Jurisdiction of Small Claims (LTB Claims)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1842
Page Categories:	[Jurisdiction], [Interference of Reasonable Enjoyment (LTB)], [Maintenance Obligations (LTB)]
Citation:	Jurisdiction of Small Claims (LTB Claims), CLNP 1842, <https://rvt.link/96>, retrieved on 2024-11-23
Editor:	Rstojni
Last Updated:	2023/10/18

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

168 (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French.  2006, c. 17, s. 168 (1).

Board’s jurisdiction

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.  2006, c. 17, s. 168 (2).

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Application for arrears of rent

87 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay arrears of rent if,

(a)  the tenant or former tenant did not pay rent lawfully required under the tenancy agreement; and

(b)  in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force. 2020, c. 16, Sched. 4, s. 18 (1).

Application under subs. (1)

(1.1) An application under subsection (1) may be made,

(a)  while the tenant is in possession of the rental unit; or

(b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit. 2020, c. 16, Sched. 4, s. 18 (1).

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Application for compensation for damage

89 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property if,

(a)  while the tenant or former tenant is or was in possession of the rental unit, the tenant or former tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant or former tenant wilfully or negligently causes or caused undue damage to the rental unit or the residential complex; and

(b)  in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day subsection 21 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force. 2020, c. 16, Sched. 4, s. 21 (1).

Application under subs. (1)

(1.1) An application under subsection (1) may be made,

(a)  while the tenant is in possession of the rental unit; or

(b)  no later than one year after the tenant or former tenant ceased to be in possession of the rental unit. 2020, c. 16, Sched. 4, s. 21 (1).

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12001721 Canada Inc. v Switzer, 2023 ONSC 2676 (CanLII)

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[1]              This is an appeal by the numbered company of a small claims decision rendered by a Deputy Judge at a settlement conference dismissing the Appellant’s claim for damages as against the defendants.  The appeal is unopposed by the Respondents who did not appear on the hearing.

[2]              In brief, the numbered company rented a townhouse to the defendant Respondents.  The defendants allegedly damaged the property.  The Respondents were asked to vacate the property and they did on July 31, 2021.  On October 3, 2021, the Appellant filed a claim in the Milton Small Claims Court seeking compensation for the damage.

[3]              The matter came on for a settlement conference on January 22, 2022.  The Deputy Judge dismissed the action for want of jurisdiction, relying on Kiselman v. Klerer, 2019 ONSC 6668 (Div. Ct.). That case purports to hold that the sole remedy for the Appellant in these circumstances is with the Landlord and Tenant Board. Costs of $500 against the Appellant were ordered.

[4]              It is alleged that the Deputy Judge raised this jurisdictional question of her own motion and, contrary to natural justice, did not adjourn the matter and invite submissions from the paralegal acting for the Appellant. I am unable to adjudicate this argument as there is no factual basis laid out in the record to support it.

[5]              However, on the substantive issue, I agree that the Deputy Judge erred in law.  The Small Claims court does have jurisdiction. The subsequent case of Wu v. Adler, 2022 ONSC 188 (Div. Ct.) at paras. 35-47 is convincing authority establishing that Kiselman should not be followed. I would note that Wu was decided two weeks before the Deputy Judge’s decision dismissing this claim.

[6]              Even more definitive, as commented on in Wu at paragraph 47, a reading of the pertinent legislation clarifies that the Small Claims Court has exclusive jurisdiction. The Protecting Tenants and Strengthening Community Housing Act, 2020 came into force on September 1, 2021.  It amended the Residential Tenancies Act, 2006, S.O. 2006, c. 17 to clarify the jurisdictional issue which arises in this case. Section 87 and 89 together with Schedule 4 provide that if the tenant moved out before September 21, 2021—which is the situation here—the landlord cannot apply for a remedy to the Board. Therefore, the Board not having jurisdiction, the claim could only be filed and be determined by the Small Claims Court.

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Wu v. Adler, 2022 ONSC 188 (CanLII)

Whether the Small Claims Court had jurisdiction to hear and determine the claim

[35] The appellant argues that the landlord’s claim was within the exclusive jurisdiction of the Landlord and Tenant Board, and that as a result, the Small Claims Court did not have jurisdiction to hear and determine the claim. I disagree.

[36] The general jurisdiction of the Landlord and Tenant Board is set out in s. 168(2) of the Act:

168(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

[37] That jurisdiction is, however, subject to a number of restrictions. Two of those restrictions are applicable in the present case.

