CITATION: Oz v. Shearer, 2023 ONSC 5738

OSHAWA DIVISIONAL COURT FILE NOS.: DC-23-1414

DATE: 2023-10-12

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Eran Oz and Jennifer Oz, Landlords (Respondents)

AND:

Charles Ross Shearer and Jenna Shearer, Tenants (Appellants/Applicants)

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Eran Oz, Self-Represented, Landlord (Respondent) Charles Ross Shearer, Self-Represented, Tenant (Appellant) Anna Solomon, Counsel for the Landlord and Tenant Board

HEARD: October 11, 2023

CASE CONFERENCE ENDORSEMENT

[1] This longstanding Landlord and Tenant Board (LTB) matter involves multiple appeals and judicial reviews. This case conference relates to the Tenant’s most recent appeal of a decision of the LTB dated August 22, 2023, dismissing the Tenant’s motion for a voiding order.

Procedural History

[2] The Tenant, Charles Ross Shearer, initially appealed from the decision of the LTB dated January 4, 2023. In that decision, the LTB found that the Tenant had not paid rent since December 2020, and was no longer living in the subject property.

[3] In that decision the LTB found that, as of January 4, 2022, the Tenants owed the Landlords $25,678, and that this amount would increase to $27,565 as of January 31, 2023. This amount was calculated by the LTB after taking into account the abatement of rent for non-repair that the LTB considered appropriate.

[4] The LTB ordered that if the Tenants did not pay the full arrears by January 15, 2023, the Tenants could be evicted.

[5] The Tenants appealed that decision to the Divisional court pursuant to s. 210(1) of the Residential Tenancies Act, S.O. 2006, c. 17.

[6] Pursuant to s. 25 of the Statutory Powers Procedure Act, R.S.O. 1990, chap. S-22, (SPPA) unless the court orders otherwise, there is an automatic stay of the eviction order pending the appeal to the Divisional Court. Section 25 provides as follows:

Appeal operates as stay, exception

25. (1) An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.

Idem

(2) An application for judicial review under the Judicial Review Procedure Act, or the bringing of proceedings specified in subsection 2 (1) of that Act is not an appeal within the meaning of subsection (1)

[7] A similar provision expressly referencing an eviction order under the Residential Tenancies Act, 2006, is set out in Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The relevant portions of that rule provide:

Eviction Order Under Residential Tenancies Act, 2006

(3) The delivery of a notice of appeal from an interlocutory or final order made under the Residential Tenancies Act, 2006 stays, until the disposition of the appeal, any provision of the order,

(a) declaring a tenancy agreement terminated or evicting a person; or

Lifting Stay

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

[8] It is important to note that s. 25 of the SPPA is somewhat broader than Rule 63.01(3), since the latter applies only to an LTB order “declaring a tenancy agreement terminated or evicting a person”, while the former could apply to any order granted by any tribunal.

[9] When the Notice of Appeal from an eviction order is filed, the court office will, when requested, issue a certificate of stay so that the Sheriff’s office knows not to enforce the eviction order until the stay is lifted or the appeal is dismissed.

[10] In the present case, I issued a Case Conference Endorsement on January 25, 2023, requiring the Tenant to pay the sum of $27,565 by February 1, 2023 and to pay his monthly rent on the first day of each month, as condition of maintaining the stay of the eviction order of the LTB.

[11] The Tenant complied with that condition, and the stay of the eviction order has continued in place, and continues to this day.

[12] The Tenant also commenced an Application for Judicial Review of the same LTB decision.

[13] The Appeal and the Application for Judicial Review were heard together before a full panel of the Divisional Court on September 22, 2023, and the decision is currently under reserve.

Voiding Order Appeal

[14] On August 24, 2023, the Tenants filed another Notice of Appeal. This Notice of Appeal related to an August 22, 2023 endorsement of the LTB in relation to the Tenant’s motion for an order voiding the LTB eviction order on the ground that the Tenant had made full payment of the arrears “prior to the original order becoming enforceable”.

[15] The Tenant’s motion before the LTB related to s. 74 of the Residential Tenancies Act. Section 74(4) of the Act provides that “an eviction… is void if the tenant pays to the landlord or to the Board, before the order becomes enforceable” (emphasis added) the amount of rent and arrears found owing by the LTB as well as certain additional administrative charges and costs.

[16] Section 74 provides for two procedures for obtaining a voiding order. The s. 74(6) procedure applies where full payment is made “before the order becomes enforceable”. When a motion to obtain a voiding order is made “before the order becomes enforceable”, the motion can be brought without notice to the Landlord and the LTB can make its decision without holding a hearing: s. 74(5) – (8). The onus is then on the Landlord to bring a motion to the LTB to have the voiding order set aside: s. 74(9) – (10).

