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CITATION: Kipiniak v. Dubiel, 2014 ONSC 1344

DIVISIONAL COURT FILE NO.: 81/13

DATE: 20140303

RE: Andrew Kipiniak, Appellant

v. -

Ewa Dubiel, Respondent

AND RE: Andrew Kipiniak, Appellant

v. -

Kinga Dubiel, Respondent

BEFORE: Mr. Justice H. J. Wilton-Siegel

COUNSEL: Andrew Kipiniak, acting in person

Peter Kary, for the respondents

HEARD: November 29, 2013

Overview

1The appellant Andrew Kipiniak (the “appellant” or “Kipiniak”) appeals an order dated January 21, 2013 of Deputy Judge Wheatley of the Toronto Small Claims Court (the “Order”) addressing various claims asserted by the appellant against Ewa Dubiel (“Ewa”) and her daughter Kinga Dubiel (“Kinga”) as set out in seven separate actions.

2By an order dated June 8, 2010, three claims against Kinga totaling $1,625.85 were consolidated into action SC-09-81771. These claims are for $1,200 (parking charges), $147.60 (unpaid hydro bill) and $278.25 (locksmith fees). Two further claims for $648 (eviction fees) and $25,000 (rent) are also asserted against Kinga. Two claims are asserted against Ewa for $800 (parking) and $22,000 (rent and refund of certain payments).

3The Order dismissed all of the claims against Ewa and Kinga other than the claim of $147.60, which was acknowledged by Kinga and for which judgment was granted. The appellant appeals the dismissal of each of his claims and seeks further relief in respect of the judgment in his favour.

Matters Pertaining to the Right of Appeal

4The appeal is brought under paragraph 31(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), which provides that an appeal to the Divisional Court lies in respect of an action for the payment of money in excess of a prescribed amount. Section 2(1) of Regulation 626/00 thereunder (the “Regulation”) provides that the current monetary threshold applicable to an appeal is $2,500.

5There is no basis in the language of the Act or the Regulation that would tie the applicable threshold to the date of commencement of a small claims court action, as the appellant suggests, rather than the date of the notice of appeal. Nor is there any evident policy reason for interpreting the Act in this manner.

6Accordingly, there is no right of appeal in respect of the three claims against Kinga consolidated into action SC-09-81771, in respect of the claim against Kinga for $648 (eviction fees), being action SC-10-100597, or in respect of the claim against Ewa for $800 (parking), being action SC-09-81772. The appeal of these claims is therefore dismissed for this reason, as well as, in respect of certain of these claims, for the additional reasons set out below. This leaves only the largest claims asserted against Kinga and Ewa to be considered further.

7In addition, as the Order granted judgment in favour of the appellant in respect of the unpaid hydro claim in the amount of $147.60, there is no further relief that can be ordered by this Court. The appellant should inform himself of realization proceedings available to him if this judgment remains unpaid.

Preliminary Matter

8The appellant argued that he was denied natural justice by the decision of the Deputy Judge that it was necessary to remove many documents attached to his pleadings for use as evidence at the trial. The Deputy Judge proceeded in this manner based on a proper distinction between pleadings and evidence and a finding that the documents attached to the appellant’s pleadings were not in evidence. In any event, however, the Court invited the appellant to demonstrate any prejudice to him that resulted from the actions of the Deputy Judge. He was unable to demonstrate any such prejudice. Accordingly, this ground of appeal is dismissed.

Standard of Review

9The standard of review on an appeal from an order of a deputy judge of the Small Claims Court is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19, 25, 27-28. On this standard, a decision will be interfered with only if the trial judge made an error of law or exercised his or her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error of fact.

Factual Background including Material Factual Determinations of the Deputy Judge

Factual Background

10The relevant facts are set out in detail by the Deputy Judge in reasons dated January 21, 2013 and need not be repeated here. The claims pertain to the occupation of both Ewa and Kinga of a condominium unit owned by the appellant located at 22 Allanhurst Drive, Unit 502 (the “Condo”).

11It is agreed that Kinga was a tenant under a tenancy agreement (the “Tenancy Agreement”) and that she lived in the Condo from 1999 to May 2010. It is also agreed that Ewa lived in another condominium with the appellant from at least 2002 until she moved into the Condo on or about December 1, 2005. She continued to reside in the Condo until May 2010.