[38] With respect to a landlord’s claim for arrears of rent, the landlord’s right to apply to the Board is restricted, by s. 87(1), to situations where the tenant is in possession of the rental unit:

87(1) A landlord may apply to the Board for an order for the payment of arrears of rent if,

(a) the tenant has not paid rent lawfully required under the tenancy agreement; and

(b) the tenant is in possession of the rental unit.

[39] With respect to a landlord’s claim for damages to the rental unit, the landlord’s right to apply to the Board is restricted, by s. 89(1), to situations where the tenant is in possession of the rental unit:

89(1) A landlord may apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex and the tenant is in possession of the rental unit.

[40] In the present case, neither the appellant nor Ms. Adler were in possession of the rental unit at the time the Small Claims action was commenced.

[41] In support of his position, the appellant relies upon Kiselman v. Klerer, 2019 ONSC 6688 (Div. Ct.). In that case, eleven months after the tenant had vacated the property, the landlord sued the tenant in Small Claims Court for arrears of rent and damage to the rental unit. The tenant successfully moved for an order dismissing the claim for want of jurisdiction, and the landlord appealed. In dismissing the appeal, the appellate judge reached the following conclusion:

The landlord brought a claim in Small Claims Court for rent arrears and damage to the property. The claim was brought after the tenant had vacated the property. … It is plain and obvious that s. 168(2) of the Act gives the Board exclusive jurisdiction to determine claims of this type between landlord and tenant. The parties had a landlord and tenant relationship, and in my view, nothing turns on the fact that the action was started after the tenant was no longer in possession. It is clear that disputes of this sort are the daily fare of the Landlord and Tenant Board. When assessing claims, the Board is in the best position to determine whether claims for rent arrears and allegations of damage to property against the tenant amount to "undue damage" or simply wear and tear as a result of the normal occupancy of a residential unit.

[42] It is not clear from the appellate judge’s reasons in Klerer whether he is saying that the Board has jurisdiction notwithstanding the restrictions in ss. 87(1) and 89(1), or that a landlord has no remedy for arrears of rent or damages, if the tenant has moved out. The former would require the Board to ignore the clear restrictions in those sections; the latter would be unfair to landlords. It cannot be that a tenant can move out leaving the landlord without recourse for unpaid rent, and in the case of damages, a landlord may have no idea that the rental unit has been damaged, before the tenant moves out.

[43] In support of his conclusion, the appellate judge cited two earlier decisions of this court: Mackie v. Toronto (City), 2010 ONSC 3801 and Effrach v. Cherishome Living, 2015 ONSC 472, both of which are easily distinguished. Neither deals with the question of jurisdiction raised in the present case.

[44] In Mackie, the plaintiffs’ claims were that the housing authority had breached its maintenance and repair obligations to the plaintiffs. The plaintiffs’ recourse was under s. 29 of the Act which provides that a “tenant or former tenant of a rental unit may apply to the Board … .” I also note that in that case, the tenants were still in possession.

[45] In Effrach, the tenants, complained that they had been robbed while on vacation and that their loss was a result of the landlord’s negligence. The court found that these claims came within ss. 29(1) and 29(1.3) of the Act, both of which are available to a “tenant or former tenant”. And again, the tenants were still in possession.

[46] Klerer aside, in cases where the question of jurisdiction raised in the present case has been raised, this court has held that the Small Claims Court does have jurisdiction. See, for example: Capreit Limited Partnership v. Griffen, 2016 ONSC 5150, at paras. 8-15; and Brydges v. Johnson, 2017 ONSC 7410, at para. 11.

[47] As a matter of interest, on September 21, 2021, sections 87 and 89 of the Act were amended to provide that applications for arrears of rent, or for compensation for damage to the rental unit, may be made while the tenant is in possession of the unit, or no later than one year after the tenant or former tenant ceased to be in possession of the unit. As a result, this question of jurisdiction should no longer arise.

Kiselman v. Klerer, 2022 ONCA 489 (CanLII)

[15] Given that the respondents had moved out and severed their connection to the rental unit, the LTB does not have jurisdiction, let alone exclusive jurisdiction, over this litigation. Instead, the claims fall within the monetary jurisdiction of the Small Claims Court. The Divisional Court appeal judge therefore erred in denying the appeal from the decision of the deputy Small Claims Court judge, who also erred in dismissing the landlord’s claim for want of jurisdiction.

