The Estate of Letestu, deceased, by its Litigation Guardian, Letestu v. Ritlyn Investments Limited

[Indexed as: Letestu Estate v. Ritlyn Investments Ltd.]

Ontario Reports

Court of Appeal for Ontario

LaForme, van Rensburg and Huscroft JJ.A.

June 1, 2017

138 O.R. (3d) 651 | 2017 ONCA 442

Case Summary

Landlord and tenant — Residential tenancies — Repair

Plaintiff bringing action for damages of $500,000 arising from slip and fall on damaged carpet in residential rental unit — Motion judge erring in dismissing action on basis that it fell within exclusive jurisdiction of Landlord and Tenant Board — Residential Tenancies Act not giving board exclusive jurisdiction over all claims of non-repair against landlord — Board having jurisdiction over tenant's claim for damages where essential character of claim is for non-repair and claim is within board's monetary jurisdiction — Claim exceeding monetary jurisdiction of board — One-year limitation period for application to board not applying to actions in Superior Court for non-repair — Residential Tenancies Act, 2006, S.O. 2006, c. 17.

The plaintiff estate brought an action in the Superior Court of Justice for damages of $500,000 for injuries suffered by the deceased when he allegedly slipped and fell over a damaged carpet in his residential rental unit. The action was commenced 23 months after the alleged slip and fall. The motion judge dismissed the action on the basis that the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board over the subject matter and was outside the one-year limitation period prescribed under s. 29(2) of the Residential Tenancies Act, 2006. The plaintiff appealed.

Held, the appeal should be allowed.

The Act does not give the board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the board has jurisdiction over a tenant's claim for damages where the essential character of the claim is for non-repair and the claim is within the board's monetary jurisdiction. Because the plaintiff claimed damages exceeding the board's monetary jurisdiction, the plaintiff was entitled to bring the action in the Superior Court.

The one-year limitation period prescribed in s. 29(2) of the Act for applications to the board does not apply to actions before the Superior Court for non-repair. The two-year limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B applied. The action was not statute-barred.

Efrach v. Cherishome Living, 2015 ONSC 472, consd

Other cases referred to

Kaiman v. Graham, 2009 ONCA 77

Mackie v. Toronto (City), 2010 ONSC 3801

Statutes referred to

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 19

Occupiers' Liability Act, R.S.O. 1990, c. O.2

Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 20(1), 29(1), (2), 168(2), 207(1), (2)

Trustee Act, R.S.O. 1990, c. T.23, s. 38(3)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

Proceedings

APPEAL from the judgment of Sloan J., 2016 ONSC 6540 (S.C.J.) dismissing an action.

Counsel:

Barry A. Percival, Q.C., Daniel Zacks and Joel P. McCoy, for appellant.

Kenneth J. Raddatz and Kieran C. Dickson, for respondent.

Decision

BY THE COURT:

Overview

[1] In December 2011, the appellant estate commenced an action for damages for injuries the deceased suffered when he allegedly slipped and fell over a damaged carpet in his residential rental unit. The action claims $500,000 in damages from the respondent, the owner and manager of the apartment building. It was commenced 23 months after the alleged slip and fall.

[2] The respondent, on the eve of trial, moved under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike the claim on the basis the Superior Court had no jurisdiction to hear it.

[3] The motion judge dismissed the estate's action, after concluding the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board (the "board") over the subject matter, and was outside the one-year limitation period prescribed under s. 29(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act"). The estate appeals.

[4] For the reasons that follow, we conclude the motion judge erred in law in his determination that the Superior Court lacks jurisdiction over the claim because it was commenced after the one-year limitation period under the Act had expired. As we explain, a plain reading of the relevant statutory provisions leads to the contrary conclusion.

Analysis

(1) The Superior Court has jurisdiction over the claim

[5] A plain reading of the four relevant provisions of the Act demonstrates the Act does not grant the board exclusive jurisdiction over all claims of non-repair against a landlord. In this case, the Superior Court has jurisdiction.

