, and the applicable principles. I then consider this case in light of the test that applies for lifting interim stays in residential landlord and tenant cases. I then examine the process to be followed in motions to review a case management judge’s exercise of discretion to impose payment terms. Finally, I address enforcement of the case management judge’s order and explain why this court enforced it forthwith, rather than directing further process for enforcement.

Rent Disputes in Residential Tenancies

[30] A panel of this court has recently summarized the scheme for adjudication of residential tenancy rent disputes, in Parousis v. Centurion Property Associates Ltd., 2025 ONSC 6864:

The Residential Tenancies Act, SO 2006, c. 17 (the “RTA” or the “Act”) confers exclusive original jurisdiction on the LTB to adjudicate residential tenancy disputes, including disputes about rent. Among other things, the Act recognizes two distinct yet related sets of issues: (i) arrears of rent; and (ii) persistent late payment of rent. Both may arise from the same fact situation. Both may be pursued by a landlord, and it is for the LTB to decide how it will process the issues before it – whether (i) in two proceedings, with two sets of potential remedies – or (ii) in one proceeding with remedies encompassing the entire course of conduct. (Para. 4)

The statutory scheme is clear and unambiguous on this point: “rent” means the entire amount of rent that is due each month. (Para. 8a)

Rent is due, in full, each month (for most residential tenancies). Tenants are not permitted to grant themselves a rent abatement and for that reason underpay their rent. In the absence of an order from the LTB granting a rent abatement, failure to pay rent as it falls due is “non-payment” of rent to the extent of the shortfall. (Para. 8b)

In effect, the LTB found the [RTA] requires payment of rent, in full, on the date rent is payable, and any shortfall in a payment constitutes “late payment” of rent for the purposes of s. 58(1) of the Act. I see no error of law in this finding. (Para. 13)

Tataw [v. Minto Developments, 2023 ONSC 4238] answers Ms Parousis’ concerns about procedural unfairness. It is not unfair that a tenant be ordered, prospectively, to pay their rent in full and on time pending final disposition of arrears and abatement issues. It is open to the LTB to make such an order in a separate proceeding, rather than within the arrears / abatement proceedings. I see no unfairness in the procedural choices made by the LTB in this regard. Further and in any event, if both sets of issues were in one proceeding, rather than two, this would not be a basis to defer an order arising from persistent late payment until final adjudication of the arrears / abatement issues. To the contrary, it is consistent with the Act that the LTB deal with persistent late payment allegations promptly to respond to tenants purporting to self-abate their rent – something tenants are not entitled to do under the Act. (Para. 26)

[31] This court has been clear that a tenant’s claimed rent abatement is not a sufficient basis for the tenant to abate the rent. Unless and until the LTB grants a tenant’s abatement claim, the full rent is to be paid, on time:

At the hearing of these motions, Ms. Atkinson confirmed that she has not paid the outstanding rent, but said that she was withholding rent because of outstanding repairs to the back door of the apartment. However, Ms. Atkinson did not obtain an order from the Board requiring Mr. Lysak to make these repairs or an order abating her rent.

In the absence of an order from the Board, Ms. Atkinson is required to pay the outstanding rent and her ongoing rent. (Lysak v. Atkinson, 2020 ONSC 1076, paras. 30-31)

[32] Once the LTB has decided a rent dispute, an appeal from the LTB decision is available to this court, but only in respect to questions of law: RTA, s. 210(1).

[33] To summarize:

a. the LTB has exclusive original jurisdiction over residential rent disputes within its monetary jurisdiction;

b. tenants are obliged to continue to pay rent pending adjudication by the LTB;

c. where tenants are not paying rent, the LTB may order them, prospectively, to pay their rent as it falls due, even if there are outstanding LTB proceedings respecting a landlord’s claim for arrears and/or a tenant’s claim for rent abatement;

d. it is for the LTB to decide what the monthly rent is and has been, the payments that have (or have not) been made on account of rent, and a tenant’s abatement claims;

e. appeals may be brought to the Divisional Court from decisions of the LTB, but only in respect to questions of law.

[34] Rule 63.01(3) of the Rules of Civil Procedure provides:

The delivery of a notice of appeal from an… order made under the Residential Tenancies Act, 2006 stays, until disposition of the appeal, any provision of the order,

(a) declaring a tenancy agreement terminated or evicting a person….