Kiselman v. Klerer, 2019 ONSC 6668 (CanLII)

[7] Section 89(1) of the Residential Tenancies Act provides:

A landlord may apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue dame to the rental unit or the residential complex and the tenant is in possession of the rental unit.

[8] Section 207 of the Residential Tenancies Act deals with the monetary jurisdiction of the Board, providing:

207(1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.

[9] I pause to note that the time that this matter was dealt with, the monetary jurisdiction of the Small Claims Court was $25,000. As noted, the claim brought by the landlord in this case was for $17,166.55 in rent arrears and property damage.

[10] This issue has been considered in a number of decisions in Ontario. In Mackie v. Toronto (City), 2010 ONSC 3801, Perell J. noted at para. 43:

It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims…From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.

[11] In Fong v. Lemieux, [2016] O.J. No. 2695, T. Marshall, Deputy J., relied on the decision of Perell J. in Mackie and stated at paras. 61-62:

[61] The Board has the expertise and day to day experience in handling matters pertaining to what is before the Court today, namely, rent arrears and damage claims to rental units. While it is true such claims have to be in the Superior Court of Justice for claims above $25,000.00 [per s 207 of the Act], the Board deals with such smaller claims more expeditiously than if it were a Superior Court of Justice matter, even a Small Claims Court matter. This is a hallmark of the Board proceedings.

[62] I accept a broad interpretation of Mackie pays no heed to provisions in the Act as to certain consequences whether a tenant is in possession of a rental unit or is a former tenant. In my view, this difference is ill-founded. If an issue arose out of a landlord and tenant relationship, that the tenant has moved out does not change the underlying character of the dispute, in the matter before the Court, rent arrears and damage to the unit…

[12] In Effrach v. Cherishome Living, 2015 ONSC 472, Horkins J., sitting on appeal, dealt with an order of a deputy Small Claims Court judge dismissing a landlord’s claim in Small Claims Court for lack of jurisdiction. Horkins J. reviewed the legislation and Justice Perell’s decision in Mackie, and summarized the law as follows at paras. 5-6:

[5] The jurisdiction of the Landlord and Tenant Board is set out in the Residential Tenancies Act. The Board has exclusive jurisdiction to determine all Applications under the Residential Tenancies Act with respect to all matters in which jurisdiction is conferred on it by the Residential Tenancies Act. The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under the Act.

[6] Where the Board has jurisdiction, the Small Claims Court has no jurisdiction because the jurisdiction of the Board is exclusive and not concurrent.

[13] The landlord brought a claim in Small Claims Court for rent arrears and damage to the property. The claim was brought after the tenant had vacated the property. The amount of the claim did not exceed the $25,000 cap, then in place under s. 207(1) of the Act. It is plain and obvious that s. 168(2) of the Act gives the Board exclusive jurisdiction to determine claims of this type between landlord and tenant. The parties had a landlord and tenant relationship, and in my view, nothing turns on the fact that the action was started after the tenant was no longer in possession. It is clear that disputes of this sort are the daily fare of the Landlord and Tenant Board. When assessing claims, the Board is in the best position to determine whether claims for rent arrears and allegations of damage to property against the tenant amount to “undue damage” or simply wear and tear as a result of the normal occupancy of a residential unit.

[14] The appeal of the appellant. Uri Kiselman, is dismissed.

Brydges v. Johnson, 2017 ONSC 7410 (CanLII)

[9] The Respondent served on the Appellants a Form N4 Notice to End a Tenancy Early for Non-Payment of Rent while the Appellants still were in possession of the rented premises. The Appellants vacated the premises on February 5, 2010. The Claim in this matter was issued on March 4, 2010.

[10] The Appellants contend that based on s. 168 (2) of the RTA once the Respondent had served the N4 Notice while the Appellants were in possession of the rented premises, the Board had exclusive jurisdiction, even after the Appellants vacated the premises.

[11] Respectfully, I reject this argument. In my view s. 87 of the RTA is determinative of the issue. The Respondent, as a result of s. 87(1)(b), could no longer have resort to the Board by application for arrears of rent after the Appellants had vacated the premises. Therefore, s. 168 (2) was not a bar to the jurisdiction of the Small Claims Court to hear the claim brought by the Respondent on March 4, 2010. Since the Board did not have jurisdiction, the courts did.

