Citation and Court Information
DIVISIONAL COURT FILE NO.: DC-18-0095-00
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. GORDON, LEDERER, FAVREAU JJ.
BETWEEN:
Anil Sharma and Neerja Sharma
Appellants
– and –
Manjit Kaur Sandhu
Respondent
Landlord and Tenant Board
Self-represented
Shikha Sharda
Brian Blumenthal for the Landlord and Tenant Board
HEARD at Brampton: October 27, 2020 (by videoconference)
DECISION ON APPEAL
GORDON J.
Overview
1This appeal concerns an order of the Landlord and Tenant Board (“LTB”) dismissing the appellants’ s. 57 application in which it was alleged that the respondent provided them with a notice of termination under s. 49 of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (“RTA”) in bad faith.
2The appellants applied to the LTB for a review of the order. That review was similarly unsuccessful. The appellants appeal both orders.
Background Facts
3The appellants were tenants occupying property owned by the respondent under the terms of a lease that expired on April 30, 2017. On January 21, 2017 the respondent’s lawyer sent the appellants an email stating that the lease agreement would expire on April 30, 2017 and that the respondent had no intention of renewing it. The email stated that the appellants were required to vacate the property on April 30 and reminded the appellants that the respondent was legally permitted to affix a “For Sale” sign on the property 90 days before the expiry of the lease.
4The appellants attempted to negotiate a renewal of the lease without success. They were able to find alternate accommodations and moved from the rental unit on March 31, 2017.
5In December of 2017 the appellants came to learn that the respondent had not sold the property, but rather had leased it to another tenant. Based on this information, the appellants brought an application under s. 57 alleging that they had been given a notice to vacate the property under s. 49 of the RTA and that the notice was given in bad faith. The application was commenced on June 21, 2018.
6In a decision dated November 13, 2018, the Landlord and Tenant Board dismissed the appellants’ application making the following finding:
- The limitation period in subsection 57(2) of the Act clearly states that no application may be brought more than one year after the tenant vacated. Because the limitation period is limited to the vacate date only and the Tenants vacated more than one year prior to filing the application, I am not satisfied the Tenants were entitled to file this application.
7The appellants promptly applied for a review of the decision. The review decision of the Vice-Chair of the LTB was released on December 12, 2018 and held, in part, as follows:
The wording of subsection 57(2) if the Act is very clear. A tenant must file their T5 application within one year of the date they moved out of the unit.
Subsection 3(1) of the Act states that the Act applies with respect to rental units in residential complexes despite any other Act.
Subsection 3(4) of the Act goes on to state that, if a provision in the Act conflicts with a provision in another Act (other than the Human Rights Code), the provisions in the Act apply.
Due to section 3 of the Act, the one year limitation period in the Act applies and the discoverability principle or the two year limitation period in the Limitations Act is not applicable to the T5 application.
8As a result, the Vice-Chair determined that the decision contained no serious error.
9These decisions form the subject of this appeal.
Jurisdiction
10Section 210(1) of the RTA provides that any person affected by an order of the Board may appeal the order to the Divisional Court, but only on a question of law.
11Accordingly, insofar as this appeal raises a question of law it is properly before this court.
Standard of Review
12The RTA provides that parties may appeal from an administrative decision of the LTB to the court and has therefore subjected the LTB to appellate oversight with appellate standards of review. As the RTA limits appeals to questions of law, the appellate standard of review is correctness. [See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65].
Analysis
Was the Application Brought in Time?
13The appellants determined that the respondent had leased the premises to another party in December of 2017. Their application to the LTB was commenced in June of 2018, several months after the one-year anniversary of their having vacated the premises. Their position is that the cause of action against the respondent was not discovered by them until December of 2017 and the one-year limitation provided by the RTA would only begin to run at that time. In support of their position they rely on sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24.
14I agree with the LTB that the application was not brought within the applicable limitation period.
15The appellants concede that their application was brought under s. 57(1)(b) of the RTA. Section 57 (2) of the RTA provides that no application may be made under s. 57(1) more than one year after the former tenant vacated the rental unit.
16Section 4 of the Limitations Act, 2002 provides generally that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 5 of that Act provides, among other things, that a claim is discovered on the day which the person making the claim knew or ought reasonably to have known that the damage had occurred.
17Clearly, the commencement of the limitation period in s. 57(2) of the RTA conflicts with the commencement of the limitation period in s. 4 and s. 5 of the Limitations Act, 2002.
18Section 3(4) of the RTA provides that if a provision of the RTA conflicts with the provision of another Act, the RTA applies. It follows that s. 57(2) of the RTA prevails over s. 4 and s. 5 of the Limitations Act, 2002.
19I am also not persuaded that the common law principle of discoverability has any application when considering s. 57 of the RTA.
20At para. 37 of Peixeiro v. Haberman 1997 325 (SCC), [1997] S.C.J. No. 31 the Supreme Court of Canada held that the discoverability rule is an interpretative tool for the construing of limitations statutes and ought to be considered each time a limitations provision is in issue. The court adopted the following passage from Fehr v. Jacob (1993) 1993 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):
…When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.
21Section 57(2) sets the time from which the clock runs from a precise event, namely, the date the tenant vacates the rental unit. The starting of the clock is in no way dependent upon the state of the tenant’s knowledge. It follows that the discoverability rule cannot be used as proposed by the appellants to extend the one-year period prescribed by the legislature.
Conclusion
22The appeal is dismissed. The Respondent shall be paid costs fixed at $4,000 all inclusive.
R.D. Gordon, J.
I agree _______________________________
Lederer, J.
I agree _______________________________
Favreau, J.
Released: October 28, 2020
CITATION: Sharma v. Sandhu, 2020 ONSC 6536
DIVISIONAL COURT FILE NO.: DC-18-0095-00
DATE: 2020-10-28
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.D., LEDERER, FAVREAU JJ.
BETWEEN:
Anil Sharma and Neerja Sharma
Appellants
– and –
Manjit Kaur Sandhu
Respondent
Landlord and Tenant Board
DECISION ON APPEAL
The Court
Released: October 28, 2020