[35] The CJA, s. 134(2), provides that this court “may make any interim order that is considered just to prevent prejudice to a party pending the appeal.” See Cambridge Place Apartments Ltd. v. Mugeni, 2013 ONSC 5844 (Div. Ct.). Rule 63.01(5) provides:

A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided in subrule (1), (3) or (4) does not apply.

[36] There has been a history of some tenants using this court’s appeal process to obtain lengthy periods of rent-free living at the expense of their landlords. See, for example, Princess Apartments v. Pohvalynsky, (unreported April 20, 2006)(Div. Ct.); Carini v. Gartner, 2007 6912 (Ont. Div. Ct.); Sivakova v. Timbercreek Asset Management Inc., 2016 ONSC 281 (Div. Ct.); Florsham v. Mason, 2016 ONSC 254 (Div. Ct.); Abdul-Haqq v. Choi, 2013 ONSC 7863; Hausler v. Zayat, 2016 ONSC 3370 (Div. Ct.); Galaxy Real Estate Core Ontario LP v. Kirpichova, 2023 ONSC 593 (Div. Ct.); Mahdieh v. Chen, 2019 ONSC 4218; Mahdieh v. Joo, 2020 7771; Mahdieh v. Kim, 2023 ONSC 825; Mahdieh v. Ng, 2025 ONSC 249; 2025 ONSC 551.

[37] In some cases (for example, Florsham and Mahdieh), it seemed apparent that the tenant entered into the tenancies intending not to pay rent and then dragging on processes before the LTB and this court as long as possible. In others, no such inference could be drawn (the tenant had paid rent for years before disputes arose), but at some point, the tenant stopped paying rent. The prospect of a money judgment at the end of an appeal holds little comfort for a landlord in either of these situations: tenants who behave this way may well be judgment-proof, and in any event, the costs involved in pursuing (at best) uncertain enforcement may well preclude a sensible decision to pursue enforcement: in many residential tenancy disputes, the amounts in issue, while material to the parties, are small compared to the costs of litigation or enforcement measures.

[38] It is for the LTB to manage its docket to minimize the risk of abuse of process to obtain periods of rent-free living. It must do this while still affording both sides procedural fairness to establish their cases before the Board.

[39] It is for this court to manage its processes to minimize the risk that appeal proceedings are used to obtain periods of rent-free living. The task for this court is simpler than is the task of the LTB since, by the time the matter reaches this court, there are factual findings from the LTB as to the quantum of monthly rent and arrears, findings that are not subject to appeal.[^1]

[40] It is in this context that this court developed its current process for addressing payment of rent and arrears pending an LTB appeal in this court. The process is now described in the Consolidated Practice Direction for Divisional Court Proceedings, which may be found here:

Consolidated Practice Direction for Divisional Court Proceedings – Ontario Superior Court of Justice

[41] Section H of the Practice Direction addresses landlord and tenant matters, para. 84 of which states:

The court may give case management directions requiring payment of ongoing rent and payment of or on account of arrears, in default of which the court may lift the stay.

[42] Part G of the Practice Direction describes triage and case management in Divisional Court, paragraphs 89 to 93 of which state:

All proceedings and motions in Divisional Court may be subject to judicial case management. The purpose of case management is to facilitate access to justice through timely adjudication in a cost-effective and proportional manner.

All proceedings and motions in Divisional Court may be subject to judicial triage at their commencement. The triaging judge may give directions on matters such as (a) jurisdiction, (b) timeliness, (c) prematurity, (d) identification of proper parties, and (e) any other issue that, in the opinion of the judge, ought to be addressed with the parties. Triaging does not preclude a party from raising preliminary issues with the court.

A triaging judge may require a case management conference at which he or she will preside. Court staff will schedule the case management conference. The triage judge is not seized of case management unless the triage judge directs.

A triage or case management judge may give directions regarding the conduct of a matter and those directions are orders of the court.