[12] Further, an application under s. 87 for arrears of rent is made by virtue of s. 185 (1) by way of Form L9. The Form N4 notice could have been the basis for an application under s. 69 of the RTA to terminate a tenancy and evict a tenant; that type of application is made pursuant to s. 185 (1) by Form L1 styled Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes. That type of application was never made in this case.

Chu v Kokko, 2020 CanLII 20497 (ON SCSM)

5. Instead this is simply a claim for the utilities component of rental arrears, brought after the tenancy ended and the tenant gave up vacant possession on August 1, 2018. On the authority of Brydges v. Johnson, [2017] O.J. No. 6473 (Div. Ct.), this court has jurisdiction over such a claim. I am aware of the more recent decision in Kiselman v. Klerer, [2019] O.J. No. 5857 (Div. Ct.), which reached the opposite conclusion. Only one of those authorities can be correct. With respect, I prefer Brydges v. Johnson, which accords with the plain language of s. 87(1)(b) of the Residential Tenancies Act, 2006.

Izumi v Skilling, 2020 CanLII 20510 (ON SCSM)

4. While jurisdiction was not challenged by the defence, I accept that this court has jurisdiction over the matter based on the authorities cited by Mr. Ellis: Capreit L.P. v. Griffen, [2016] O.J. No. 7338 (Div. Ct.); Brydges v. Johnson, 2016 CanLII 4942 (ON SCSM), [2016] O.J. No. 609 (Sm. Cl. Ct.), affirmed (June 24, 2016), (Ont. Div. Ct.) [unreported]. I am aware of Kiselman v. Klerer, [2019] O.J. No. 5857 (Div. Ct.), which reaches the opposite conclusion but without reference to those two prior cases. Faced with clear conflict amongst the Divisional Court authorities on point and until such time as the issue is resolved by the Court of Appeal, I must choose between them. I prefer to follow those earlier authorities.

Lamarche v Ko, 2016 CanLII 86111 (ON SCSM)

[4] The plaintiffs as tenants and the defendant as landlord entered into a written Agreement to Lease a residential unit owned by the defendant located at 155 Yorkville Avenue, Suite 3106, Toronto, Ontario (the “Premises”) signed on August 2, 2015 (the “Lease”). The term of the Lease was to commence September 1, 2015 and end on August 31, 2016. The plaintiffs paid a deposit to the defendant.

[5] The plaintiffs are mother and daughter who ordinarily reside in Ottawa. The daughter was coming to school in Toronto and needed the Premises to stay while going to school.

[6] On August 21, 2015 the defendant by email through her agent informed the plaintiffs that she would not allow them to take possession of the Premises. The defendant also refused to give them a key to the Premises on August 30 and 31, 2015, even though the plaintiffs had brought the daughter’s belongings by rental moving vehicle from Ottawa to Toronto ready to move into the Premises. In fact, at no time did the defendant give a key or allow the plaintiffs to take possession of the Premises.

[7] According to the plaintiffs, when they went to the Landlord and Tenant Board they were informed that it had no jurisdiction for this matter as this was a breach of contract case.

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[14] For the defendant to succeed in this motion she must prove that the claim falls within the exclusive jurisdiction of the LTB.

[15] In reviewing the RTA, the material and the cases submitted and upon hearing arguments from both sides, I am not persuaded that the Plaintiff’s Claim falls within the exclusive jurisdiction of the LTB.

[16] Pursuant to section 168(2) of the RTA the LTB has “exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by the Act”.

[17] In our case when the defendant informed the plaintiffs on August 21, 2015 that she would not be giving possession to the plaintiffs on September 1, 2015, that was an anticipatory breach of contract which, in my view, prevented the tenancy from beginning or being created. Consequently, absent the tenancy, the LTB would not have jurisdiction to deal with this matter.

[18] Unlike the case at bar, in Efrach the tenant was making what amount to breach of security obligations or breach of the covenant of quiet enjoyment in the guise of a negligence claim when a claim to the LTB was available to the tenant to make during the tenancy (unlike here) and within a year of leaving. Efrach is therefore distinguishable.

[19] No tenancy began in this case; it was repudiated by the defendant and the claim is purely in contract.

[20] I therefore conclude that the court has jurisdiction to hear the Plaintiff’s Claim and the defendant’s motion is dismissed. This matter shall proceed to the Settlement Conference scheduled for September 26, 2016.