Limitations (LTB)
Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII)
[6] Where the Board has jurisdiction, the Small Claims Court has no jurisdiction because the jurisdiction of the Board is exclusive and not concurrent.
[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”.
Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 (CanLII)
[13] The motion judge concluded that, although the estate’s claim exceeded the monetary jurisdiction of the Board, the action had to be commenced within the one-year limitation period for applications to the Board under the Act (s. 29(2)) before the court could assume jurisdiction.
[14] In arriving at this conclusion, the motion judge followed Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII), (2015) O.J. No. 293 (Div. Ct.), a decision of a single judge of the Divisional Court upholding an appeal from the Small Claims Court. The appeal judge in Efrach agreed with the Deputy Judge’s characterization of the claim as one of non-repair[2] and held that the Board had exclusive jurisdiction. In the part of her decision that is relevant here, she refused leave to amend the claim to permit damages exceeding the monetary jurisdiction of the Board, and to transfer the action to the Superior Court. She reasoned that, after the expiry of the one year limitation period for making a claim to the Board, the claim could not be transferred to the Superior Court since that court “can only exercise powers that the Board could have exercised if the proceeding had been before the Board”: at para. 21.
[15] While we express no opinion on the result in Efrach, we disagree with the conclusion that the one year limitation period for applications to the Board applies to actions before the Superior Court for non-repair. The motion judge here erred in following the reasoning in Efrach and concluding that the court lacked jurisdiction over the action.
[16] There is simply no basis for importing the limitation period prescribed by the Act for applications to the Board into an action of this kind. The limitation of actions is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. and, pursuant to s. 19, the limitation periods listed in the schedule to that Act (including s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 which requires a tort action by an estate to be commenced within two years of the deceased’s death). As the action was commenced within two years of the deceased’s death (and indeed within two years of the alleged slip and fall), there is no question of the expiry of any limitation period to bar the action.
[17] Accordingly, the Superior Court has jurisdiction over the action and the claims are not statute-barred.
Toronto Community Housing Corporation v. Allan Vlahovich, 2010 ONSC 1686 (CanLII)
[10] Our conclusion is consistent with the case law concerning limitation periods in respect of claims for nuisance (see Roberts v. City of Portage La Prairie, 1971 CanLII 128 (SCC), (1971) S.C.R. 481 (S.C.C.)). Member Rozehnal attempted to distinguish Roberts and similar cases that were brought to her attention on the basis that they involved the common law tort of nuisance rather than a statutory remedy and that the statutory limitation periods considered in those cases were worded differently from s.29(2).
[11] We see nothing in these distinctions that rises to the level of principle. There is no reason that the approach taken to this issue in Roberts should not be taken here. In addition, properly understood, the decision of this Court in Goodman v. Menyhart, [2009] O.J. No. 1602 is not inconsistent with our approach. In that case the Court ordered that an abatement extend back one year before the application had been made and no further. The only issue in that case was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application.
[13] Accordingly, we conclude that the Board erred in law in allowing an abatement of rent prior to the one year period preceding the making of the application.