[43] The usual process to establish interim payment terms is straightforward. During the triage process, the court asks the appellant to confirm the findings of the LTB as to quantum of monthly rent and arrears and requires the appellant to state the basis of any objection to these determinations. Where (as is often the case) the appellant does not contest the LTB’s findings as to monthly rent and quantum of arrears, the court then uses these amounts in determining appropriate interim payment terms. Where (as is sometimes the case) an appellant challenges the LTB’s findings respecting rent and arrears, then the court inquires further based on the challenges that have been raised. For example,

(a) Where a tenant challenges the amounts found by the LTB, the court will usually require the tenant to explain what the correct amounts should be and by what means those amounts are calculated;

(b) Where a tenant challenges the entire proceeding below (for example, on procedural fairness grounds), the court will usually require the tenant to explain why disputed rent should not be paid pending the appeal;

(c) Where a tenant argues that rent ought to have been abated, the court will usually require the tenant to explain (a) why rent should be abated pending an appeal when, to that point, the tenant has not had a legal basis on which to abate the rent; and (b) why some portion of the disputed rent and arrears ought not be paid pending appeal;

(d) Where a tenant argues that there are fundamental flaws in the LTB process such that a fresh hearing should be ordered before the LTB, the court usually reminds the tenant that rent must still be paid pending such a process and requires the tenant to provide their position on the state of rent accounts, with the default position (in the absence of payment evidence to the contrary) on the basis of the findings of the LTB.

In most cases, there is no principled basis upon which a tenant should expect to pay less than the full amount of the monthly rent, as it falls due, in accordance with the unappealable factual findings of the LTB.

[44] As stated above, this court’s practice in these matters has been consistent. As stated in Galaxy Real Estate v. Kirpichova, 2023 ONSC 593, para. 12:

The tenant raises an issue about the impugned order being made by a case management judge, at a case management conference, where formal motion materials have not been delivered and there is no evidence under oath. The process followed in this case was consistent with the court’s practice, reflected in the terms of the Notice to Profession quoted above. It has been followed consistently in this court to address issues such as the ones decided by O’Brien J. (a) quickly, (b) efficiently for the parties and the court, (c) at minimal cost to the parties, and (d) following a fair process. See, for example: Gencay v. Capreit Limited Partnership, 2021 ONSC 8293 (Div. Ct.); Margulis v. E. Manson Investment Limited, 2021 ONSC 377 (Div. Ct.), 2020 ONSC 7969 (Div. Ct.); Mahdieh v. Joo, 2020 ONSC 7771 (Div. Ct.); Herchawi v. Quddus, 2020 ONSC 6822 (Div. Ct.).

[45] Considerations for lifting the statutory stay of an eviction order include an application of the test for an interlocutory order set out in the Supreme Court of Canada’s decision in RJR Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311; [see also: Lefebvre v. Lefebvre, 167 OAC (Ont. CA), at para. 6], adapted to the context of a stay of a residential eviction order:

(a) is there a serious issue to be heard in the appeal that could result in the eviction not being enforced?

(b) will the moving party suffer irreparable harm if the stay is not continued?

(c) does the balance of convenience favour lifting or continuing the stay?

[46] On the first branch of the test, the issue is focused on the eviction order. Not all arguable grounds of appeal would lead to an eviction order being set aside. For example, an appellant could establish that they were not a “tenant” and perhaps were not liable for rent, without establishing a basis to interfere with an order that the landlord be given possession of the unit (the appellant might not be liable for rent but should have no right to occupy if they are not a tenant). Or, for example, a tenant could establish that an appealable error led to overstatement of the amount owed by the tenant without establishing a basis to set aside the eviction order: if unpaid arrears turned out to be $15,000, rather than $18,000, the appeal finding would likely leave the basis of the eviction order materially unscathed. Even where an appellant established procedural unfairness requiring that the entire LTB decision be quashed, this would likely not justify non-payment of rent by the tenant: as stated above, monthly rent is to be paid as it accrues during proceedings before the LTB, and this obligation can and usually should be enforced during ongoing proceedings.

[47] On the second branch of the test, this court may accept that “harm” from an eviction will be irreparable. The automatic stay pending appeal presumes such harm, and as a matter of common experience, losing one’s home would be experienced by most people as a harm that could not reasonably be compensated after-the-fact.[^2]

[48] The “balance of convenience” weighs the prejudice to the appellant (if the stay is not continued) against the prejudice to the respondent (if the stay remains in place). Prejudice may be ameliorated or eliminated by imposing terms such as expediting an appeal and/or imposing interim payment terms, the two most frequent sets of terms imposed by the court in the context of eviction cases).