12The nature of the relationship between Ewa and Kipiniak is disputed by the parties. In a letter dated May 18, 1999 to the co-operative corporation that owns the building in which the Condo is located (the “Co-op”), the appellant described his relationship with Ewa as a common law relationship. The appellant denied this at trial and on appeal. He says that he suffered a stroke in 1999 and that Ewa was his caregiver after she moved in during 2001. He says the letter was necessary to allow Ewa and Kinga to live in the Condo.

13The Deputy Judge could reasonably conclude on a balance of probabilities that the appellant and Ewa lived in a common law relationship prior to her taking up residence in the Condo in 2005 based on the foregoing evidence as well as the evidence regarding the nature of the alleged contract pertaining to her departure from the appellant’s condominium unit. In particular, the Deputy Judge was entitled to disregard the appellant’s oral testimony given the absence of any other supporting evidence and the credibility issue presented by his letter dated May 18, 1999 to the Co-op and his explanation thereof.

Claims Against Kinga

14The largest claim against Kinga is in the amount of $25,000, representing occupation rent from April 1, 2008 to May 3, 2010.

15The appellant commenced eviction proceedings against Kinga before the Landlord and Tenant Board (the “Board”) under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), which resulted in an eviction order dated March 7, 2008 (the “Board Order”) requiring Kinga to pay $10,000 as arrears of rent and terminating her tenancy. Kinga filed a request for a review of the Board Order, which was not heard until 2010. By order dated April 9, 2010 (the “Review Order”), the Board Order was confirmed. Kinga moved out of the Condo on or about May 3, 2010. Kipiniak commenced this claim on May 4, 2010.

16The Deputy Judge found that Kinga was a tenant and that rent remained unpaid for the period between April 1, 2008 and May 3, 2010. However, the Deputy Judge held that she lacked jurisdiction in this matter because s. 207(3) of the RTA extinguished the appellant’s claim against Kinga in excess of $10,000 upon the issue of the Board Order. Section 207(3) provides that “[i]f a party makes a claim in an application for payment of a sum equal to or less than the Board’s monetary jurisdiction, all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order”.

17This is an issue of law for which the standard of review is correctness.

18The Board Order terminated Kinga’s tenancy as of March 7, 2008 and ordered the payment of $10,000 for arrears of rent and compensation accrued between December 1, 2006 and March 30, 2008. “Compensation” refers to occupation rent awarded under s. 86 of the RTA, which provides as follows: “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.”

19As the amount payable by Kinga under the Tenancy Agreement was calculated by the Board to be $16,227.92 and the monetary jurisdiction of the Board at the time was $10,000, the Board Order properly reduced the amount owing to $10,000 on the basis that Kipiniak had abandoned any claim to arrears of rent in excess of $10,000. Pursuant to s. 207(3) of the RTA, Kipiniak’s claim to the excess of the arrears was extinguished upon the issue of the Board Order.

20The remaining issue, however, is whether Kipiniak’s claim for compensation under s. 86 of the RTA for the period after March 30, 2008 was also thereby extinguished. The Deputy Judge held that it was, on the basis that his application before the Board sought payment of rent up to the date that the tenant moved out. There does not appear to be any case law on this issue. However, I do not think the Deputy Judge was correct in her conclusion for the following reasons.

21First, while it is correct that the appellant applied for an order addressing rent up to the date that the appellant moved out of the Condo, the Board Order addressed rent only up to March 30, 2008. Accordingly, s. 207(3) only extinguished the appellant’s rights up to that date. There is nothing in the Board Order that purports to extinguish the appellant’s rights after that date.

22As a related matter, the appellant’s claim for rent in his application to the Board covered the period December 31, 2006 to October 31, 2007. Any extinguishment of rent above the monetary threshold of the Board at the time of his application has to be understood in the context of this claim. Checking off a box on an application form with the innocuous and very general language that a landlord was applying to collect “the rent the tenant owes me up to the date that they [sic] move out of the rental unit” cannot be determinative of a landlord’s entire right to compensation under s. 86 of the RTA in the absence of much more explicit language to that effect.

