Executive Summary: Key Legal and Evidentiary Issues

• Extension of time to appeal and seek judicial review turned on the “interests of justice” test, including intention to appeal, short but unexplained delay, prejudice to the landlord, and very weak merits.
• Evidence of service and notice was critical: tribunal records showing portal access and an emailed hearing notice undercut the tenant’s claim she never received notice, with her practice of checking email only sporadically treated as her own responsibility.
• Allegations of adjudicator bias were rejected as bald, unsupported by evidence, directed at the wrong decision-maker, and raised too late, contrary to the requirement to first bring bias concerns before the adjudicator and to raise them promptly.
• References to s. 210 of the Residential Tenancies Act and “inappropriate use” of the Act were viewed as bare assertions, with no factual or legal foundation connecting those points to the impugned review decision.
• A sustained pattern of non-payment of rent, broken promises regarding arrears and move-out dates, and serial recourse to reviews and appeals to maintain a stay led the Court to find the proposed appeal and judicial review to be an abuse of process.
• Prejudice to the landlord was established through substantial rent arrears and ongoing carrying costs, supporting both refusal of the extension and lifting of the stay on the Landlord and Tenant Board eviction order.

Facts of the case
Barbara Green was a residential tenant of premises owned by Javinka Patel. The tenancy was governed by Ontario’s Residential Tenancies Act, 2006 (RTA). The dispute arose from a prolonged failure by the tenant to pay rent and arrears, combined with her efforts to use Board and court processes to stave off eviction while remaining in possession without making regular payments. The landlord first obtained an order from the Landlord and Tenant Board (LTB) on 6 June 2025 on an application to terminate the tenancy and evict for non-payment of rent. By consent, the LTB ordered the tenant to pay arrears of $13,436 in installments of $650 on the 15th of each month, in addition to regular monthly rent of $2,650 due on the first of each month, and authorized the landlord to apply without notice to end the tenancy and evict if any payment was missed. The tenant made one payment on arrears but failed to pay the regular rent due 1 July 2025. The landlord then brought an ex parte motion. On 10 July 2025, the LTB cancelled the consent payment arrangement, terminated the tenancy, and ordered eviction effective 21 July 2025 if all arrears, then calculated at $12,786, were not paid by that date. The tenant later brought a motion to set aside the ex parte order. That motion was scheduled for 18 August 2025. Although properly served with the Notice of Hearing and not requesting an adjournment, the tenant did not appear. The LTB member treated her non-attendance as an abandonment of her motion and, on 28 August 2025, confirmed the ex parte eviction order and arrears. On 3 September 2025, the tenant sought an LTB review of the 28 August order and obtained an interim stay pending that review. The review was heard by videoconference on 18 September 2025. The tenant declined the opportunity to speak with duty counsel. She maintained that she had never received notice of the 18 August hearing. The LTB, however, found that she had been properly served: the Board’s records showed she had accessed her file via the Tribunals Ontario Portal in early July, had agreed to receive further communications by email, and had confirmed the email address on file. The Board’s system recorded that a Notice of Hearing email was sent on 17 July 2025 at 10:59 a.m. The tenant explained that she only checked her email once a month. The Board concluded that she had made a conscious decision to receive notices by email, that the notice in fact issued, and that her habit of sporadic email checking did not negate service. On 2 October 2025, by review decision, the LTB denied the review and lifted the stay of the eviction order.

Procedural history and legal issues
After the 2 October 2025 LTB review decision, Ms. Green wished to challenge it in the Ontario Superior Court of Justice, Divisional Court. She brought a motion for an extension of time both to file a Notice of Appeal and to commence an Application for Judicial Review (JR) of that review decision. The appeal and JR were out of time because the governing procedural rules require that such proceedings be initiated within 30 days. The Court identified the applicable legal framework for extending time: under Rule 61.04 of the Rules of Civil Procedure for appeals and s. 5(2) of the Judicial Review Procedure Act for judicial review, the Court may extend time where the interests of justice so require. The factors include whether there was an intention to appeal within the original time, the length and explanation of the delay, prejudice to the responding party, and the merits of the proposed appeal or JR. On the merits side, Ms. Green’s Notice of Appeal alleged: (a) bias by an LTB member she identified as “Ian Speers” at a “review hearing” on 18 September 2025; (b) misuse or “inappropriate use” of the RTA at that hearing; and (c) an issue under s. 210 of the RTA. She also raised “procedural fairness” and suggested that the review decision improperly handled communications and notice. At the same time, the landlord, Ms. Patel, brought a motion for dismissal on the ground that the proposed appeal and JR were frivolous, vexatious, and an abuse of process. The landlord argued that the tenant had effectively used LTB processes and court stays to remain in the property rent-free for an extended period without a realistic intention to remedy the arrears.

