Court File and Parties

CITATION: Hughes v. Mehraban, 2023 ONSC 5759

OSHAWA DIVISIONAL COURT FILE NO.: DC-23-1404

DATE: 20231012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Benjamin Mehraban, Landlord (Respondent)

AND:

Nikki Hughes, Tenant (Appellant)

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

COUNSEL: Benjamin Mehraban, Self-Represented

Jeff Schlemmer, Counsel for the Tenant (Appellant)

Katia Snukal, Counsel for the Landlord and Tenant Board

HEARD: October 11, 2023

Endorsement

[1] On August 12, 2023, the Tenant filed a Notice of Appeal to the Divisional Court from the Order of the Landlord and Tenant Board (LTB) issued on June 13, 2023 and the Review Order issued on August 3, 2023.

[2] The LTB Order indicates that the parties agreed to the terms of the Order, and that the Order was on consent of the parties.

[3] While s. 210(1) of the Residential Tenancies Act, 2006, provides that an appeal lies to the Divisional Court from a decision of the LTB, but only on a question of law, s. 133(a) of the Courts of Justice Act stipulates that no appeal applies lies from a consent order without leave of the court: Ravadgar v. Kaftroudi, 2023 ONSC 5471, at paras. 11 to 19.

[4] Accordingly, leave to appeal is required in the present case, and the Notice of Appeal in this case must therefore be quashed.

[5] As a result, the statutory stay of the LTB eviction order is also terminated.

[6] The Tenant has made significant good faith efforts to pay her rent arrears, which at the time of the LTB Order were only $5,964 on monthly rent of $1,200. Rental payments are paid by the Canadian Mental Health Association and the Ontario Disability Support Program.

[7] Counsel for the Tenant has prepared a chart indicating that the present arrears are only $1,620. This includes a set-off for an amount ($2,200) awarded to the Tenant by the LTB for hydro shut-off. The Landlord indicates that he is currently seeking a review of this award, but I must proceed on the basis of the LTB Orders as they exist today.

Conclusion

[8] The Notice of Appeal in this case is quashed.

[9] The statutory stay of the LTB eviction order is terminated.

[10] The Appellant is granted an extension to bring the motion for leave to appeal.

[11] The parties must comply with the time limits set out in Rule 61.03 for motions for leave to appeal to the Divisional Court, subject to any adjustments required to accommodate this case conference. Counsel for the Tenant indicates that he will be in a position to file the motion for leave to appeal within 7 days.

[12] I will grant a stay of the eviction order pending the the Court’s decision on the motion for leave to appeal. This stay is conditional on the Tenant continuing to pay her monthly rent and to pay all arrears within 30 days of this order.

[13] If payment is not made in accordance with para. 12 above, the Landlord may prepare and forward forthwith a draft order lifting the stay of the eviction order, in WORD format, for issuance.

Future Procedure

[14] 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.

[15] If leave to appeal is granted, appeals from decisions of the LTB have been designated to be heard and determined by a single judge of the Divisional Court under s. 21(2)(c) of the Courts of Justice Act.

[16] Given that both the leave to appeal and the appeal would be heard by one judge, the parties have proposed that I combine the leave to appeal and the appeal so that if leave is granted, the same judge will, at the same time, also decide the appeal. The LTB also supports this proposed procedure.

[17] Given the nature of the primary issue in this appeal – can the LTB make consent orders that do not include a tenant right to void the eviction by paying the arrears and costs as provided by s. 74 of the Act? – the proposal to have the judge who hears the motion for leave also decide the merits of the appeal if leave is granted offers some efficiencies for both the court and the parties.

[18] This proposed procedure was adopted by Leiper J. in Canadian Mental Health Association Toronto Branch v. So, 2022 ONSC 7016, at para. 22, where she concluded “that the question of leave and the merits, should be addressed together”.

[19] Given that both parties consent to having the motion for leave to appeal and the merits of the appeal addressed together, I will make the same order as Leiper J. in this regard, and order “that the question of leave and the merits should be addressed together”.

[20] I would not make such an order if it was not on the consent of both parties.

[21] I also note that, like a consolidation order under Rule 6 of the Rules of Civil Procedure, the order to have the motion for leave and the merits of the appeal addressed together is subject to the discretion of the presiding judge to order otherwise, if, for example, time does not permit the proposed consolidation.

Justice R.E. Charney

Date: October 12, 2023