Damages - Post-Termination of Tenancy (LTB)

Sumner v Crease, 2012 CanLII 98397 (ON SCSM)

21. There are conflicting views on whether first instance decisions of the Superior Court of Justice are binding on lowers courts. One view is such decisions do not have binding effect: Masse v. Dietrich, 1971 CanLII 554 (ON SC), [1971] 3 O.R. 359 (Co. Ct.). On this view, the decisions of the Superior Court of Justice are binding on lower courts only when they are the product of its appellate jurisdiction: R. v. Gagne, [1988] O.J. No. 2518 (Prov. Div.). This approach was recently said to be supported by the weight of the authorities: R. v. L.(D.) (No. 2), 2005 ONCJ 344 (CanLII), [2005] O.J. No. 3183 (O.C.J.), at para. 15-20. However the correctness of this approach has been questioned, in the name of greater certainty and predictability: Kingscott v. Megaritis, 1972 CanLII 473 (ON SC), [1972] 3 O.R. 37 (H.C.J.). No doubt unanimity on this question continues to evade Ontario courts in 2012.

22. I am aware of no authorities which analyze this question in any depth as applied to the Small Claims Court. Nor am I aware of any appellate decisions on this point and it is inherently unlikely that an appellate court would ever find it necessary to direct a first instance court on how to treat its own precedents.

26. I find that reasoning applies here. Section 59 of the Residential Tenancies Act, 2006, deals with termination of a tenancy. If a tenancy is terminated under that provision by virtue of a tenant moving out on or before the termination date set out in the notice of termination (Form N4), the tenancy is terminated for all purposes, including the common law. Therefore the landlord has no basis to claim prospective rent after the date of termination set out in his Form N4.