Court File and Parties
CITATION: Brydges v. Johnson, 2017 ONSC 7410
DIVISIONAL COURT FILE NO.: DC-17-22-00 DC-17-23-00
DATE: 2017 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(JUSTICE IVAN S. BLOOM)
BETWEEN:
Ramona Brydges Plaintiff (Respondent in Appeal)
James B. Pietrangelo, for the Respondent
- and -
David Johnson and Alice Parker Defendants (Appellants in Appeal)
Self-Represented
HEARD: December 8, 2017
ENDORSEMENT
I. INTRODUCTION
[1] This matter arises out of a landlord and tenant dispute between the Appellants who were formerly tenants, and the Respondent who was their landlord.
[2] This is an appeal from the judgment of Deputy Judge Kelertas of the Small Claims Court dated January 30, 2017, and his costs judgment dated March 14, 2017.
[3] The trial judge awarded the Plaintiff $16,822.11 for rental arrears and for the cost of repairs to the rented premises. His costs award was $6,440.00.
II. ISSUES
[4] The Appellants raise three issues. First, they argue that the trial judge was without jurisdiction, because the Landlord and Tenant Board had exclusive jurisdiction over the rental and damage claims. Second, the Appellants contend that the trial judge was without jurisdiction on the rental arrears issue, because the Respondent landlord’s use of a Form N4 Notice to End a Tenancy Early for Non-Payment of Rent conferred exclusive jurisdiction on the Board. Third, the Appellants argue that the trial judge’s award of costs to the Respondent was excessive.
III. ANALYSIS
[5] The trial judge had addressed in a ruling on jurisdiction on January 8, 2016 the first issue. That ruling was appealed to this court by the Appellants. Justice Donohue in her judgment of June 24, 2016 dismissed that appeal.
[6] The Appellants did not appeal Justice Donohue’s judgment. I have no jurisdiction to sit in appeal from that judgment. Moreover, I will not allow a collateral attack on it. Further, the issue of jurisdiction the Appellants seek to raise is res judicata as a result of Justice Donohue’s judgment.
[7] On the second issue the Appellants contend that only the Board had jurisdiction to consider the rental arrears claim.
[8] The following provisions of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ( the RTA ) are relevant to this point:
Notice by Landlord Before End of Period or Term
Non-payment of rent
59 (1) If a tenant fails to pay rent lawfully owing under a tenancy agreement, the landlord may give the tenant notice of termination of the tenancy effective not earlier than,
(a) the 7th day after the notice is given, in the case of a daily or weekly tenancy; and
(b) the 14th day after the notice is given, in all other cases. 2006, c. 17, s. 59 (1).
Contents of notice
(2) The notice of termination shall set out the amount of rent due and shall specify that the tenant may avoid the termination of the tenancy by paying, on or before the termination date specified in the notice, the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement as at the date of payment by the tenant. 2006, c. 17, s. 59 (2).
Notice void if rent paid
(3) The notice of termination is void if, before the day the landlord applies to the Board for an order terminating the tenancy and evicting the tenant based on the notice, the tenant pays,
(a) the rent that is in arrears under the tenancy agreement; and
(b) the additional rent that would have been due under the tenancy agreement as at the date of payment by the tenant had notice of termination not been given. 2006, c. 17, s. 59 (3).
Application by Landlord – After Notice of Termination
Application by landlord
69 (1) A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act or the Tenant Protection Act, 1997. 2006, c. 17, s. 69 (1).
Same
(2) An application under subsection (1) may not be made later than 30 days after the termination date specified in the notice. 2006, c. 17, s. 69 (2).
Exception
(3) Subsection (2) does not apply with respect to an application based on the tenant’s failure to pay rent. 2006, c. 17, s. 69 (3).
Application
87 (1) A landlord may apply to the Board for an order for the payment of arrears of rent if,
(a) the tenant has not paid rent lawfully required under the tenancy agreement; and
(b) the tenant is in possession of the rental unit. 2006, c. 1
Board
168 (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French. 2006, c. 17, s. 168 (1).
Board’s jurisdiction
(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act. 2006, c. 17, s. 168 (2).
Form of application
185 (1) An application shall be filed with the Board in the form approved by the Board, shall be accompanied by the prescribed information and shall be signed by the applicant. 2006, c. 17, s. 185 (1).
[9] The Respondent served on the Appellants a Form N4 Notice to End a Tenancy Early for Non-Payment of Rent while the Appellants still were in possession of the rented premises. The Appellants vacated the premises on February 5, 2010. The Claim in this matter was issued on March 4, 2010.
[10] The Appellants contend that based on s. 168 (2) of the RTA once the Respondent had served the N4 Notice while the Appellants were in possession of the rented premises, the Board had exclusive jurisdiction, even after the Appellants vacated the premises.
[11] Respectfully, I reject this argument. In my view s. 87 of the RTA is determinative of the issue. The Respondent, as a result of s. 87(1)(b), could no longer have resort to the Board by application for arrears of rent after the Appellants had vacated the premises. Therefore, s. 168 (2) was not a bar to the jurisdiction of the Small Claims Court to hear the claim brought by the Respondent on March 4, 2010. Since the Board did not have jurisdiction, the courts did.
[12] Further, an application under s. 87 for arrears of rent is made by virtue of s. 185 (1) by way of Form L9. The Form N4 notice could have been the basis for an application under s. 69 of the RTA to terminate a tenancy and evict a tenant; that type of application is made pursuant to s. 185 (1) by Form L1 styled Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes. That type of application was never made in this case.
[13] I address now the costs issue. The Appellants argue that the costs award at trial was unreasonable and plainly wrong. They further argue that the trial judge took into account an offer of settlement from the Plaintiff that they did not receive.
[14] The trial judge exceeded the 15% of the claim limit prescribed by s. 29 of the Courts of Justice Act, which limit is to be applied in the absence of unreasonable conduct to be penalized. The 15% would have been $3750.00; the Appellants are not contesting the addition of disbursements.
[15] The trial judge awarded $6000.00 (as well as the $440.00 in disbursements) in the exercise of his discretion, and based on “considering all of the circumstances set out above, the factors to be taken into account by the Court…including the complexity of the proceeding, the conduct of the parties, and the principle of indemnity…and the provisions of the Rules…that encourage compromise, early settlement, and proportionality of response.”
[16] In my view his costs award was neither unreasonable nor plainly wrong. Further, the question of whether the offer was received by the Appellants was one of fact, and the trial judge’s finding that it was received was not demonstrated by the Appellants to be a palpable and overriding error.
[17] I, therefore, dismiss the appeal at bar.
IV. COSTS
[18] If the parties cannot agree on the costs of this appeal, I will receive written submissions of not more than 3 pages, excluding a bill of costs. The Respondent shall serve and file her submissions within 14 days from the release of this endorsement. The Appellants are to serve and file their submissions within 14 days from service of the Respondent’s submissions. There shall be no reply.
BLOOM J.
Released: December 11, 2017
CITATION: Brydges v. Johnson, 2017 ONSC 7410
DIVISIONAL COURT FILE NO.: DC-17-22-00 DC-17-23-00
DATE: 2017 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(JUSTICE IVAN BLOOM)
BETWEEN:
Ramona Brydges Plaintiff (Respondent in Appeal)
- and -
David Johnson and Alice Parker Defendants (Appellants in Appeal)
ENDORSEMENT
BLOOM J.
Released: December 11, 2017