Jurisdiction (LTB)

Also See

• Attornment (Re: Jurisdiction)
• Monetary Jurisdiction (Re: LTB)

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

86 A landlord is entitled to compensation for the use and occupation of a rental unit by a tenant who does not vacate the unit after his or her tenancy is terminated by order, notice or agreement. 2006, c. 17, s. 86.

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. 2006, c. 17, s. 87 (1).

(2) Section 82 applies, with necessary modifications, to an application under subsection (1). 2006, c. 17, s. 87 (2).

(3) If a tenant is in possession of a rental unit after the tenancy has been terminated, the landlord may apply to the Board for an order for the payment of compensation for the use and occupation of a rental unit after a notice of termination or an agreement to terminate the tenancy has taken effect. 2006, c. 17, s. 87 (3).

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. 2006, c. 17, s. 89 (1); 2013, c. 3, s. 29.

(2) If the Board makes an order requiring payment under subsection (1) and for the termination of the tenancy, the Board shall set off against the amount required to be paid the amount of any rent deposit or interest on a rent deposit that would be owing to the tenant on termination. 2006, c. 17, s. 89 (2).

Izumi v Skilling, 2020 CanLII 20510 (ON SCSM)

2. The plaintiffs’ amended claim seeks $35,000 for alleged damage to the residential property which they rented to the defendant from June 2011 to June 2017, including lost rent while remedial work was underway. The amended claim also sought punitive damages but that claim was not pursued. The damages amount claimed in closing submissions was $25,085.

3. The defendant denies liability and denies having caused any damage whatever to the property. In her evidence she testified that the property was “spotlessly clean” when she moved out. Significant credibility issues are presented by the evidence.

Jurisdiction

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.

Applicable Legal Rules

5. Under section 33 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, tenants are responsible for the “ordinary cleanliness” of rental units. As for damage to rental units, section 34 provides as follows:

34 The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.

Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII)

[8] The Board’s jurisdiction also includes the authority under s. 30 of the Residential Tenancies Act to grant extensive relief including damages and any order that it considers appropriate. (See: Mejia v. Cargini, 2007 CANLII 2801 Div. Ct.)

[10] The Deputy Judge correctly referred to and applied the test as set out by Perell J. in Mackie v. Toronto, 2010 ONSC 3801 (CanLII) at paras. 43-44. The Deputy Judge set out the test at para. 10 of her reasons:

The real test is that described at page 7 of the Luu case when it reviewed the reasoning of then Deputy Judge Bale and Justice Perell in relation to the Mackie v. Toronto decision. As Justice Perell put the point: “It doesn’t matter whether a tenant’s claim is for a cause of action ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. Rather, the court must determine the essential character of the dispute and, if having done so, the court finds that the subject matter is expressly or inferentially governed by the statute, then the claim is within the exclusive jurisdiction of the Board".

[11] Having correctly set out this test she then applied it as follows at para. 11:

Given that very cogent reasoning, the task before me is to decide whether the acts or omissions alleged to constitute the landlord’s “negligence” here are in substance or “essential character” a complaint that the landlord breached its obligations to the tenant arising by statute and/or the lease relationship, to ensure quiet enjoyment and ensure building safety for occupants and their property. I find that in substance and “essential character” the plaintiff’s claim for loss of property due to failure to secure the premises adjacent to the plaintiff is in substance a complaint of that nature and is a “matter” assigned to the exclusive jurisdiction of the Board. I grant the defendant’s motion and dismiss the action for want of jurisdiction on that basis.

Kiselman v. Klerer, 2019 ONSC 6668 (CanLII) (DIVISIONAL COURT)

[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.

Released: December 12, 2019

Summary of Above

1. The landlord brought a claim in Small Claims Court for rent arrears and damage to the property
2. The claim was brought after the tenant had vacated the property
3. The amount of the claim did not exceed the $25,000 cap

Conclusions

1. Nothing turns on the fact that the action was started after the tenant was no longer in possession.
2. 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.

Taylor v. Donros Developments, 2012 ONSC 7196 (CanLII)

[14] The Court of Appeal has recently confirmed that sections 168(2) and 174 effectively exclude the jurisdiction of this court over all matters for which the Act grants jurisdiction to the Board, “including his [i.e. the tenant’s] right to compensation.” As the Court of Appeal put it, “[i]f the [tenant] would like to pursue his claim for damages, he will have to appeal the decision rendered by the [Landlord and Tentant Board].” Diallo v. Toronto Community Housing Corp., 2011 ONCA 424 (CanLII), at para. 18.