[49] All of this is assessed within the context of a tenant’s obligations under the RTA, as summarized above. Tenants are required to pay their rent monthly, as it falls due, and are not entitled to abate their rent unless the LTB has granted an order for abatement. In weighing the balance of convenience, ordering a party to do that which they are required to do by law, under their lease, and as ordered by the LTB, is not, generally, “inconvenient”.

The Motion At Bar

[50] As noted at the outset of these reasons, the LTB found that monthly rent is $1,303.36, and that arrears were $8,964.57 as of February 28, 2025. By the time the case was before Trimble J., arrears were $20,667.81. Trimble J. ordered that, as conditions for maintaining the stay of the LTB eviction order pending appeal, the tenant pay monthly rent as it fell due, plus $1,000 per month on account of arrears. If the tenant failed to meet these terms, the landlord could move, in writing, for an order lifting the stay. Trimble J. seized himself of an enforcement motion, to be heard by him in writing.

[51] The tenant moved to review the order of Trimble J. before a panel of three judges of this court and moved for a stay of the order of Trimble J. pending the review motion. By direction of Emery J., the stay motion was heard by this court.

[52] The test for a stay of the order of Trimble J. pending a panel review motion is (following the RJR Macdonald test explained above):

a. Is there a serious issue to be heard on the review motion?

b. Will the tenant suffer irreparable harm if the stay is not granted?

c. Does the balance of convenience favour granting the requested stay?

[53] I would be prepared to assume irreparable harm in this case: given his financial circumstances, Mr Lynch may be rendered homeless if he is evicted. However, I see no serious issue to be heard on the review motion, and the balance of convenience weighs overwhelmingly against granting the stay.

Merits of the Review Motion

[54] A case management judge is not required to give extensive reasons when imposing normal rent and arrears payment terms to continue a stay pending appeal. Usually, payment terms are provided by way of a case management direction sent to the parties by email, rather than by way of a formal endorsement.

[55] In this case, however, the case management judge did give extensive written reasons (24 paragraphs long). Those reasons disclose no error in principle and no palpable and overriding error of fact. In particular, the case management judge made the following substantially correct statements of principle (at paras. 13-15):

Under [CJA] s. 134(2), the stay of eviction pending an [a]ppeal is subject to the overriding concern that a stay is not to be used to “game the system” by providing the tenant with rent-free accommodation between the date of filing a Notice of Appeal, and the hearing of the [a]ppeal. S[ubsection] 134(2) requires the court to do what is just so that no one is prejudiced by the appeal process. See, for example, Pornas v. Swadi, 2024 ONSC 7021; Regan v. Latimer, 2016 ONSC 4132 (Div. Ct.) at para. 25; Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34; Haye v. Siddiqui, 2024 ONSC 6214, para. 30.

Paying rent is a fundamental part of the landlord and tenant relationship. A statutory stay does not allow a tenant to withhold from paying rent while an appeal proceeds. See: Hunt v. Trevisan, 2025 ONSC 487. Not paying rent is an abuse of process. There is no statutory, regulatory or common law provision that relieves a tenant from the obligation to pay rent. See, for example: Sivakova v. Timbercreek asset Management, 2016 ONSC 281, at para. 4 and Schwartz v. Fuss, 2021 ONSC 1159, at para. 14.

The stay pending appeal from an eviction order of the Board is an important protection for tenants as it allows them to bring their appeals to court while preserving their tenancies. See Rule 63.01(3)(a). The stay is meant to preserve the court’s ability to do justice to both sides at the conclusion of an appeal. The stay is not meant to allow the [t]enant to live rent-free pending appeal. See: Jayaraj v. Metcap Living Management inc., 2021 ONSC 1199 (Div. Ct.) at para. 27; Mubarek v. Toronto Community Housing, 2022 ONSC 382 (Div. Ct.) at para. 25; Martel v. Purdy, 2023 ONSC 1806 (Div. Ct.) at para. 13.

[56] Mr Lynch told the case management judge that he could not afford to pay rent as it fell due, let alone make meaningful payments towards arrears pending appeal. On this motion, Mr Lynch argues that the case management judge erred in failing to take his impecuniosity into account.

