Executive Summary: Key Legal and Evidentiary Issues

• The Divisional Court found it had no jurisdiction to hear appeals from interlocutory decisions of the Landlord and Tenant Board (LTB).

• Orders remitting tenancy disputes for fresh hearings do not constitute final decisions capable of appeal.

• The LTB’s review decisions merely vacated prior termination orders and called for rehearings, leaving the substantive issues unresolved.

• The appellant’s reliance on a previous decision suggesting finality was dismissed as incorrect and non-binding.

• The court reaffirmed that judicial review remains the appropriate, albeit limited, recourse for challenging interlocutory administrative decisions.

• Costs of $8,300 were awarded against the appellant for improperly pursuing an appeal without jurisdiction.

Factual background and procedural history

Andrew Fisher, the appellant, sought to terminate the residential tenancies of Joanne Haines and Wendy Michno. The Landlord and Tenant Board (LTB), through Member Mosaheb, initially ruled in Fisher’s favor on March 27, 2023, issuing unreported decisions terminating the tenancies. Both Haines and Michno subsequently requested a review of those decisions.

On May 6, 2024, Member Lin of the LTB granted those review requests. The original termination orders were set aside and the matters were remitted for fresh hearings. In other words, the Board did not rule on the underlying tenancy disputes but decided they should be re-heard from the beginning.

Fisher appealed these review decisions to the Divisional Court, arguing they amounted to final orders that were properly appealable.

Jurisdictional analysis and ruling

At the outset of the hearing, the Divisional Court directed that the threshold issue of jurisdiction be addressed. Fisher’s argument relied on the 2011 decision in Leduc v. Glen Echo Park Inc., where a review decision ordering a rehearing was considered appealable. Fisher emphasized the LTB’s initial characterization of the review decisions as “final,” even though this was later amended.

The court rejected this argument, finding it inconsistent with established authority. It emphasized that the review decisions were interlocutory in nature—they did not resolve the substantive disputes but merely ordered new hearings. As such, they were not appealable to the Divisional Court under Ontario law.

The panel cited several authorities, including Penney v. The Co-operators General Insurance Company and Delic v. Enrietti-Zoppo, to support the longstanding principle that interlocutory orders from administrative tribunals are not subject to appeal unless explicitly permitted by statute. The decision in Leduc was found to be either silent or per incuriam on the jurisdictional issue and was explicitly not followed.

Availability of judicial review

The court acknowledged that judicial review may be available for interlocutory decisions in “exceptional circumstances.” However, it noted that no such application had been made in this case. Further, any such application likely would have been dismissed as premature, given that the substantive tenancy matters had yet to be re-heard.

Outcome and costs

Finding no jurisdiction to hear the appeal, the Divisional Court dismissed the appeal outright. Costs were awarded against Fisher in the amount of $8,300, inclusive and in aggregate for both appeals, payable within thirty days.