[17] If the tenant pays the amount of arrears and other charges and expenses “after the order becomes enforceable but before it is executed”, the tenant can still bring the motion for a voiding order, but must give notice to the landlord: s. 74(11), and the motion must be referred to a hearing: s. 74(14).

[18] In its motion before the LTB, the Tenant took the position that he had made relevant payments before the Order became enforceable, and he therefore did not have to give Notice to the Landlord. The LTB’s decision of August 22, 2023 did not decide whether or not he was entitled to a voiding order, but decided that the s. 74(6) procedure did not apply because the payment was made after the eviction order became enforceable. The LTB stated:

The Tenant has submitted a second motion to void in relation to this order issued on January 12, 2023.

The Tenant alleges they are seeking a voiding order under section 74(6) of the Act.

The order required that the Tenant pay $27,651.88 on or before January 15, 2023, the date in which the order became enforceable.

The first motion to void indicated that the Tenant paid $29,670.76 to the Landlord on January 31, 2023.

As a result, the Board was not able to issue a voiding order as the payment was not made on or before January 15, 2023 in accordance with the order.

Therefore, this second request must be denied. Where payments to void an order are made after the order becomes enforceable, and before the Sheriff enforces the order, then the motion to void must be referred to a hearing to determine if the Landlord has incurred additional expenses after the order became enforceable and to determine if the Tenant has previously filed a motion to void with the Board.

[19] Thus, the LTB did not decide the merits of the Tenant’s motion, but only that the Tenant had to bring his motion under s. 74(11) on notice to the Landlord.

[20] The Tenant’s Notice of Appeal alleges that the LTB misinterpreted the term “enforceable” in s. 74 of the Residential Tenancies Act.

[21] It is important to note that the August 22, 2023 LTB Order is not an eviction order. It did not purport to evict the tenant, it set out the procedure for the Tenant to follow if he sought to void the eviction order. The eviction order was issued by the LTB on January 3, 2023, and has already been appealed and is subject to a statutory stay pending the decision of the Divisional Court.

[22] Staying the August 22, 2023 LTB order would not, therefore, stay an eviction order. In my view, the stay of the August 22, 2023 LTB order would have no practical effect, since there was nothing to be enforced. Where the LTB decision simply dismisses a request for relief, a “stay” of the Order has no practical effect.

Leave to Appeal is Required

[23] The Ontario Court of Appeal has issued many decisions explaining the difference between a final and an interlocutory decision. One such recent decision is 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, at para. 7, where the court offered this succinct distinction:

A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678.

[24] The August 22, 2023 LTB decision is an interlocutory decision. It dealt with a procedural issue: could the Tenant’s voiding motion proceed without notice to the Landlord?

[25] The Divisional Court has previously held that that the Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order of the LTB: Delic v. Enrietti-Zoppo, 2022 ONSC 1627, at paras. 9 and 12:

The Residential Tenancies Act, 2006 does not give a right of appeal from an interlocutory order…

It cannot be the legislature’s intention … to put tribunal proceedings on hold every time an interlocutory decision is made. Section 210 does not confer a right of appeal from an interlocutory order.

[26] This decision was confirmed in Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, where the Divisional Court reaffirmed that legislation conferring a right to appeal a decision of an administrative tribunal confers a right to appeal only a final decision, absent clear language indicating that there is a right to appeal an interlocutory decision.

[27] In the absence of a right of appeal, the Tenant must seek leave to appeal the interlocutory decision of the LTB.

[28] Alternatively, he may bring an application for judicial review, but that will also be subject to the jurisprudential restraints relating to judicial review of interlocutory decisions. It is well-established that, in most cases, reviewing courts will decline to engage in a judicial review until the administrative proceeding has been completed. This principle was summarized in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, at paras. 31-32, quoted with approval by the Ontario Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69:

Absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

[29] See the summary of case law set out in National Car Rental Inc. et al. v Municipal Property Assessment Corp. et al., 2023 ONSC 2989, at paras. 29 - 32.

Conclusion

[30] The Notice of Appeal of the August 22, 2023 LTB decision must, therefore, be quashed.

[31] As a result, the statutory stay of the LTB endorsement is also terminated: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at para. 39.

[32] While the Tenant is granted an extension to bring the motion for leave to appeal the August 22, 2023 LTB decision, if the Tenant intends to seek leave to appeal, he must proceed to do so expeditiously. Accordingly, for the purposes of the Rules relating to applications for leave to appeal to Divisional Court, the timelines set out at Rule 61.03(1) will commence the day of the release of this Endorsement. Motions for leave to appeal from a decision of an administrative tribunal are heard by a single judge pursuant to s. 21(3) of the Courts of Justice Act, R.S.O 1990, c. C. 43.

Justice R.E. Charney

Date: October 12, 2023