Case: Ellenor v. Chernysh, 2026 ONCA 10 (CanLII)
Keywords: Landlord and Tenant Board; eviction; jurisdiction
Synopsis:
The Landlord and Tenant Board (“LTB”) grants an eviction order terminating the Moving Party’s tenancy (i.e., to allow the Responding party’s son to live on the premises). The LTB later denies the Moving Party’s request to review the eviction order. (See para. 4). The Moving Party then commences an appeal to the Divisional Court – filing the notice of appeal automatically stays the eviction order pending appeal. (See para. 5).
Following a case conference, O’Brien J. sitting as a single judge of the Divisional Court lifts the stay of the eviction order due to the Moving Party’s failure and inability to pay rent. The Moving Party is advised that the proper route to challenge the lifting of the stay order is a panel review motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (i.e., “[a] panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion”). (See para. 6). The Moving Party’s motion to set aside the lifting of the stay is later struck by Corbett J. on the basis that it was “not framed as a panel review motion but sought a fresh determination of the issues decided by O’Brien J.” (See para. 7). The Moving Party then files an extension and stay motion at the Court of Appeal (i.e., requesting time to file a motion for leave to appeal and a stay of the eviction order); the Court per Roberts J.A. determines it lacks jurisdiction to hear the motion and dismisses the Moving Party’s requests. (See paras. 9, 12).
Importance:
This case confirms that the appropriate route to challenge a decision of a single judge of the Divisional Court is to a panel of the Divisional Court on a motion under s. 21(5) of the Courts of Justice Act. (See para. 10; Bernard Property Maintenance v. Taylor, 2019 ONCA 830 at paras. 2-3).
Citing a range of authorities (e.g., Amstar Pool ILP v. Tweneboa-Kodua, 2025 ONCA 493, at para. 6, Pannone v. Peacock, 2022 ONCA 520, at para. 11, and Lum v. College of Physiotherapists of Ontario, 2020 ONCA 271, at para. 15), Roberts J.A. found that “there is no appeal to this court from the order of a single judge of the Divisional Court in the present circumstances”. (See para. 10).
Of interest for future cases, s. 6(1)(a) of the Courts of Justice Act provides that an appeal lies to the Court of Appeal from “an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal as provided in the rules of court”. However, since the underlying case conference direction by O’Brien J. was made in her capacity as a single judge of the Divisional Court, Roberts J.A. concluded this section does not provide jurisdiction to the Court of Appeal:
Section 6(1)(a) of the Courts of Justice Act permits this court to hear an appeal, with leave, from an order of a panel of the Divisional Court. (See para. 11; emphasis in original).
Therefore, on a go-forward basis, the direction from the Court of Appeal is that:
- s. 6(1)(a) of the Courts of Justice Act does not, by itself, confer jurisdiction to appeal Divisional Court orders unless made by a panel; and
- single judge orders should be appealed to a panel of the Divisional Court pursuant to s. 21(5) of the Courts of Justice Act. (See para. 11).
The Moving Party, acting in person: Vladislav Chernysh
Counsel for the Responding Party: Anthony Spadafora (Levitt, Di Lella, Duggan & Chaplick LLP, Toronto)