Court File and Parties

CITATION: Shearer v. Oz, 2024 ONSC 1890 Divisional Court File No.: DC-23-1438 Date: 2024-04-04 Superior Court of Justice – Ontario Divisional Court

Re: Charles Shearer and Jenna Shearer, Moving Parties (Tenants) And: Eran Oz and Jennifer Oz, Respondents (Landlords)

Before: D.L. Corbett, Matheson and O’Brien JJ.

Counsel: Self-represented moving and responding parties Anna Solomon, for the Landlord and Tenant Board

Heard: April 3, 2024, by video-conference

Endorsement

[1] The tenants have brought a motion for leave to appeal the decision of the Landlord and Tenant Board (“LTB”) dated August 22, 2023 (the “Decision”).

[2] In the Decision, the LTB dismissed the tenants’ second motion to void a prior LTB eviction order because the motion was brought under the wrong section of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”). There was an available process to seek that relief, under a different section of the RTA.

[3] The tenants had initially submitted a notice of appeal from the Decision, which was quashed by the case management judge, Charney J., for lack of jurisdiction. As set out in the case management judge’s endorsement of October 11, 2023 (2023 ONSC 5748; the “Endorsement”), the Decision is interlocutory and there is no right of appeal.

[4] After quashing the appeal, the case management judge decided that in order to pursue a challenge to the Decision, the tenants needed to either seek leave to appeal the interlocutory order of the LTB or seek judicial review. The tenants proceeded with a motion for leave to appeal to this Court.

[5] Among other issues on the motion in this Court, the LTB has raised the issue of whether there is jurisdiction to seek leave to appeal from an interlocutory decision of the LTB. The LTB submits that there is no jurisdiction. The case management judge did not expressly address that question in the Endorsement, proceeding on the basis that there is jurisdiction.

[6] There is no statutory provision that provides jurisdiction to seek leave to appeal a decision of the LTB to this Court. The RTA does not provide that right. Further, the RTA expressly addresses appeal rights in s. 210 and appeal rights are limited to a right of appeal from a decision of the LTB. As set out in the Endorsement, those appeal rights are from final decisions only. It would be inconsistent with the RTA to have a right to seek leave to appeal from decisions of the LTB.

[7] The Courts of Justice Act does not provide jurisdiction either. Its s. 19(1)(b) applies to orders from judges only and s. 133 also does not apply. Lastly, it is insufficient to rely only on the Rules of Civil Procedure. The Rules provide for the procedure regarding motions for leave to appeal, but there must first be statutory jurisdiction for this Court to grant such a motion.

[8] The Divisional Court is court of statutory jurisdiction. In the absence of an applicable statutory right to seek leave to appeal to this Court, there is no jurisdiction. That is the case here.

[9] We recognize that the tenants proceeded with a course of action that they would reasonably have seen as open to them. However, it remains the case that the LTB, in the Decision, indicated how the tenants should proceed before the LTB. The parties have indicated that there is an ongoing process at the LTB following that process. Once the LTB proceedings are concluded, the tenants may pursue an appeal if available. Further, until the LTB proceedings are concluded an application for judicial review would be premature in this case. The tenants’ next steps are at the LTB.

[10] This motion is dismissed. There shall be no order as to costs.

Corbett J.

Matheson J.

O’Brien J.

Date: April 4, 2024