Joseph v. Savannah Groceteria, 2026 ONSC 2762

CITATION: Joseph v. Savannah Groceteria, 2026 ONSC 2762

DIVISIONAL COURT FILE NO.: DC-25-3119 DATE: 2026/05/11

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

INGRID WINDSOR JOSEPH

Appellant

– and –

SAVANNAH GROCETERIA CO. LTD.

Respondent

Ingrid Windsor Joseph, Self-Represented Appellant

John W. Dickie, for the Respondent

HEARD at Ottawa by Zoom: April 28, 2026

Labrosse J.

ENDORSEMENT

Introduction

1The respondent landlord, Savannah Groceteria moves for an order quashing the appeal of an order of the Landlord and Tenant Board (LTB) dated September 17, 2025 and for lifting the stay of the LTB order.

2The grounds of the motion are that the appeal is from an order of the LTB, which was made with the consent of the parties and that leave has not been obtained for this appeal. Further an appeal of a decision of the LTB to the Divisional Court may only be brought on a question of law and the grounds of this appeal are questions of fact, or questions of mixed fact and law, but not questions of law. Finally, an appeal of the LTB must be brought within 30 days after the party or their representative has been given the order whereas this appeal was not filed within that 30 day appeal period.

3I 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.

4In 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.

5In 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.

6For 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.

Factual Background

7The appellant has been a tenant at unit 3, 47 Cameron Ave. in Ottawa since July 2018.

8In June 2025, the landlord applied to the LTB for an order for the payment of rent and for termination of the tenancy. In July 2025, Damian Cordaie, a licensed paralegal, filed a notice with the LTB stating that he was representing the appellant.

9During this time, there was an ongoing complaint by Ms. Joseph against the respondent with the Human Rights Tribunal of Ontario. There had been a mediation session in November 2024, but no settlement was reached.

10The LTB hearing was scheduled to proceed on September 8, 2025, and appears to have proceeded by videoconference. Ms. Joseph was present with Mr. Cordaie but alleges that he was not authorized to speak on her behalf.

11The LTB order dated September 17, 2025 states that the application was heard by videoconference on September 8, 2025. It further states that the respondent was present with his lawyer and that “Damian Cordaie and the Tenant, Ingrid Windsor Joseph were in attendance.” The LTB order goes on to state that at the hearing, all parties elected to participate in the Board’s mediation process with the assistance of a dispute resolution officer.

12The respondent’s affidavit indicates that the respondent was present with its lawyer, Mr. Dickie and that Ms. Joseph was present speaking for herself and her son and she was also represented by Mr. Cordaie.

13The issues were resolved at mediation. The parties agreed that the tenancy was terminated and that the appellant would move out on or before December 31, 2025. The respondent agreed to waive the rent for October 2025 and November 2025 and also to waive the arrears of rent for the period ending September 30, 2025. If the respondent were to receive an automatic direct payment from ODSP for rent on behalf of the tenants, the respondent was to return that rent money directly to the appellant within 48 hours of receiving it.

14Finally, the parties further agreed that the appellant was to withdraw the Human Rights Tribunal of Ontario application within five days of the date of the LTB order.

15On September 29, 2025, ODSP paid rent directly to the respondent and immediately thereafter the respondent paid that money to Ms. Joseph as agreed in the settlement.

16On October 31, 2025, ODSP again paid rent directly to the respondent and it was transferred to Ms. Joseph as agreed.

17On November 19, 2025, Ms. Joseph submitted a request for review and a request to extend the deadline for review of the September 17, 2025 LTB order. By letter dated December 19, 2025, the LTB advised that the request to extend the period to request a review was denied.

18On December 29, 2025, the appellant filed a Notice of Appeal to the Divisional Court asking that the LTB’s eviction order dated December 19, 2025, and the consent order of September 17, 2025 to be set aside.

19On January 2, 2026, upon receipt of the Notice of Appeal, the Divisional Court Registrar issued a stay of the LTB orders.

20On February 10, 2026, a case management conference was held, and the appellant was ordered to pay rent since the date of filing the Notice of Appeal and a timeline was set for the perfection of the appeal.

21On 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.

22The 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.

Applicable Law

23An appeal lies from the Landlord and Tenant Board pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 only on a question of law. The applicable appeal period is 30 days after being given the order.

24Section 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.

25The 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.

26In 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.

27A decision of the LTB denying a review request where no explanation of the delay is provided is a decision made on a question of fact, and as such, it is not subject to the appeal provisions in the Residential Tenancies Act, which requires that an appeal can only proceed on a question of law: see Drummond v. Ridgeford Charitable Foundation, 2024 ONSC 4658, para. 42-43.

Analysis

28I begin the analysis by making a number of findings based on the evidence before the court.

29The 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.

30The 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.

31On 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.

32The 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.

33In 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.

34The 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.

35There are three issues that are before the court as part of this motion to quash.

36Firstly, 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.

37Secondly, 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.

38Thirdly, 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.

Conclusion

39For the reasons set out herein, appeal is quashed and the stay of the LTB order dated September 17, 2025 and any stay relating to the LTB letter dated December 19, 2025 which forms part of LTB file LTB-L-049847-25 is lifted.

40The respondent has requested that it should be entitled to seek an immediate eviction from the Sheriff as a result of the delay caused by the appeal. However, the appellant has paid rent for at least three months during the appeal and the prejudice to the respondent has been less than in other cases. I am of the view that the enforcement by the Sheriff should follow the normal course and the timing of the eviction shall be part of the Sheriff’s normal procedures.

Costs

41At the hearing of the motion to quash, I was under the belief that both parties had provided written submission on costs. That was incorrect. The respondent provided a Bill of Costs and the appellant provided a document titled “Reply to Respondent’s Bill of Costs and Draft Order.” The respondent has not actually provided written submissions on costs.

42As a preliminary remark, the respondent is seeking costs of over $16,000 on a partial indemnity basis. This amount of costs is higher than the costs normally awarded for Divisional Court matters. I am prepared to determine what a fair and reasonable amount would be based on the Bill of Costs and the appellant’s response. However, should the respondent wish to make written submissions on costs, it will have an opportunity to do so within 15 days of this Endorsement and the appellant may respond within 15 days thereafter. Any written costs submission shall be limited to three pages plus attachments.

___________________________ Justice M. Labrosse

Released: May 11, 2026

CITATION: Joseph v. Savannah Groceteria, 2026 ONSC 2762

DIVISIONAL COURT FILE NO.: DC-25-3119 DATE: 2026/05/11