[15] In the present case, rather than rendering a decision on the merits the Board permitted the Plaintiff to withdraw his application. Para. 4 of the Board’s order of June 25, 2012 states that the Plaintiff first requested a brief adjournment to speak with duty counsel, after which “the Tenant requested the consent of the Board to withdraw their [sic] application as he wished to seek the full remedy claimed in his application based on the Landlord’s alleged breach in another court of competent jurisdiction.” Unfortunately, the Board did not correct the misimpression that there is another forum in which a tenant can claim damages against a landlord for failure to properly maintain a residential unit; however, the Board’s oversight in that regard cannot confer jurisdiction on this court where the Act takes it away.

[17] As indicated above, the Plaintiff has filed an Amended Statement of Claim setting out the identical cause of action and based on the identical facts as the original Statement of Claim. The only thing that has changed in the amended pleading is the calculation of damages, which has been dramatically increased. Nevertheless, the original Statement of Claim raised a cause of action within the exclusive jurisdiction of the Board, and so does the amended version. Much as the amendment should not have been accepted by the court office without an order authorizing that amendment, the amendments do not save the claim from the Defendant’s motion. This court has no jurisdiction over the matters claimed in this action, whichever version of the claim one reads.

[18] Given that the Defendant is correct in its jurisdictional challenge, it is not necessary to consider whether the claim is also barred as being res judicata. The action is dismissed, with costs to the Defendant.

Heger v. Varajao et al., 2010 ONSC 4603 (CanLII)

III DISCUSSION

A. Jurisdiction

1. under Part III of Commercial Tenancies Act

[75] The motion is brought pursuant to Part III of the Commercial Tenancies Act, s. 74.

[76] Section 74(1) of the Commercial Tenancies Act provides for the right of a landlord to make an application in respect of an overholding tenant:

74(1) Where a tenant . . . wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies.

[77] The inquiry mentioned in s. 74(1) is addressed in s. 74(2):

74(2) The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was a tenant to the complainant for a term . . . that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession.

[78] Particulars as to the form and content of the notice of the inquiry are dealt with in s. 74(2).

[79] The title of a proceeding under s. 74(1) is described in s. 75 as being “styled . . . In the matter of (giving the name of the party complaining), Landlord, against (giving the name of the party complained against), Tenant.”

[80] If the tenant appears, s. 76 (2) provides for a summary disposition:

76(2) . . . the judge shall, in a summary manner, hear the parties and their witnesses, and examine the matter, and, if it appears to the judge that the tenant wrongfully holds against the right of the landlord, he or she may order the issue of the writ.

[81] An appeal lies to the Divisional Court under s. 78(1), and s. 78(2) reads:

78(2) If the Divisional Court is of the opinion that the right of possession should not be determined under this Part, the court may discharge the order of the judge, and the landlord may in that case proceed by action for the recovery of possession.

[82] It is obvious that 214 Ontario Limited, despite saying so, is not proceeding under Part III of the Commercial Tenancies Act. Yet, there is no obligation on a landlord to firstly proceed under Part III. It is open for a landlord to bring an action for recovery of possession, which is what 214 Ontario Limited did in its counterclaim.[48] Nevertheless, it is incorrect to say that the within motion is brought under Part III of the Commercial Tenancies Act.

2. under Residential Tenancies Act, 2006

[83] Section 207(1) of the Residential Tenancies Act, 2006, upon which 214 Ontario Limited also relies in bringing this motion, states:

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.

[84] Where a claim exceeds the monetary jurisdiction of the Landlord and Tenant Board, s. 207(2) provides that the claimant:

207(2). . . 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.

[85] The amount of money at stake here exceeds $25,000 and, therefore, is beyond the jurisdiction of the Landlord and Tenant Board and the Residential Tenancies Act, 2006.

[86] Moreover, a core issue in the action (and in the motion) is the nature and validity of the tenancy agreement between the plaintiffs and the numbered-company defendants; and, it was held in Kaiman v. Graham (2009), 2009 ONCA 77 (CanLII), 75 R.P.R. (4th) 157 (Ont. C.A.), at para. 12, that the Residential Tenancies Act, 2006, “does not confer jurisdiction on the Tribunal[51] to determine whether there is a valid tenancy agreement.”

[87] Therefore, it is not correct to say that the motion is brought pursuant to s. 207(1) of the Residential Tenancies Act, 2006.

3. otherwise

[88] The jurisdiction of the Landlord and Tenant Board under s. 207(1) is “non-exclusive”: see Kaiman v. Graham, supra, at para. 15.

[89] Therefore, the counterclaim of 214 Ontario Inc. and the motion, while not properly brought pursuant to s. 207(1) of the Residential Tenancies Act, 2006, are otherwise within the jurisdiction of the Superior Court of Justice.