23Second, the Review Order does not operate to extinguish any claim of the appellant for the period after March 30, 2008. The effect of the Review Order was simply to confirm the Board Order pursuant to the jurisdiction provided to the Board under s. 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, and r. 29.19 of the Board’s Rules of Practice.

24Third, and most important, s. 87(3) of the RTA provides for a separate application for an order for the payment of compensation under s. 86 of the RTA for the use and occupation of a rental unit after a notice of termination has taken effect. Accordingly, at any time during Kinga’s overholding, prior to the Review Order, the appellant could have brought a separate application before the Board for the payment of compensation pursuant to s. 87(3).

25As long as Kinga was an occupant of the Condo, any such application was required to be made to the Board except to the extent that a claim exceeded the monetary limits of the Board’s jurisdiction. However, as the appellant points out, his action was commenced subsequent to Kinga’s departure from the Condo. Accordingly, the Small Claims Court had jurisdiction with respect to his claim, irrespective of its quantum. I also note that, at the time the action was commenced, the limit for Small Claims Court actions had been increased to $25,000. Such claim would, however, be subject to the two-year limitation period provided for in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act”).

26The appellant did not bring a s. 87 claim for occupation rent accrued after March 30, 2008 before the Board and, accordingly, it was never adjudicated by the Board. Thus, the Deputy Judge erred, as a matter of law, when she concluded that the matter had been adjudicated by the Board.

27Accordingly, I conclude that the appellant is entitled to the occupation rent that accrued and became payable during the two-year period May 3, 2008 to May 3, 2010. Such rent totals $23,000. The appeal of the Order is therefore granted to the extent that an order shall issue that Kinga is obligated to pay the appellant forthwith the amount of $23,000.

28I would also note that the finding of the Board that the appellant was “substantially the author of his own misfortune” in respect of the delay of the review proceedings before the Board is not relevant for the purposes of this issue. Ultimately, the Review Order confirmed the termination of Kinga’s tenancy as of March 7, 2008. She was not entitled to live rent free during this period, notwithstanding any delay on the part of the appellant in proceeding with the review.

29The Deputy Judge also held that the appellant’s claim against Kinga for parking in the amount of $1,200 was extinguished under s. 207(3) of the RTA by the Board Order. I agree with the conclusion of the Deputy Judge that the claim relates to “rent” under the RTA. I do not agree that this claim was extinguished under s. 207(3) of the RTA, although, for the following reasons, I agree with the result, in addition to the fact that there is no right of appeal for this claim as it falls below the monetary threshold.

30Essentially, this is a claim for compensation under s. 86 of the RTA at the monthly rate of $30. It was commenced on or about March 13, 2009. The appellant had a claim for compensation under s. 86 of the RTA in respect of this component of rent on the basis of the reasoning set out above. However, at the time of the commencement of the action, Kinga was in occupation of the Condo. I am not persuaded that the events in September 2008, as a result of which Kinga was evicted under an order of the Superior Court and then returned pursuant to a Board order, affect this conclusion. As a result of the Board proceedings, Kinga continued to reside in the Condo after the termination of her tenancy, pending the review of the Board Order. Notwithstanding the determination in the Review Order, I think that there is serious reason to question the validity of the eviction of Kinga pursuant to the Superior Court order, as she did not derive her tenancy from any interest of Ewa in the Condo.

31 Section 168(2) of the RTA provides that “[t]he Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred by this Act”. As long as a tenant is in possession of a rental unit, s. 87 of the RTA gives exclusive jurisdiction regarding a claim for compensation under s. 86 to the Board. Further, and in any event, s. 207(2) provides that the appellant could commence an action in the Small Claims Court only if the claim exceeded the monetary jurisdiction of the Board. This claim did not. Accordingly, to the extent it is relevant, I conclude for different reasons from those of the Deputy Judge that Kipiniak’s appeal of the Order in respect of this claim was properly dismissed.

32As mentioned above, there are two separate claims against Kinga for sheriff’s fees totaling $634. The appellant paid these fees in the course of abortive attempts to evict Kinga. He was unable to get a refund even though they were not effective. There is no right of appeal for these claims because they fall below the monetary threshold, but I would also have denied the appellant’s claim with respect to these fees for the following reasons.

