How to remove a tenant who has appealed an eviction order in Ontario
Ontario’s Landlord and Tenant Board, often referred to as the LTB, was created to resolve disputes between landlords and tenants as well as to provide the respective parties information about their rights and responsibilities.
For a landlord, a non-paying tenant can be burdensome. It can be costly proceeding through the LTB process and obtaining an order for eviction. If an order for eviction has been granted, a tenant has 30 days to file an appeal to the Ontario Superior Court of Justice, Divisional Court, by serving and filing a Notice of Appeal and paying the requisite fee.
Pursuant to section 25(1) of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S. 22, an order for eviction from the LTB is automatically stayed until the Appeal has been dealt with or the court orders otherwise. Pursuant to section 210(1) of the Residential Tenancies Act, appeals must raise an error of law in the LTB’s decisions.
Unfortunately for the landlord, the appeal process is lengthy as the Divisional Court does not automatically schedule hearing dates or assist in moving the matter along as the LTB would. This creates a favorable environment for a tenant who can essentially sit back once their Notice of Appeal is filed, avoid taking any further steps, and continue living rent-free. The clerk of the Divisional Court may, after a few months or up to a year, dismiss the appeal for delay, however, this varies on a case by case basis. The landlord is stuck in a precarious situation where the tenant cannot be removed and continues to refuse paying ongoing rent or continues to damage the property. The appeals process is more complex than even the standard Superior Court process with strict deadlines and requirements to be followed where a party wishes to seek relief in an efficient manner – a lawyer should always be utilized as slip ups can cause further delays.
Removing a Tenant that has Appealed an LTB Order
A landlord’s fastest and most efficient course of action should be to proceed with a motion to quash the appeal. A motion to quash is typically utilized sparingly by the Divisional Court and is only be granted in the proper circumstances.
In the recent 2019 decision of Prebtani v. Szabo where KPA Lawyers successfully represented the landlord, the Divisional Court quashed the tenants appeal and followed the well established precedent that a motion to quash should only be granted where: 1) the Notice of Appeal fails to raise a question of law, 2) the appeal is devoid of merit or alternatively, 3) the appeal is frivolous, vexatious and an abuse of process.
The proper approach in the motion to quash is to provide evidence on a motion by showing that the Notice of Appeal does not raise an error of law, but rather, raises questions of fact, or mixed questions of fact and law, which were already considered by the LTB. Simply stating that the tenant is refusing to pay rent, while important to establish an abuse of process, may not in of itself be enough to quash the appeal. The motions judge will typically rely on the LTB reasons in deciding whether there may be an error of law and will not find one where the LTB exercises its discretion in a reasonable manner. By contrast, an appeal may be considered meritorious where the LTB member in their reasons, failed to follow the Residential Tenancies Act and corresponding guidelines. For the tenant’s appeal to proceed, the LTB member’s decision must be so unreasonable that their decision falls outside the expected range decisions in the circumstances.
Where rent continues to go unpaid and the tenant has not taken any steps to further their appeal (i.e. obtain transcripts and file further documents), the court will find that the appeal is an abuse of process, pursued in order to obtain the benefit of the automatic stay.
Where the tenant raises a legitimate issue concerning an error of law by the LTB, the Court will refuse to quash the appeal on a motion as it is more appropriate for a hearing before the entire panel of the Divisional Court. In such circumstances, the landlord can still rely on section 134(2) of the Courts of Justices Act for an interim order requiring that the tenant comply with specific terms and conditions. These conditions often include the payment of ongoing rent, the payment of all rental arrears and the tenant perfecting their appeal within a reasonable time. However, the Court has previously found that where a tenant has a history of non-payment of rent, an interim order for payment should not be made and the appeal should be quashed. Each case is considered unique and as such, the landlord needs to rely on established case law to carefully present its basis for requesting the quashing of the tenant’s appeal.
Starting Early and Seeking Legal Help Immediately
A landlord that learns their tenant has launched an appeal for an order for eviction should act quickly and obtain legal representation as soon as possible. If a motion is not brought quickly or in the proper manner, a troublesome tenant can remain in the property for several months before they are removed. KPA Lawyers has represented several landlords and tenants in LTB appeals with an excellent track record of success.
 Zalcman v. Medicoff, 2018 ONSC 4618, para. 17.
 Regan v. Latimer, 2016 ONSC 4132 para 26.