Sterling Studio Lofts Incorporated v. Clayton Stel, 2019 ONSC 91 (CanLII)

[1] The Appellant appeals from the orders of Member Savoie of the Landlord and Tenant Board (“LTB”) dated April 18, 27 and 28, 2017 finding that the Residential Tenancies Act, 2006, S.O. 2006, c. 17. (“RTA”) applies to the tenancy of the Respondents at various units at 221, 225, and 227 Sterling Road, Toronto (the “Rental Units”). The Appellant argues that the lease agreement between the respective parties was, at all material times, a wholly commercial lease in form and substance. The Appellant requests that Member Savoie’s orders be set aside and this Court order that the RTA does not apply to the Rental Units. In the alternative, the Appellant requests that the matters be remitted to the LTB for a de novo hearing.

[2] Nine similar applications to the LTB had initially been consolidated. By Order dated October 4, 2017, Perell J. ordered that all but one of the Appellant’s appeals (Div Ct File Nos. 265/17, 266/17, 267/17, 286/17, 287/17, 288/17, 289/17, 290/17) be heard together and immediately after hearing the Firm Capital Management and Sterling Studio Lofts Inc. v Heather Tessier appeal (Div Ct File No. 193/17) (the “Tessier Appeal”), which was to be heard separately.

[3] Reasons for judgment in the Tessier Appeal, 2019 ONSC 55 (CanLII) are being released concurrently with these reasons.

Analysis

[24] We disagree with the thrust of the submissions put forth by the Appellants and for the following reasons the appeal must be dismissed.

[25] The LTB has exclusive jurisdiction to hear and determine all applications under the RTA with respect to all matters in which jurisdiction is conferred on the LTB under the RTA (RTA, s. 168(2)).

[26] Further, the LTB has the authority to deal and determine all questions of law and fact with respect to all matters within its jurisdiction (RTA s. 174).

[27] The RTA applies to all “rental units” despite any term in a tenancy agreement that suggests otherwise. “Rental Unit” is defined in s. 2(1) of the RTA as “any living accommodation used or intended for use as rented residential premises.” The LTB has exclusive authority to determine whether a premise is a “rental unit” and hence subject to the RTA.

[30] Accordingly, we are of the view that determinations respecting the application of the RTA falls squarely within the LTB’s area of expertise (RTA s. 2(1), s. 4(1) and s. 9): First Ontario Realty Corporation v. Deng, 2011 ONCA 54 (CanLII), 330 D.L.R. (4th) 461, at paras. 16-22; and Onyskiw, supra at paras. 29 and 31.

[31] In our view, the issue of whether or not the RTA applies to a given rental unit lies squarely within the expertise of the LTB and should be reviewed on a standard of reasonableness.

[34] A correctness standard may apply in rare cases where the questions of law at issue are both of central importance to the legal system and outside the adjudicator’s specialized area of expertise. Yet, the issue in this case concerns the application of the RTA – the LTB’s home statute – and this determination, in our view, falls wholly within the LTB’s specialized expertise as the adjudicative tribunal explicitly mandated to adjudicate applications under the RTA.

Capreit Limited Partnership v. Griffin, 2016 ONSC 5150 (CanLII)

[1] This appeal relates to two issues:

(a) whether the Deputy Judge committed an error in law by determining that the Small Claims Court did not have jurisdiction to hear the appellant’s claim for damages

(b) whether the Deputy Judge misapprehended the evidence and committed a palpable and overriding error by finding as a fact that a second or further Landlord and Tenant Board Hearing took place on September 20, 2013 at which time the appellant’s damages claim would have been addressed.

Issue: The Jurisdiction of the Small Claims Court

[7] Section 23(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 states:

(1) The Small Claims Court,

(a) has jurisdiction in any action for the payment of money where the amount claimed does not exceed the prescribed amount exclusive of interest and costs; and

(b) has jurisdiction in any action for the recovery of possession of personal property where the value of the property does not exceed the prescribed amount.

[8] The jurisdiction of the Landlord and Tenant Board is set out in section 168 (2) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (the “RTA”), which states:

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.

[9] Section 89(1) of the RTA deals with a landlord’s right to compensation for damage to a rental unit and provides as follows:

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.

[15] In Kipiniak v. Dubiel, 2014 ONSC 1344, Mr. Justice H.J. Wilton-Siegel determined that any application to seek occupation arrears was required to be made to the Board so long as the tenant remained in possession of the premises. However, once the tenant was no longer in possession, the Small Claims Court had jurisdiction to hear the claim, subject to its monetary jurisdiction and the provisions of the Limitations Act. (See: paras 25 and 26).

