Limitations - Re: Collection of Arrears (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1179
Page Categories:	Payment of Rent (LTB)
Citation:	Limitations - Re: Collection of Arrears (LTB), CLNP 1179, <7f>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2023/06/16

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1437619 Ontario Ltd. v Gao, 2023 ONSC 3487 (CanLII)

[1] The appellant appeals from the decision of Deputy Judge Twohig of the Toronto Small Claims Court dated December 5, 2022, with oral reasons given that day.

[2] The judgment from which the appeal is brought awarded the appellant $8,400.00 for rental arrears owed by the respondent, and awarded the respondent $3,000.00 in costs.

[3] The appellant submits that the Deputy Judge erred by:

a. Applying the two-year limitation period under the Limitations Act, S.O. 2002, c. 24 to the claim rather than the six‑year limitation period under s. 17 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (RPLA);

b. Implicitly finding that the respondent was severally (rather than jointly) liable for the rent claimed, and thereby reducing the amount awarded notwithstanding the respondent’s concession about the amount to be paid in the event the Deputy Judge found in favour of the Appellant;

c. Awarding costs to the respondent in circumstances in which the Appellant was the successful party at trial.

...

[29] For the reasons set out above, I find the Deputy Judge erred in law, and that the six‑year limitation under s. 17 of the RPLA applies to the claim in this case.

[30] This finding subsumes the second issue in the appeal. That is, given my conclusion that the six‑year limitation applies, the Appellant’s full claim of $21,600.00, dating back to October of 2016 remains intact and is not foreclosed or attenuated by a limitation.

Real Property Limitations Act, R.S.O. 1990, c. L.15

4 No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. R.S.O. 1990, c. L.15, s. 4.

5 (6) Where a person is in possession or in receipt of the profits of any land, or in receipt of any rent as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom that person claims, to make an entry or distress, or to bring an action to recover the land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy was received, whichever last happened. R.S.O. 1990, c. L.15, s. 5 (6).

(...)

17 (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent. R.S.O. 1990, c. L.15, s. 17 (1).

Lopera v. Margosutjahjo, 2020 ONSC 7436 (CanLII)

[14] The Act contains no limitation period for the collection of arrears, although the legislation does have limitation periods for other remedies. For example, pursuant to s. 69 there is a limitation on how long after a notice to terminate the landlord can seek an order terminating the tenancy (30 days), but s. 69(3) says this does not apply if the application is regarding a failure to pay rent. As well, s. 29(2) puts a one-year limitation on applications with respect to the obligation to maintain. In other words, the absence of a limitation period concerning claims for arrears of rent is not a void that should be filled with the doctrine of laches but a legislative choice.