Abuse of Process by Appeal Involves An Appeal Without Merit For Purpose of Stay and DelayPage last modified: March 03 2022
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Can a Tenant Appeal An Order to Evict As a Way to Avoiding Moving Out of the Rented Premises?
A Tenant May Try to Game the System By Using An Appeal of An Order to Evict Issued By the Landlord Tenant Board As a Delay Tactic. The Appeal Courts Strongly Frown Upon This Type of Conduct Which Is Referred to As a Misuse of Process.
Understanding the Landlord Concerns Upon Appeal of An Order to Evict Brought Solely As a Delay Tactic By a Tenant
After an Order to Evict is issued by the Landlord Tenant Board, a tenant may commence an Appeal proceeding. In some circumstances, the tenant is commencing the Appeal proceeding without legitimate concern for an error by the Landlord Tenant Board; and is instead using the Appeal to delay eviction.
Right to Appeal
When the Landlord Tenant Board issues an Order to Evict, a tenant may, rather than vacating the rented premises, commence an Appeal to the Divisional Court. The right to Appeal to the Divisional Court is provided within the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17; however, the right is limited to challenging an Order of the Landlord Tenant Tenant Board on the basis of a question of law. Furthermore, when an Appeal is brought on an Order to Evict, per the Rules of Civil Procedure, R.R.O. 1990, Regulation 194, a Stay of the Order to Evict is automatically applied. The right to Appeal, on the limited basis of a question of law was well explained in the case of Hazlett v. Cantusci et al., 2022 ONSC 745 while referencing the Residential Tenancies Act, 2006, and the Rules of the Civil Procedure, whereas each state:
210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
Eviction Order Under Residential Tenancies Act, 2006
63.01 (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
(b) terminating a member’s occupancy of a member unit in a non-profit housing co-operative and evicting the member.
Appeal to the Divisional Court
 The tenant has appealed the ruling of the Board to this court. This appeal results in a stay of the eviction order under Rule 63.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
 Pursuant to s. 210(1) of the RTA, an appeal from a decision of the Board lies to the Divisional Court, but only on a question of law. This court has previously quashed appeals from orders of the Board where the appeal does not raise a question of law: see Solomon v. Levy, 2015 ONSC 2556 (Div.Ct), at paras. 33- 34 and Mahdeih v. Chan, 2019 ONSC 4218 (Div.Ct.), at para. 8.
 The landlord submits that the tenant’s appeal cannot succeed and should be quashed because it raises no question of law. The test for quashing an appeal is whether it is manifestly devoid of merit: Schmidt v. Toronto Dominion Bank 1995 CanLII 3502 (ON CA), 1995, 24 OR (3d) 1 (C.A.). The court in Schmidt did point out that this power is to be exercised sparingly because “it is very difficult, in most cases, to reach the conclusion that an appeal is devoid of merit without hearing the entire appeal”.
Misusing Right to Appeal Process
In some circumstances the right to bring an Appeal is misused, commonly by a tenant, for the purpose of obtaining a temporary Stay and thereby delaying the eviction, whereas the tenant will commence the Appeal process without an intent to argue genuinely held concerns arising from the decision of the Landlord Tenant Board. This concern was addressed by the Divisional Court in Hazlett where it was said:
The appeal is an abuse of process
 In his oral argument at this motion, the tenant made it clear that he had no intention of paying the accumulated arrears to the landlord and moreover, he intended to pursue civil proceedings or further proceedings before the Landlord and Tenant Board for substantial damages which, he claims, would exceed any accumulated rental arrears. As noted previously, the tenant has steadfastly refused to pay any rent or water charges since September 2020, a period of 18 months, thereby accumulating arrears in the sum of $27,000 plus accumulated water charges. There is no justification for this position and it is a clear abuse of the stay provision in Rule 63.01(3).
 Section 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that, on a motion, “a court to which an appeal is taken may, in a proper case, quash the appeal”. One of the grounds on which an appeal from an order of the Board may be quashed is where it is an abuse of process: Oladunjoye v. Jonker, 2021 ONSC 1199 (Div. Ct.), at para. 17.
 This court has recently held that it is an abuse of process to commence an appeal from an order of the Board in order to take advantage of the automatic stay to avoid paying rent due to the landlord, see Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 (Favreau J.), in which the court stated (at para 25):
 This Court has repeatedly held that it is an abuse of process for a litigant to commence an appeal from an order of the Board for the purpose of obtaining an automatic stay of an eviction order, otherwise referred to as “gaming the system”: Regan v Latimer, 2016 ONSC 4132 (Div. Ct.), at para. 25; and Wilkinson v. Seritsky, 2020 ONSC 5048 (Div. Ct.) at para. 34. One of the key indicia that a tenant is trying to “game the system” is where the Tenant has failed to pay rent for a persistent and lengthy period of time without a reasonable explanation or any intention to remedy the situation: Wilkinson, at para. 34 and Oladunjoye v. Jonker, 2021 ONSC 1199 (Div.Ct) at para. 27.
 In all of the circumstances, I have come to the conclusion that the tenant’s non-payment of his rent since September 2020 and his avowed intention to continue to refuse to pay rent is an abuse of the process of this court.
Where the Landlord Tenant Board issues an Order to Evict, rather than vacate the premises per the Order, a tenant may begin an Appeal to the Divisional Court. In some circumstances the Appeal process is used as a guise to delay an eviction rather than to genuinely challenge the legalities within the Order of the Landlord Tenant Board. The various appeal courts, starting at the Divisional Court, frown heavily upon the misuse of the appeal process as a means to delay an eviction.
Notable Additional Concern
If a case is appealed, a paralegal is unable to provide representation in the appeal process; and accordingly, a lawyer may be required to assist in addressing the appeal.