CITATION: Efrach v. Cherishome Living, 2015 ONSC 472

DIVISIONAL COURT FILE NO.: 440/14 DATE: 20150121

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

GAD EFRACH, DEBBIE EFRACH AND HELEN KROLL

Appellants

(Plaintiffs)

– and –

CHERISHOME LIVING

Respondent

(Defendant)

Mark M. Persaud, for the Appellants

Martin P. Zarnett, for the Respondent (Defendant)

HEARD at Toronto: January 21, 2015

C. HORKINS J. (ORALLY)

1This is an appeal from the order of Deputy Judge A. McNeely dated September 5, 2014. On motion by the defendant, the Deputy Judge dismissed the claim because the essential character of the claim was within the exclusive jurisdiction of the Landlord and Tenant Board, pursuant to the Residential Tenancies Act.

2The relevant background is as follows. The appellant is a residential tenant in a building and the defendant is the landlord. On October 23, 2012, the appellant issued a claim in Small Claims Court seeking $25,000 in damages. The claim was later amended on March 11, 2013. While the claim refers to three plaintiffs, in fact only one remains, and that is Debbie Efrach.

3The pleading is brief. The amended pleading states as follows:

On July 18 we returned from an 8 day vacation at approximately 10:00 p.m. We found that we have been robbed. Our front door was locked. The unit next to ours was vacant and unlocked. Someone came through the unlocked unit, climbed over the balcony and broke into our unit. We have lost all of our possessions. The property managers/owners should of kept the door unit locked. We are suing for negligence of Cherishome Living because the door being unlocked to Unit #PH9.

4This is a final order of a Deputy Small Claims Court Judge and there is a right of appeal. The sole ground of appeal is that the Deputy Small Claims Court Judge erred in law in her determination that the Small Claims Court has no jurisdiction and that exclusive jurisdiction rests with the Board .

5The jurisdiction of the Landlord and Tenant Board is set out in the Residential Tenancies Act. The Board has exclusive jurisdiction to determine all Applications under the Residential Tenancies Act with respect to all matters in which jurisdiction is conferred on it by the Residential Tenancies Act. The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under the Act.

6Where the Board has jurisdiction, the Small Claims Court has no jurisdiction because the jurisdiction of the Board is exclusive and not concurrent.

7The monetary jurisdiction of the Small Claims Court is $25,000 which is the same as the monetary jurisdiction of the Board.

8The Board’s jurisdiction also includes the authority under s. 30 of the Residential Tenancies Act to grant extensive relief including damages and any order that it considers appropriate. (See: Mejia v. Cargini, 2007 2801 Div. Ct.)

9The issue before the Deputy Judge was whether the exclusive jurisdiction of the Board was engaged in this case. The standard of review is correctness.

10The Deputy Judge correctly referred to and applied the test as set out by Perell J. in Mackie v. Toronto, 2010 ONSC 3801 at paras. 43-44. The Deputy Judge set out the test at para. 10 of her reasons:

The real test is that described at page 7 of the Luu case when it reviewed the reasoning of then Deputy Judge Bale and Justice Perell in relation to the Mackie v. Toronto decision. As Justice Perell put the point: “It doesn’t matter whether a tenant’s claim is for a cause of action ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. Rather, the court must determine the essential character of the dispute and, if having done so, the court finds that the subject matter is expressly or inferentially governed by the statute, then the claim is within the exclusive jurisdiction of the Board.

11Having correctly set out this test she then applied it as follows at para. 11:

Given that very cogent reasoning, the task before me is to decide whether the acts or omissions alleged to constitute the landlord’s “negligence” here are in substance or “essential character” a complaint that the landlord breached its obligations to the tenant arising by statute and/or the lease relationship, to ensure quiet enjoyment and ensure building safety for occupants and their property. I find that in substance and “essential character” the plaintiff’s claim for loss of property due to failure to secure the premises adjacent to the plaintiff is in substance a complaint of that nature and is a “matter” assigned to the exclusive jurisdiction of the Board. I grant the defendant’s motion and dismiss the action for want of jurisdiction on that basis.

12On this appeal, counsel for the appellant argues that the Deputy Small Claims Court Judge, erred in her application of the test to the facts. Specifically, he says that she failed to characterize this as a tort or negligence claim that seeks damages and that such claims clearly fall outside the exclusive jurisdiction of the Landlord and Tenant Board.

13This argument is contrary to the test in Mackie. It is not the label or title that one attaches to a claim that decides the jurisdiction issue. As Perell J. directs, the Court must consider the essential character of the dispute. To say that the plaintiff advances a tort claim or a claim in negligence, merely identifies a particular cause of action. It does not provide any insight into the essential character of the dispute.

14The Deputy Judge correctly identified the test and then applied it to the case. The essential character of the claims is captured by the exclusive jurisdiction of the Board. This is clear from s. 29(1) of the Residential Tenancies Act. It states in part as follows:

29(1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20(1) or section 161.

15Subsection 20 (1) of the Act states as follows:

A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.

16Section 29(1.3) of the Act is also relevant. It states as follows:

A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

3. An order determining that the landlord, superintendent or agent of the landlord has substantially interfered with the reasonable enjoyment of the rental unit or residential complex for all usual purposes by the tenant or a member of his or her household.

17In summary, the Deputy Small Claims Court Judge gave detailed and cogent reasons. She correctly set out the test and applied it.

18The appeal is therefore dismissed.

19The appellant seeks alternative relief that I will now address. In particular, she asks that I issue an order allowing her to amend her claim to $36,000 and proceed with it in the Superior Court of Ontario. I reject this alternative relief.

20The appellant commenced her action in the Small Claims Court after the expiry of the one year limitation period in s. 29(2) of the Residential Tenancies Act. This Court’s jurisdiction to entertain her claim is governed by s. 207(2) of the Residential Tenancies Act which states as follows:

A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction 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.

21Since the one year limitation period for making a claim to the Landlord and Tenant Board had already expired when the appellant issued her claim in the Small Claims Court, she had no right to seek relief from the Landlord and Tenant Board. It follows pursuant to s. 207(2) that since the claim was statute barred before the Board, it is likewise barred from being transferred to the Superior Court of Justice, since this Court can only exercise powers “that the Board could have exercised if the proceeding had been before the Board”.

COSTS

22I have endorsed the Appeal Book, “The appeal is dismissed for reasons delivered orally today. The respondent seeks costs. I order the appellant Debbie Efrach to pay the respondent its costs that I fix at $2,000 all inclusive. This is fair and reasonable in the circumstances. The appellant has 90 days to pay the costs.”

___________________________ C. HORKINS J.

Date of Reasons for Judgment: January 21, 2015

Date of Release: January 26, 2015

CITATION: Efrach v. Cherishome Living, 2015 ONSC 472

DIVISIONAL COURT FILE NO.: 440/14 DATE: 20150121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

GAD EFRACHS, DEBBIE EFRACHS AND HELEN KROLL

Appellants

(Plaintiffs)

– and –

CHERISHOME LIVING

Respondent

(Defendant)

ORAL REASONS FOR JUDGMENT