[16] I am satisfied that Deputy Judge Barycky erred in law in determining that the Small Claims Court had no jurisdiction to hear the appellant’s claim for compensation for damages.

Issue: Whether Deputy Judge Barycky misapprehended the evidence such that there is a palpable and overriding error.

[17] In his oral judgment Deputy Judge Barycky finds that there was a further hearing before the Board on September 20, 2013 and the damages could have been addressed at that time. This finding is incorrect. The order of the LTB dated August 23, 2013 identifies that “This combined application was heard in Mississauga on August 22, 2013.” (See Tab 7 D of the Appeal Book and Compendium)

[18] The order of the LTB dated September 20, 2013 also identifies that,

“This combined application was heard in Mississauga on August 22, 2013.”

[19] There was no other hearing. A hearing had not taken place on September 20, 2013. In that regard, Deputy Judge Barycky committed a palpable and overriding error in making that finding.

[20] It is important to note, however, that even if a further hearing had been conducted before the LTB on September 20, 2013, the LTB would still not have had jurisdiction to deal with the issue of damages as the tenant was no longer in possession as required by Section 89(1) of the RTA.

Disposition

[21] The order of Deputy Judge Barycky dated September 14, 2015 is hereby set aside. The appellant’s Assessment Hearing is remitted back to the Small Claims Court for a hearing before a different judge of the Small Claims Court.

Brydges v Johnson, 2017 CanLII 9448 (ON SCSM)

This matter involves a protracted landlord and tenant dispute dating back to 2007. This is the second trial in this Court. The Divisional Court set aside the judgment from the first trial: [2015] O.J. No. 2151. A number of jurisdictional issues were addressed in a preliminary ruling that I rendered: 2016 CanLII 4942 (ON SCSM), (2016) O.J. No. 609, 2016 CanLii 2942 (OSCSC); affirmed, Divisional Court, June 24, 2016, unreported. As a result, the Defendants’ Claim was struck in its entirety, and portions of their Defences were struck out as well.

At this trial, what remained to be decided was:

1. Whether the Defendants are liable for arrears of rent outstanding and, if so, the amount owing; and

2. Whether the Defendants are liable for the cost of repairs and/or cleanup of the rental unit upon eviction by the Plaintiff and, if so, the quantum of damages.

2. Claim for the cost of repairs:

Sections 33 and 34 of the Residential Tenancies Act, S.O 2006, c.17 (“the Act”) provide that:

33. The tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it.

34. The tenant is responsible for the repair of undue damage to the rental unit or residential complex caused by the wilful or negligent conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant.

The Lease between the parties also provided that:

"The Lessee covenants with the Lessor… to keep the premises in an ordinary state of cleanliness and to repair damage caused by his wilful or negligent conduct or that of persons permitted on the premises by him…"

“ ...the Lessee... shall, immediately before the termination of the term hereby created, wash the floors, windows and woodwork of the premises hereby demised.”

Section 89 of the Act provides that:

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. (my emphasis)

Based on the applicable law, the questions for me to decide on the evidence admitted at trial are:

1. Was the damage to the property observed by the Plaintiff’s agents after February 5, 2010 caused by the willful or negligent conduct of the Defendants?

2. If the Defendants were responsible for the damage, could the damage have been discovered by the Plaintiff or her agents through the exercise of reasonable due diligence prior to the Defendants vacating the premises?

3. If the damage was the fault of the Defendants and could not have been reasonably discovered by the Plaintiff or her agents prior to the Defendants vacating the premises, what is the quantum of damages?

The Plaintiff bears the onus of proving liability and damages on a balance of probabilities.

I will address the answers to these questions for each of the Plaintiff’s claims under various categories:

The Plaintiff will have judgment against the Defendants, jointly and severally, in the amount of $16,822.11.

(....)

While the Plaintiff has claimed pre-judgment interest on all of her damages from December 1, 2008, none of the damages had been incurred as of this date. Rather, her full claim for the arrears of rent only crystalized on February 5, 2010, and the Plaintiff’s Claim for the arrears was commenced on March 4, 2010. The Plaintiff’s Claim was amended on November 3, 2011 to add her claims for the clean-up and repair of the premises, which only arose on or after February 5, 2010. Exercising my discretion under section 130(1)(c) of the Courts of Justice Act, I therefore find that the Plaintiff is entitled to prejudgment interest on the entire amount of the judgment from February 5th, 2010 at the rate of 0.5% annually, pursuant to section 128 of the Courts of Justice Act. The Plaintiff is also entitled to recover from the Defendants all of her filing fees arising from her Claim, all fees for setting the matter down for the two trials, and post-judgment interest.