Limitations (LTB)

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.