[57] The case management judge made no such error. A tenant’s particular financial circumstances may be taken into account in fashioning payment terms, so long as those terms reasonably protect the landlord’s legitimate interests. Those legitimate interests include (a) payment of rent, on time, each month, as it falls due; and (b) payment towards arrears sufficient to satisfy the court that the tenant, in good faith, will seek to remedy their payment default to preserve the tenancy at the conclusion of the appeal.

[58] Where a tenant has paid no rent for an extended period, interim payment terms would normally include an immediate meaningful payment on account of arrears. If the tenant has not retained funds on account of their rent obligations during the period of non-payment, this may justify an inference that (a) the tenant is not acting in good faith; and/or (b) the tenant has not been in a financial position to pay his monthly rent, as it fell due, for an extended period of time. The former inference may justify immediate termination of the stay of the eviction order on the basis that the tenant is abusing the appeal process to live rent-free to the prejudice of the landlord. The latter inference may justify a conclusion that this is a failed tenancy where a tenant is unable to meet their obligations, whatever their motives may be.

[59] In this case, the tenant failed to pay any rent for many months, owed about eighteen months of arrears, and was taking the position that he could not afford to pay the rent or anything towards arrears. On these facts, it is arguable that the case management judge should have lifted the stay of the eviction order immediately.

[60] That said, considerable deference is owed to a case management judge’s exercise of discretion.

On a review motion pursuant to s. 21(5) of the Courts of Justice Act, the panel will not intervene to vary or set aside the order of a single judge absent an error of law or a palpable and overriding error of fact (Marsden v. Ontario (Chief Coroner), 2012 ONSC 6118; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518 (Div. Ct.), para. 7). Where the motion judge exercises discretion, a review panel will not interfere unless the moving party demonstrates that the decision is so clearly wrong that it amounts to an injustice or the motion judge gave no or insufficient weight to relevant considerations (Franchetti v. Huggins, 2022 ONCA 111, para. 5). [Rosen v. Reed, 2024 ONSC 6, 2024 ONSC, para. 6; Galaxy Real Estate v. Kirpichova, 2023 ONSC 593]

[61] A review motion is not a “second kick at the can” before a panel of three judges. As noted in Galaxy Real Estate v. Kirpichova, 2023 ONSC 593, para. 15:

During oral argument, the tenant argued that the terms ordered by O’Brien J. are too onerous and we should order less onerous terms, such as a monthly payment of $1,800 pending appeal. It is not our task to conduct a de novo hearing on appropriate terms for maintaining the stay pending appeal. As stated by Sachs J. in a different context:

We are being asked to set aside a discretionary decision of a single Divisional Court judge. We owe that decision considerable deference and it is important that we do not encourage the use of s.21(5) of the Courts of Justice Act, as an opportunity to get a “second kick at the can” in front of three, as opposed to one, Divisional Court judge. The strain on the already limited resources of our court that this causes is obvious. (Kastner v. Health Professions Appeal and Review Board, 2022 ONSC 5553, para. 54.

[62] In the instant case, Mr Lynch had previously accrued substantial arrears and then had paid them off to preserve the tenancy. In this context, even given the compelling basis for terminating the tenancy without further delay, it was within the case management judge’s discretion to give the tenant a chance to meet reasonable payment terms pending appeal. The case management judge devised practical and swift recourse for the landlord if the tenant failed to meet the stipulated payment terms, and he properly seized himself of the expedited enforcement process.

[63] In his motion materials, Mr Lynch argued that there was an “illegality” in a 2024 LTB order in prior proceedings (failure to take account of a rent deposit), that somehow tainted the current proceedings. The time for Mr Lynch to contest the LTB’s prior order had long since passed, and he may not mount a collateral attack upon that prior order in this appeal. Mr Lynch further argues the case management judge showed bias by asking him “Why do you think you should live rent-free?” after refusing to take account of the prior LTB proceedings. This does not show bias. To the contrary, the question, pointed as it may have been, gave Mr Lynch an opportunity to address the crucial issue for the case management judge when setting interim payment terms. Mr Lynch argues that correspondence from landlord’s counsel, stating that the statutory stay is “not to enable a tenant… to live rent-free for a long time” suggests some sort of nefarious collusion between counsel and the court. That argument is without merit. It is to be expected, and indeed encouraged, that counsel and the court will use some statement of the test used in this court on motions to impose interim payment terms. Counsel explained the applicable principle to Mr Lynch, and the case management judge put that principle to Mr Lynch and gave him a chance to explain why the appliable principle should not apply in this case.

