Court of Appeal for Ontario

Date: 2025-07-08
Docket: COA-25-OM-0155
Coram: S. Coroza, L. Madsen, M. Rahman

Between

Amstar Pool ILP
Respondent (Plaintiff)

and

David Tweneboa-Kodua
Appellant (Defendant)

David Tweneboa-Kodua, acting in person
Kristin Ley, for the respondent

Heard: In writing

Determination pursuant to r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to the appeal from the order of Justice Sharon Shore of the Divisional Court dated February 21, 2025.

Reasons for Decision

[1] The landlord, Amstar Pool ILP, applied to the Landlord and Tenant Board (LTB) for an order terminating the tenancy and evicting Mr. Tweneboa-Kodua due to non-payment of rent. The LTB granted the application on July 9, 2024.

[2] Mr. Tweneboa-Kodua subsequently filed a motion to set aside the eviction order. On September 11, 2024, the LTB dismissed that motion. He then commenced an appeal in the Divisional Court, which triggered an automatic stay of the eviction order.

[3] The landlord brought a motion before Shore J. of the Divisional Court to lift the automatic stay. On February 21, 2025, Shore J. granted the motion, citing Mr. Tweneboa-Kodua’s continued failure to pay rent during the appeal process.

[4] Despite the pending appeal on the merits – scheduled to be heard on July 14, 2025 – Mr. Tweneboa-Kodua sought leave to appeal Shore J.’s decision to this court on May 22, 2025.

[5] On May 26, 2025, the landlord requested that the motion for leave to appeal be dismissed under r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the Court of Appeal lacks jurisdiction.

[6] We agree with the landlord’s position. Section 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the appropriate avenue to challenge a decision of a single judge of the Divisional Court is by way of a motion to set aside or vary that decision before a panel of the Divisional Court. See, for example, Bernard Property Maintenance v. Taylor, 2019 ONCA 830, paras. 2-3.

[7] Moreover, Shore J.’s order did not finally determine the tenant’s appeal on the merits. In paragraph 16 of her decision, Shore J. expressly stated that Mr. Tweneboa-Kodua “is entitled to continue their appeals even if the eviction is carried out.” As such, the appeal remains active and has not been finally resolved.

[8] Given the clear lack of jurisdiction, the motion for leave to appeal is frivolous and constitutes an abuse of process: Ncube v. Hassen, 2022 ONCA 840, para. 15; Chowdhury v. Unity Health Toronto, 2025 ONCA 90, para. 4.

[9] Accordingly, the motion for leave to appeal is dismissed. No order is made as to costs.

“ S. Coroza J.A. ”
“ L. Madsen J.A. ”
“ M. Rahman J.A. ”