[6] Section 29(1) of the Act provides for a tenant or former tenant of a rental unit to apply to the board for a variety of orders, including that the landlord breached an obligation under s. 20(1) (the landlord's duty to repair).

[7] Section 168(2) provides that 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".

[8] Section 207(1) provides that the board may, "where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court".[^1]

[9] Section 207(2) of the Act provides that "a person entitled to apply under this Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in [court] for an order requiring the payment of that sum and . . . 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".

[10] Thus, the Act does not grant the board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the board has jurisdiction over a tenant's or former tenant's claim for damages (as well as other claims within the board's authority) where the "essential character of the claim" is for non-repair and within its monetary jurisdiction: Mackie v. Toronto (City), 2010 ONSC 3801 (S.C.J.). The board's jurisdiction, however, is not exclusive by virtue of s. 207(2): Kaiman v. Graham, 2009 ONCA 77, at para. 15.

[11] Because the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the board, there was no question that the appellants were entitled to commence their proceeding in the Superior Court. And, through the operation of s. 207(2), the court would be able to make any order the board could have made in addition to any relief it could grant in a court proceeding.

[12] It is unnecessary for the purpose of this appeal to decide whether other factors would have taken the claim outside the jurisdiction of the board had the damages claimed been less than the monetary limit for the Small Claims Court -- including (i) the fact that the action asserted claims under the Occupiers' Liability Act, R.S.O. 1990, c. O.2 and (ii) the status of the appellant as the estate of a deceased tenant. See, for example, the discussion in Mackie, at paras. 43-44, as to the effect of claims under other legislation on the "essential character" of the claim, which in each case is determined based on the factual context.

(2) The limitation period for applications to the board does not apply

[13] The motion judge concluded that, although the estate's claim exceeded the monetary jurisdiction of the board, the action had to be commenced within the one-year limitation period for applications to the board under the Act (s. 29(2)) before the court could assume jurisdiction.

[14] In arriving at this conclusion, the motion judge followed Efrach v. Cherishome Living, 2015 ONSC 472 (Div. Ct.), a decision of a single judge of the Divisional Court upholding an appeal from the Small Claims Court. The appeal judge in Efrach agreed with the deputy judge's characterization of the claim as one of non-repair and held that the board had exclusive jurisdiction. In the part of her decision that is relevant here, she refused leave to amend the claim to permit damages exceeding the monetary jurisdiction of the board, and to transfer the action to the Superior Court. She reasoned that, after the expiry of the one-year limitation period for making a claim to the board, the claim could not be transferred to the Superior Court since that court "can only exercise powers that the Board could have exercised if the proceeding had been before the Board": at para. 21.

[15] While we express no opinion on the result in Efrach, we disagree with the conclusion that the one-year limitation period for applications to the board applies to actions before the Superior Court for non-repair. The motion judge here erred in following the reasoning in Efrach and concluding that the court lacked jurisdiction over the action.

[16] There is simply no basis for importing the limitation period prescribed by the Act for applications to the board into an action of this kind. The limitation of actions is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B and, pursuant to s. 19, the limitation periods listed in the schedule to that Act (including s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 which requires a tort action by an estate to be commenced within two years of the deceased's death). As the action was commenced within two years of the deceased's death (and indeed within two years of the alleged slip and fall), there is no question of the expiry of any limitation period to bar the action.

[17] Accordingly, the Superior Court has jurisdiction over the action and the claims are not statute-barred.

Conclusion

[18] The appeal is allowed. Costs of the appeal to the appellant fixed at $10,000, inclusive of HST, plus disbursements in the amount of $3,987.76. Given the result, the appellant is awarded its costs of the motion below in the all-inclusive amount of $7,500.

Appeal allowed.

Notes

[^1]: The monetary jurisdiction of the Small Claims Court is $25,000.

[^2]: The claim was for damages resulting from a break in of the appellant's rental unit, allegedly by entry through an unoccupied and unlocked neighbouring unit.