[64] Finally, on the merits, if Mr Lynch’s position had been that the current LTB order contained a miscalculation because it did not take account of a rent deposit, that would not have justified Mr Lynch’s failure to pay any rent at all, for an extended period, leading to rent arrears of more than $20,000 by the time of the case management conference.

[65] Mr Lynch’s broader position only comes into focus in paragraph 36 of his affidavit. Earlier, he develops his argument that a prior LTB proceeding calculated his arrears incorrectly because it failed to include a rent deposit that was held by the landlord. In paragraph 36 of his affidavit, he takes the position that the entire amount he paid pursuant to the LTB’s prior order (said to have been $18,458.90) were “unjustly gained funds” in the hands of the landlord. In short, Mr Lynch’s defence of the current LTB order was that a prior order was entirely wrong and ought not be respected. The prior LTB proceedings were concluded, and Mr Lynch paid the balance, as found owing by the LTB, in 2024. He did not appeal the LTB’s 2024 decision. That decision is final and binding on Mr Lynch, and it was an abuse of process to contest it in defence of the current proceedings. The case management judge quite properly gave no weight to this aspect of Mr Lynch’s argument.

[66] I see no serious issue to be heard that payment terms ought not to have been imposed at all, that the terms imposed were unreasonable, or that the means of enforcement was unfair. I see no serious issue to be decided on the review motion.

Balance of Convenience

[67] The balance of convenience analysis mirrors that applied by the case management judge. As already explained, it would be neither just nor convenient to permit Mr Lynch to remain in possession of the landlord’s premises without paying rent and without making meaningful payments on account of the substantial arrears pending his appeal.

[68] Mr Lynch argues that the prejudice to him – in respect to loss of his home and in respect to being able to pursue his appeal rights – militates against payment terms that he cannot meet. I do not accept these arguments in the circumstances of this case. There is no legitimate theory of the appeal that would not require Mr Lynch to pay rent as it falls due and to pay the landlord very substantial arrears. Mr Lynch has no legitimate right to remain in the premises if he is unable or unwilling to pay rent as it falls due: the landlord is not obliged to provide Mr Lynch with a free place to live. Mr Lynch may continue with his appeal, if he wishes to do so, in respect to any issues other than enforcement of the LTB eviction order.

Conclusion on the Stay Motion

[69] I see no serious issue to be heard in respect to the review motion that could lead to reinstatement of the stay of the LTB eviction order pending the appeal. The balance of convenience weighs heavily in favour of refusing a stay pending the review motion. For these reasons I would dismiss the motion for a stay pending the review motion.

Review Motions pursuant to CJA, s. 21(5)

[70] Section 21(5) of the CJA provides:

A panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion.

[71] An order of a case management judge is usually considered to be a decision of a motion judge, rather than a final disposition of the matter by the Divisional Court and so may be the subject of a review motion before a panel of three judges of the Divisional Court: see, for example: Ellenor v. Chernysh, 2026 ONCA 10.[^3]

[72] Where a review motion is brought from an interlocutory order (as is the case here), neither the impugned order nor the underlying Divisional Court proceeding are stayed pending the review motion. In many cases, the review motion may be scheduled to be heard at the same time as the underlying proceeding. In LTB appeals, however, a review motion will often not be scheduled until after the main appeal can be heard (since the review motion is heard by a panel and the main appeal is usually heard by a single judge pursuant to directions pursuant to CJA, s. 21(2)(c)).

[73] Case management of a s. 21(5) review motion is conducted within this context. The impugned order is presumed correct and in force pending the review motion, and it would be antithetical to the timely disposition of Divisional Court proceedings to “down tools” in the underlying appeal every time someone brings a review motion. In a situation where a case management judge has imposed interim payment terms pending appeal, interfering with that exercise of discretion pending a review motion would have the practical effect of reversing the impugned order in many cases. Staying the appeal until a panel review of interim payment terms would be counterproductive – prolonging the appeal process and driving up the costs for the parties – and increasing the prejudice of continued non-payment of rent.

