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.

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.