Tenants didn't follow proper route to set aside single judge's order
The Ontario Court of Appeal has refused to grant a stay of eviction for tenants who failed to raise a serious issue to be determined on appeal.
The dispute in Pannone v. Peacock, 2022 ONCA 520 stemmed from the termination of a tenancy agreement. Patricia Rodgers and Massimo Pannone were tenants in a property owned by John Peacock. Due to a potential sale of the property, the landlord obtained an order from the Landlord and Tenant Board in March 2022 which terminated the tenancy and ordered the tenants to move out by April 11, or else an eviction order would be enforced.
The tenants appealed to the Divisional Court. The landlord, however, brought a motion to quash the appeal, which was granted by a single judge of the Divisional Court. The tenants brought an urgent motion requesting a stay of the judge’s order pending determination of their leave to appeal.
The appeal court emphasized that in granting a stay, the overarching consideration is whether a stay is in the interests of justice. According to the court, the factors that must be considered before a stay order may be issued are the existence of a serious question to be determined on appeal, irreparable harm that will be suffered by the moving party if the stay is not granted, and balance of convenience that favours granting a stay.
In this case, the Court of Appeal ruled that a stay should not be granted because the requirement that there must be serious issues to be determined on appeal was not met despite its low threshold. In addition, the leave for appeal motion did not follow the proper appeal route. The court explained that the proper procedure for setting aside or varying a decision of a single judge of the Divisional Court is by way of a motion to a panel of the Divisional Court. The court emphasized that parties must proceed by that route before coming to the Court of Appeal.
The appeal court said that if it had no jurisdiction to entertain the leave motion, the motion had no merit and it would be contrary to the interests of justice to grant a stay.
The tenant, Rodgers, requested the Court of Appeal to transfer the matter to the Divisional Court. The appeal court acknowledged that she had raised a question of law in her stay motion concerning new evidence that had at least some arguable merit, but it refused to transfer the matter. The appeal court found that the landlord had already suffered considerable prejudice through the actions of the tenants –due to the tenants’ failure to move out, the landlord was forced to cancel the sale of the property. While the landlord was able to find a new buyer, the property was sold for $30,000 less than the amount of the original sale.
The appeal court said it should be Rodgers who takes “whatever steps she deems advisable” in order to bring the proceedings in the proper forum to either attempt to halt the eviction or to pursue other remedies she may have.