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Residential Tenancies Act (RTA) - The Court of Appeal

January 24, 2022

Ontario

,

Canada

Issue

Can a landlord claim damages for unpaid rent in the Ontario Superior Court of Justice if there was an earlier Landlord Tenant Board proceeding where the issue was not raised?

Conclusion

A person entitled to apply under the Residential Tenancies Act but whose claim exceeds the Landlord and Tenant Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction. (s.207(2)) (Residential Tenancies Act)

In Kaiman v. Graham, the Court considered whether the Superior Court was the correct jurisdiction to hear the matter. In this case, the Court noted that the appellants had neither pleaded nor raised the RTA at trial, and was therefore oblligated to determine whether the appellants were entitled to raise the issue for the first time on appeal. The appellants argument was that the Superior Court did not have jurisdiction on the basis that the RTA applied to their orginal matter. In response, the Court of Appeal noted that the issues at trial in fact concerned the extension of a lease based on an alleged oral promise and compensation for improvements based on unjust enrichment or quantum meruit. Furthermore, even if the Board had jurisdiction, s.207(2) of the Act states that jurisdiction was non-exclusive.

In Efrach v. Cherishome Living, the Court dismissed an appeal made by the tenant in a dispute in the Small Claims Court seeking $25,000 in damages. In that case, the Deputy Judge had dismissed the claim because the essential character of the claim was within the exclusive jurisdiction of the Landlord and Tenant Board, pursuant to the Residential Tenancies Act. On appeal, the Superior Court held that the Deputy Judge had correctly identified that the Board had exclusive jurisdiction over the matter.

In Stamm Investments Limited v Ryan, the Court dismissed the claim made by the Plaintiffs for want of jurisdiction. In this case, the dispute involved the non-payment of rent claimed by the landlord for a tenacy that had been terminated by the Landlord and Tenant Board. In their ruling, Winny D.J. held that for the matter at hand, the Board had exclusive jurisdiction under the relevant section of the RTA.

Law

S.207(2) of the Residential Tenancies Act, 2006, SO 2006, c 17 states:

A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

In Kaiman v. Graham, 2009 ONCA 77 (CanLII), the Court considered whether the Superior Court was the correct jurisdiction to hear the matter. In this case, the Court noted that the Appellants had neither pleaded nor raised the RTA at trial, and was therefore oblligated to determine whether the Appellants were entitled to raise the issue for the first time on appeal. The Appellants' argument was that the Superior Court did not have jurisdiction on the basis that the RTA applied to their orginal matter. In response, the Court of Appeal noted that the issues at trial in fact concerned the extension of a lease based on an alleged oral promise and compensation for improvements based on unjust enrichment or quantum meruit. Furthermore, even if the Board had jurisdiction, s.207(2) of the Act states that jurisdiction was non-exclusive:

[14] In any event, even if the Board had jurisdiction to determine whether the tenancy was validly terminated, having regard to the appellants’ claim for damages in the amount of $250,000, the appellants were entitled to commence their proceeding in the Superior Court. Having done so, that court had all the jurisdiction that the Board would have had.

[15] Section 207(1) of the RTA states that the Board, where it otherwise has jurisdiction, may order the payment of the greater of $10,000 and the jurisdiction of Small Claims Court. Section 207(2) states:

A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

Simply put, the Superior Court had jurisdiction to grant any and all of the relief claimed by the appellants. The Board did not. Any jurisdiction it did have was, by virtue of s. 207(2), non-exclusive.

[16] Accordingly, I would dismiss the appellants’ submission that the Superior Court lacked jurisdiction to try the case.

In Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII), the Court dismissed an appeal made by the tenant in a dispute in the Small Claims Court seeking $25,000 in damages. In that case, the Deputy Judge had dismissed the claim because the essential character of the claim was within the exclusive jurisdiction of the Landlord and Tenant Board, pursuant to the RTA. On appeal, the Superior Court held that the Deputy Judge had correctly identified that the Board had exclusive jurisdiction over the matter:

[14] The Deputy Judge correctly identified the test and then applied it to the case. The essential character of the claims is captured by the exclusive jurisdiction of the Board. This is clear from s. 29(1) of the Residential Tenancies Act. It states in part as follows:

29(1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20(1) or section 161.

[15] Subsection 20 (1) of the Act states as follows:

A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

[16] Section 29(1.3) of the Act is also relevant. It states as follows:

A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.

[17] In summary, the Deputy Small Claims Court Judge gave detailed and cogent reasons. She correctly set out the test and applied it.

[18] The appeal is therefore dismissed.

[19] The appellant seeks alternative relief that I will now address. In particular, she asks that I issue an order allowing her to amend her claim to $36,000 and proceed with it in the Superior Court of Ontario. I reject this alternative relief.

[20] The appellant commenced her action in the Small Claims Court after the expiry of the one year limitation period in s. 29(2) of the Residential Tenancies Act. This Court’s jurisdiction to entertain her claim is governed by s. 207(2) of the Residential Tenancies Act which states as follows:

A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

[21] Since the one year limitation period for making a claim to the Landlord and Tenant Board had already expired when the appellant issued her claim in the Small Claims Court, she had no right to seek relief from the Landlord and Tenant Board. It follows pursuant to s. 207(2) that since the claim was statute barred before the Board, it is likewise barred from being transferred to the Superior Court of Justice, since this Court can only exercise powers “that the Board could have exercised if the proceeding had been before the Board”.

In Stamm Investments Limited v Ryan, 2015 CanLII 52577 (ON SCSM), the Court dismissed the claim made by the Plaintiffs for want of jurisdiction. In this case, the dispute involved the non-payment of rent claimed by the landlord for a tenacy that had been terminated by the Landlord and Tenant Board. In their ruling, Winny D.J. held that for the matter at hand, the Board had exclusive jurisdiction under the relevant section of the RTA:

13. In addition, the jurisdiction of the board under s. 168(2) of the Act is exclusive jurisdiction. The board exercised that jurisdiction, terminated the lease and determined the amount of rent owing. The claim for any balance due for the period up to January 20, 2014, is already addressed by the board’s order and can be enforced under s. 19 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This court has no jurisdiction to entertain a fresh proceeding against the tenants for unpaid rent.

14. As for the sheriff’s eviction fee, that is a costs incidental to enforcement of the board’s order. This court has no jurisdiction to entertain a claim against the tenants for enforcement costs before the board: see Tremblett v. McCool, [2013] O.J. No. 857 (Sm. Cl. Ct.), at para. 28.

15. The claim for $65 for cleaning apparently involves removing items from a fridge and cleaning appliances. The hearsay supporting affidavit gives no details concerning the number or nature of items removed or the nature of cleaning performed, but simply states that a contractor was paid $65. No supporting documentation is provided. I find this claim fails for want of proof.

16. The amount claimed for unpaid hydro is reduced in the hearsay supporting affidavit to $72.39 and simply refers the court to “invoices” attached to the claim. Reference to the attachments to the claim reveals two invoices showing electricity charges from January 19, 2014 to March 9, 2014. The building address is stated and an account number is stated, but there is no reference to the unit or the tenants. I find this items fails for want of proof. In any event, the tenancy having terminated by order of the board, with eviction on January 20, 2014, no further hydro charges for this unit could be made the responsibility of these tenants.

17. I conclude that as a matter of law, the only amounts owed by the tenants would be rent payable from December 1, 2013 to January 20, 2014 at $33.24 per day, which would be $1,692.24. They made payments of $750 in December 2013 and last month’s rent was $1,026.81 including interest. Therefore there is a balance owed by the landlord, but there is no claim for such a balance. Therefore had I found that the court had jurisdiction, the claim would have been dismissed on its merits.

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