33The first fee pertained to an eviction that was stayed by a Board order on April 8, 2008 as a result of Kinga’s request for a review of the Board Order. The Deputy Judge correctly held that this matter was the subject of the proceedings before the Board and therefore beyond the jurisdiction of the Small Claims Court. The appellant could have requested these fees in the subsequent Board proceedings. The Deputy Judge also correctly held that this claim was statute-barred under the Limitations Act.

34The second fee pertained to an eviction in September 2008. The Deputy Judge correctly held, among other things, that this fee pertained to the proceeding in the Superior Court in which Ewa, rather than Kinga, was a party. The Superior Court order was directed to Ewa and any other party deriving an interest in the Condo through Ewa. Therefore, the appellant cannot claim this cost against Kinga. Any costs should have been obtained in the Superior Court action at the time of obtaining the writ of possession or otherwise.

Claims Against Ewa

35The largest claim against Ewa is the appellant’s claim for $22,000 in respect of two related matters: (1) $10,000 as a refund of payments made to Ewa in 2006; and (2) $12,000 as rent for the period from December 1, 2005 to November 30, 2006.

36The appellant bases his position on an alleged agreement set out in a letter dated June 30, 2005 contemplating rent-free occupation of the Condo, which was supplemented by a subsequent oral promise to pay $1,000 per month for twelve months. The appellant says Ewa breached this agreement entitling him to a refund of the $10,000 paid to Ewa and to rent for the twelve-month period.

37As mentioned, the Deputy Judge found that the appellant and Ewa were in a common law relationship for years and that she was asked to move out. The Deputy Judge found that any agreement between these parties concerning support was a “support agreement” and therefore a matter of family law for which the Small Claims Court had no jurisdiction. Indeed, Ewa did commence an action in the Superior Court seeking support or the Condo. Accordingly, the Deputy Judge concluded that the Small Claims Court lacked jurisdiction to address any of the claims against Ewa.

38Given the finding of the Deputy Judge that these parties had been in a common law relationship, the Deputy Judge did not err in finding that the agreement between the parties, upon which the appellant bases his claim, was a “support agreement” for which the Small Claims Court lacked jurisdiction. Accordingly, the Deputy Judge correctly held that she did not have the jurisdiction to address the appellant’s claims against Ewa in respect of the two matters comprising the appellant’s claim for $22,000.

39Moreover, there is no rental agreement, oral or written, upon which to base the appellant’s claim for rent in the amount of $12,000. The appellant says he is not claiming rent as such but rather the loss of income from the Condo in terms of foregone market rental. However, there is no evidence of any such foregone income and no explanation of how this would have been feasible given Kinga’s tenancy during the period December 1, 2005 to November 30, 2006.

40In addition, the Deputy Judge correctly held that the claims for a refund of the $10,000 paid by the appellant, for rent of $12,000 and for any parking charges prior to March 13, 2007 were statute-barred under the Limitations Act. The Superior Court of Justice does not constitute an “independent third party” for purposes of s. 11 of the Limitations Act, such that an action before the Court will extend the time of commencement of a limitation period in respect of another action. In addition, the Minutes of Settlement in the Superior Court action commenced by Ewa were dated February 6, 2008, more than two years from the date of commencement of the claim for $22,000 on April 14, 2010.

41For completeness, I note that the appellant may have had a viable claim for parking charges incurred by Ewa for the two-year period prior to commencement of this claim on a quantum meruit basis. However, as discussed above, there is no right of appeal in respect of this claim.

Conclusion

42Based on the foregoing, the appellant’s appeals in respect of the Order are dismissed in their entirety except in respect of his claim against Kinga for occupation rent, which is granted to the extent of $23,000. The parties have thirty days to provide written costs submissions not to exceed five pages in length. Any party seeking costs must also submit a costs outline prepared in accordance with the Rules of Civil Procedure.

Wilton-Siegel J.

Date: March 3, 2014

Kipiniak v. Dubiel, 2014 ONSC 1344

Case Summary

Overview

Matters Pertaining to the Right of Appeal