No Shortcut to the Court of Appeal Ellenor v. Chernysh
Ellenor v. Chernysh, 2026 ONCA 10 is a concise but instructive decision from the Ontario Court of Appeal that underscores a recurring problem in residential tenancy litigation: serial, procedurally improper appeals used to delay enforcement of eviction orders.
While the tenant was self-represented, the Court made clear that self-representation does not permit an “end run” around settled jurisdictional rules, nor does it excuse repeated attempts to relitigate the same issue through the wrong forum.
Background
The case arose from a landlord’s successful application to the Landlord and Tenant Board (“LTB”) to terminate a tenancy so the landlord’s son could occupy the unit.
Although the tenant initially obtained the benefit of an automatic stay by appealing to the Divisional Court, that stay was later lifted due to the tenant’s ongoing failure to pay rent.
Rather than pursuing the statutorily mandated review route, the tenant embarked on a series of motions and appeals that had the practical effect of stretching out the eviction process.
The Procedural Timeline
The chronology illustrates how repeated, improper steps can delay enforcement—until the court intervenes firmly.
Timeline of Events
- February 10, 2025
The LTB issues an eviction order, terminating the tenancy so the landlord’s son may move into the unit. - June 30, 2025
The LTB denies the tenant’s request to review the eviction order. - July 21, 2025
The tenant appeals to the Divisional Court, triggering an automatic stay of eviction. - October 30, 2025
At a case conference, O’Brien J., sitting as a single judge of the Divisional Court, lifts the stay due to the tenant’s failure and inability to pay rent.- The tenant signals an intention to appeal.
- O’Brien J. expressly advises that the only proper route is a panel review under s. 21(5) of the Courts of Justice Act.
- November 21, 2025
Corbett J., also sitting as a single Divisional Court judge, strikes the tenant’s motion because it improperly sought a fresh determination rather than a panel review.- Corbett J. confirms that a panel review remains available—even after eviction.
- Late November 2025
Despite repeated warnings, the tenant brings a motion in the Court of Appeal seeking an extension of time and a stay of eviction. - December 2, 2025
The Court of Appeal hears the motion and dismisses it, with reasons to follow. - December 8, 2025
Scheduled eviction date. - January 8, 2026
The Court of Appeal releases reasons confirming it lacks jurisdiction and awarding $1,500 in costs to the landlord.
The Court of Appeal’s Decision
The motion failed at the threshold: jurisdiction.
The Court reaffirmed settled law:
- There is no appeal to the Court of Appeal from an order of a single judge of the Divisional Court in these circumstances.
- The exclusive remedy is a panel review motion under s. 21(5) of the Courts of Justice Act.
- Section 6(1)(a) applies only to appeals from a panel of the Divisional Court, not from a single judge.
Importantly, the tenant had been told this repeatedly—by two Divisional Court judges, opposing counsel, and the Court of Appeal’s own administrative office.
Persistence did not create jurisdiction.
Costs
Although the tenant argued that he could not afford costs, the Court ordered $1,500 all-inclusive in favour of the landlord. The Court emphasized that inability to pay is only one factor, and that this motion should never have been brought.
Practice Considerations
1. Courts Will Not Tolerate Procedural “End Runs”
This decision is a clear signal that appeal after appeal after appeal, brought through the wrong forum, will eventually be stopped—often with costs consequences.
Delay alone is not a litigation strategy.
2. Know the Difference Between a Review and an Appeal
An order of a single Divisional Court judge:
- cannot be appealed to the Court of Appeal;
- must be challenged by panel review under s. 21(5).
Mislabeling a motion or choosing the wrong court will not save it.
3. Repeated Warnings Matter
Here, the tenant was warned multiple times about the correct procedure. That history was central to:
- the jurisdictional dismissal, and
- the Court’s willingness to award costs.
Once a litigant is on notice, persistence becomes unreasonable conduct.
4. Self-Represented Litigants Get Leeway—Not a Licence
The Court was careful but firm: self-representation does not entitle a party to:
- re-argue the same issue endlessly, or
- force the opposing party to incur unnecessary expense.
Judicial patience has limits.
5. For Landlords and Counsel: Push Back Early
Where tenants engage in serial, meritless motions:
- put jurisdiction front and centre,
- document prior warnings, and
- seek costs.
This case shows appellate courts are receptive to shutting down abusive procedural tactics.
Conclusion
Ellenor v. Chernysh confirms a basic but critical principle: jurisdiction is not optional, and courts will not permit procedural gymnastics to delay the inevitable. Even in eviction matters—where the consequences are serious—the rules governing appeals remain fixed.
COMMENT
There was a good deal of litigation in this case. The litigation review starts off with the LTB order on 10 February 2025. Likely, it took not less than 9 months to get there and here another 11 months for the final Court decision.
So, if you can stop paying rent stretch things out for the best part of two years, and then be ordered to pay $1,500.00 in costs, that’s not bad. Be sure to consider this case in any matter involving a negotiation of “cash for keys”.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com