[74] In this matter, case management directions in the s. 21(5) motion effectively stayed the order of Trimble J. until we decided the stay motion. That is not how the s. 21(5) case management judge framed his order: he expressly declined to order an interim stay, but he precluded the landlord from pursuing enforcement proceedings in accordance with the order of Trimble J., and then directed that he would schedule the enforcement proceedings after this court decided the stay issue (unless we dealt with the enforcement issues). This had the effect of granting the tenant yet another two months of rent-free living, at the expense of the landlord, at minimum. This process was not in keeping with general practice in these matters in the Divisional Court. Further, in imposing these terms, the case management judge apparently did not put his mind to interim terms to be met by Mr Lynch pending the stay motion before us (such as some payment towards rent).

[75] This case may be contrasted with the process followed in Kirpichova, quoted above at para. 28. In Kirpichova:

The appeal was commenced November 22, 2022.

Triage was conducted by a judge on November 24, 2022, and a case conference was directed to consider interim payment terms (among other things).

On November 25, 2022, the parties were given notice of the case management teleconference, to be held December 6, 2022.

At the case management teleconference, on December 6, 2022, the case conference judge imposed interim payment terms, including payment of ongoing rent and substantial payments towards arrears.

The tenants brought a review motion. In case management of the review motion, the tenants were required to comply with the case management order pending the review motion (or face immediate eviction), and the hearing of the review motion was expedited and heard by a panel on January 28, 2023.

Payment terms were ordered about two weeks after the appeal was started. Those terms were never stayed. The review motion was heard and disposed of less than two months after the impugned payment terms (including the Christmas holidays).

[76] Contrast that with the process in this matter:

The appeal was commenced August 27, 2025

Triage was conducted by a judge on September 23, 2025, and a case conference was directed to consider interim payment terms (among other things).

At the case management teleconference, on November 19, 2025, the case conference judge imposed interim payment terms, including payment of ongoing rent and substantial payments towards arrears.

The tenants brought a review motion. In case management of the review motion, the tenants were not required to comply with the case management order pending the review motion (or face immediate eviction). Rather, enforcement of the payment terms was suspended, and a stay motion was scheduled before a panel, in writing, on February 27, 2026. The review motion was scheduled to be heard by a panel in September 2026.

On February 27, 2026, this panel brought this part of the process to an end. The review motion itself is still outstanding.[^4]

In this case, it took about 12 weeks after the appeal was commenced to order interim payment terms. Enforcement of those terms was effectively stayed during case management of the s. 21(5) motion. This effective stay was not lifted until the decision of this panel on February 27, 2026. In the result, the tenant obtained six months of rent-free living, to the prejudice of the landlord, because of the appeal process in Divisional Court. And both the appeal and the review motion remain outstanding. With respect, the court must be more vigilant to guard against the court’s process being abused to the prejudice of one of the parties, as has happened here.

[77] Kirpichova is a case where everything moved as quickly as is reasonably possible in this court. It is not a standard that can be achieved in all cases. But it is a standard to aspire to.

[78] Stays of interim payment terms usually should not be granted pending the hearing of the review motion – doing so is, in effect, one judge countermanding the order of another judge. There is a discretion to do so, but one that should, obviously, be exercised sparingly. Again, in most cases, it would likely be appropriate to at least require payment of ongoing rent pending the review motion. Stay motions pending a review motion should not be referred to a Divisional Court panel: that would be wasteful of scarce judicial resources: the appeal itself should be expedited, and/or the review motion itself ought to be placed before a panel on an expedited basis.

Further Process After This Stay Motion Was Scheduled

[79] The Respondent was directed to deliver its responding materials for this stay motion by January 9, 2026. They served their materials 33 minutes late (at 4:33 pm) and Mr Lynch would not consent to late filing. A further appearance before Emery J. was required, at which time Emery J. ordered that the late-filed materials could be filed.

[80] Mr Lynch then brought another motion on January 23, 2026, and requested an urgent case conference, which was held by Emery J. on January 23^rd. In it, Mr Lynch sought various heads of relief, many of which were directed placed before this panel by direction of Emery J.

[81] Among other things, Mr Lynch raised issues of maintenance issues and an application he commenced before the LTB in 2026 for rent abatement as a consequence of these issues. As noted above, a claim to rent abatement is not a defence to findings of non-payment of rent unless and until the LTB has ordered an abatement. Further, this late-breaking assertion of a basis for rent-abatement – whatever its merit may be – is obviously not to be taken into account on a review of the decision of Trimble J. – since that issue was not before him.

