Can I Stop an Eviction While I Appeal an LTB Decision in Ontario?

An eviction order can mean you must leave on short notice. If you are thinking about an appeal, your first worry is likely whether you have to move out before the court looks at it.

A pause on an order is called a stay. This article explains what the court's guide says about stays, why you should not assume you are covered, and what else you can do quickly. This is general information, and your timing is likely to matter more than anything here.

Appeal basics before the stay question

Appeals of LTB decisions go to the Divisional Court and are limited to questions of law only (section 210 of the Residential Tenancies Act). They must generally be brought within 30 days after the date the order was made. You start with a Notice of Appeal (Form 61A) and an Appellant's Certificate Respecting Evidence (Form 61C), served on respondents within 30 days of the order.

If your complaint is only that you disagree with the facts the LTB found, an appeal may not be the right tool.

What the court's guide says about stays

The Superior Court's guide says filing a Notice of Appeal does not automatically suspend the decision, and that a stay requires a motion to the Divisional Court. It also notes that rule 63.01 of the Rules of Civil Procedure gives automatic stays on delivery of a Notice of Appeal for certain orders, including an eviction order under the Residential Tenancies Act.

Those two statements can look inconsistent. Whether an automatic stay applies to your order, how long it lasts, and whether the landlord can challenge it are questions to confirm with a lawyer or the court before you rely on it. Do not plan your move-out, or your decision to stay, around an assumption.

Other routes that may help sooner

An appeal is not the only option, and it may not be the quickest. The LTB has other steps depending on how the order came about.

• If you missed the hearing, the adjudicator can dismiss or decide an application without you. A motion to set aside an ex parte order has no charge.
• A motion to void an eviction order for arrears also has no charge.
• A Request to Review an Order costs $58 and can be based on not being reasonably able to participate, a serious error in the order, or new evidence that could not have been obtained earlier.
• Check the exact review deadline with the LTB, since it has been described inconsistently.

Which of these applies depends on the type of order and what happened at the hearing, so a lawyer or paralegal can help you choose.

Why speed matters

Most LTB orders are enforced through the courts. How this works for your eviction order and how much time it gives you depends on your situation, so it is worth confirming with a lawyer. Orders can set a date to leave, and delay in acting can leave you with few options. If you are close to the 30-day appeal mark, the Notice of Appeal itself is time-sensitive.

If you can pay the arrears or fix the problem named in the order, ask a lawyer whether that changes your options.

What to do next

• Note the date of the order and count 30 days from it.
• Keep the order, the Notice of Hearing and every notice from the landlord.
• Get legal advice now about whether an automatic stay applies to your order.
• Ask whether a stay motion, a review request or another step fits better.
• Do not ignore the order while you wait, and keep records of every step you take.
• For file questions, call the LTB at 1-888-332-3234, Monday to Friday, 8:30 a.m. to 5:00 p.m..

Frequently asked questions