Jurisdiction (LTB)
Kiselman v. Klerer, 2019 ONSC 6668 (CanLII)
[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.
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.