[82] The January 23^rd motion is dismissed. It is an obvious abuse of process designed to delay and occlude this stay motion. It is a continuation of Mr Lynch’s pattern of trying to game the system, as long as possible, to remain in the landlord’s premises without paying anything on account of rent or arrears.

Enforcing the Interim Payment Terms Ordered by Trimble J.

[83] Trimble J. ordered as follows:

If Mr Lynch fails to make any payment as ordered, or to honour any other term of this Endorsement, the Landlord may request a lifting of the Stay of Execution of the LTB’s order by serving and filing an Affidavit outlining the default in compliance with this Endorsement. Mr Lynch may serve and file a responding Affidavit by 4 pm on the 2^nd day after being served with the Landlord’s Affidavit. I will decide the issue of lifting the Stay based on the Affidavits, without oral submissions.

[84] The landlord complied with the process directed by Trimble J. and provided evidence that the tenant did not make the directed payments on account of rent and arrears. The tenant’s response to the motion is premised on his view that Trimble J.’s order is wrong and ought not be enforced. He acknowledged that he had not made any payments since the case conference before Trimble J.

[85] This court enforced the interim payment terms of Trimble J. rather than seeing further process unfold below. This issue – straightforward in the circumstances of this case – had already taken far too long and consumed far too much judicial time and court resources – and enforcement of the interim payment terms here are inevitable. As of the date of hearing of this stay motion in writing, February 27, 2026, Mr Lynch had not paid anything on account of rent for about two years. He is in breach of the payment terms, and the landlord continues to be prejudiced. This court ordered immediate enforcement of Trimble J.’s order and lifted the stay of the LTB eviction order, effective February 27, 2026, with a direction to the Court Enforcement Office to give the landlord immediate possession of the leased premises and asked that this be done “as soon as reasonably practicable”.[^5] No further time, effort, or delay should have been permitted.

Further Recourse

[86] In this court’s experience, some tenants will try to pursue their goal of further rent-free living by pursuing appeal proceedings from this court’s decision on a review motion or a stay motion pending review. Where this recourse is from a decision of a panel of three judges of this court, the only recourse is to the Court of Appeal, with leave from that court. There is no automatic stay pending a motion for leave to appeal: the Court of Appeal could, on motion, grant such a stay, but unless and until a stay is granted by the Court of Appeal, there is no stay and the eviction may proceed. This court will often so advise the parties, so that there is no uncertainty, for them, as to how matters stand. This court did this in its endorsement on February 27, 2026 (2026 ONSC 1222).

Reasons in Section 21(5) Review Motions and Related Proceedings

[87] I noted, above, that Trimble J. did not need to give the extensive reasons he did for imposing the interim payment terms. He made no error in doing so – the nature of the reasons provided is a matter of discretion, so long as the reasons are sufficient in light of the applicable law and the circumstances of the case. Similar principles apply to reasons for denying a stay pending a review motion, or on a review motion itself. The endorsement this court released on February 27, 2026 would ordinarily be sufficient to dispose of the stay motion. Lengthy reasons are not usually required. On a review motion, short, focused reasons may often also be sufficient: see, for example, Royal Bank of Canada v. Suretrust Sustems Inc., 2026 ONCA 247. This court has provided these extended reasons because of concerns that arise about the process and consequent delays that was followed in this case: what happened in this case should not happen in future cases.

“D.L. Corbett J.”

I agree: “O’Brien J.”

I agree: “Shore J.”

Released: June 1, 2026

[^1]: An application for judicial review may be brought to challenge factual findings by the LTB, but there is no automatic statutory stay pending the hearing of that application: the eviction order would remain enforceable unless and until the tenant obtained a stay on motion to this court.

[^2]: Often, eviction may be “irreparable harm”, but not always: see Rosen v. Reed, 2024 ONSC 5224, paras. 22-24.

[^3]: One exception to this principle is an order of a case management judge pursuant to r. 2.1 – an exception that does not arise in this case.

[^4]: The appeal should be heard and decided on the merits before the review motion can be heard, and so it will likely be moot. In our view, the mootness issue can be addressed by the judge hearing the appeal on the merits.

[^5]: This is the standard language for an order expediting enforcement: the court “asks” for swift enforcement and leaves it to the Court Enforcement Office to prioritize the enforcement direction in light of the other demands on that Office’s services.