Court’s analysis
In assessing the extension of time, the Court accepted that the tenant always intended to appeal or seek JR, and observed that the delay itself was relatively short. However, it noted that Ms. Green had offered no persuasive explanation for failing to commence the appeal or JR within the 30-day limit. More significantly, the Court focused on the substantial prejudice to the landlord and the poor merits of the proposed appeal and judicial review. The Court found that the landlord had suffered clear prejudice: aside from a single $650 arrears payment in July 2025 and a later rent payment made only under court compulsion, the tenant had paid no rent since February 2025 and the arrears had grown to approximately $25,386. The landlord continued to carry mortgage and building expenses while receiving almost no rent from the unit. On the merits, the Court stressed that the decision under challenge was the LTB’s 2 October 2025 review decision, which examined procedural fairness, not the substance of the underlying ex parte eviction order. The review member had simply confirmed that the original member followed Board policies and procedures and that service had been properly effected by email in accordance with the tenant’s own communications preferences. The tenant’s challenge to that process was weak: the Board’s internal records on portal access, email address confirmation, and the sent email materially undermined the claim of non-receipt; the tenant’s own decision to check email only sporadically could not be converted into a denial of service. The allegations of bias were even less tenable. The Court noted that the alleged bias related to a member identified as “Speers” and to a decision on 18 September 2025, yet the only decision actually under appeal or JR was the 2 October 2025 review decision of Member Alexandre Traboulsi. There was no decision of a member named Speers in the record before the Court, and no request for review or JR of any such decision. The Court further held that, as a matter of law, bias allegations must first be raised before the adjudicator whose impartiality is in question, typically by a recusal motion, and must be advanced as soon as reasonably possible. Here, bias was raised for the first time in the Notice of Appeal to the Divisional Court; it had not been raised before the Board at any prior stage. Nor was there any evidence to support the “bald allegations” of bias. The references to s. 210 of the RTA and “inappropriate use” of the Act at the review were also unparticularized and, in the Court’s view, irrelevant to the review decision actually before it. Section 210 deals with the LTB’s rights on appeal, including receiving notice and being represented, and did not advance any cognizable ground of appeal based on the record filed. Having found that the merits of both the appeal and JR were poor, and that the tenant had supplied no explanation for delay while the landlord bore ongoing prejudice, the Court concluded that the “justice of the case” did not support extending time.

Abuse of process and outcome
Even considering the merits arguable at a very low threshold, the Court went on to consider the landlord’s abuse-of-process motion. Relying on prior Divisional Court authorities, the judge emphasized that a stay of an LTB eviction order pending appeal is an important protection that allows tenants to pursue appeals while preserving their tenancies, and enables the court to do justice to both sides at the end of the process. However, a stay is not intended to provide rent-free accommodation while an appeal is used as a mere device to delay eviction. A key indicator of a tenant “gaming the system” is a lengthy period of non-payment of rent without reasonable explanation or any genuine plan to address arrears. On the record before it, the Court found that Ms. Green fell squarely within that category. She had paid rent or arrears only twice since June 2025, each time under compulsion: once the $650 arrears payment required by the consent order, and once a rent payment ordered by the Divisional Court itself. She had promised to comply with the consent payment schedule and did not; she had promised to vacate by 31 October 2025 and did not. Throughout, she pursued reviews and challenges at the LTB and in the Divisional Court, which she was entitled to do, but the practical effect was to keep a stay of eviction in place while avoiding meaningful payments toward arrears. The Court concluded that the proposed appeal and JR were being used as a stratagem to delay eviction and constituted an abuse of process. As a result, even if an extension of time were otherwise available, the Court held it would still have dismissed the appeal as an abuse of process.

Final orders and monetary consequences
In the result, the Divisional Court dismissed the tenants’ motion to extend time to file their Notice of Appeal and to bring the Application for Judicial Review. It lifted the stay of execution of the LTB’s eviction order, but directed that the Sheriff not evict the tenants earlier than noon on 31 December 2025, thereby setting an outer date by which vacant possession could be enforced. On costs, the Court held that the landlords, having succeeded on their motion while Ms. Green had not, were presumptively entitled to their costs. However, the judge did not fix a costs amount in this endorsement. Instead, he ordered written costs submissions from the landlords by 30 January 2026 and from Ms. Green by 27 February 2026, after which a costs determination would be made. The decision does not itself award or quantify damages or rent arrears; the figure of approximately $25,386 in arrears is cited only as background, having been established through the LTB process. Accordingly, while the successful party is the landlord, Ms. Patel, the total monetary award or costs ultimately ordered in her favour cannot be determined from this decision alone because the quantum of costs was left to be decided following later written submissions and no new money judgment for arrears or damages was made in this endorsement.