CITATION: Kiselman v. Klerer, 2019 ONSC 6668

NEWMARKET COURT FILE NO.: CV-17-132819-00 and SC-16-11-00

DATE: 20191119

CORRECTED DATE: 20191212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

URI KISELMAN

Plaintiff/Appellant

– and –

JOEL KLERER, aka (Owner of I.O.F. Business Furniture Manufacturing Inc.), PAMELA KLERER and I.O.F. INTELLIGENT OFFICE FURNITURE

Defendants/Respondents

J.R. Forget, for the Plaintiff/Appellant

D. Krysik, for the Defendant/Respondent, Pamela Klerer

HEARD: November 14, 2019

REASONS FOR DECISION

Corrected Decision: The text of the original Reasons for Decision was corrected

on December 12, 2019 and the description of the correction is appended.

On appeal from the decision of Deputy Small Claims Court Judge S. Baker

dated September 5, 2017

MULLIGAN J.:

[1] The appellant, Uri Kiselman (Kiselman) appeals the motion decision of Deputy Small Claims Court Judge S. Baker, dated September 5, 2017. On a motion on notice, the learned deputy Small Claims Court judge dismissed the plaintiff’s claim for want of jurisdiction, as a matter that should have been dealt with by the Landlord and Tenant Board. In coming to his conclusion, the deputy judge provided detailed written reasons, reviewed the case law and noted:

There is a wealth of authority provided by the defendant to the effect that the Residential Tenancy Board is the forum to go to in a landlord/tenant dispute. They have the expertise and the protocol to deal with these matters.

The Kiselman Claim

[2] At issue was a claim brought by Kiselman as landlord against the defendants, arising out of a residential landlord and tenant case. Some eleven months after the tenant vacated the property, the landlord Kiselman brought a claim for $17,166.55 against the defendants. The items in that claim can be summarized as follows:

(a) Rent arrears - $2,650; and

(b) Damages as a result of tenants’ negligence –

(i) Yard repairs - $7,542.26;

(ii) Plumbing inspection report - $1,190;

(iii) Repair and restoration of basement - $1,100;

(iv) Repair and restoration of flooded area - $1,850;

(v) Replacement of various appliances - $1,446.29;

(vi) Handyman repairs - $500;

(vii) Inspection reports by electricians - $611;

(viii) Past due tenant bills - $227.

Position of the Landlord Appellant

[3] Kiselman, as appellant landlord, asked that the order dismissing the claim be set aside and a new trial ordered on the basis that the Small Claims Court judge applied the wrong test to determine jurisdiction, suggesting the proper test is:

(i) Are the damages “undue” or not?

(ii) Are the damages caused by the tenants themselves willfully or negligently?

(iii) When does the cause of action actually start?

[4] Further, setting out in its Notice of Appeal at para. 2(iii):

…upon vacating the premises, the Small Claims Court has sole jurisdiction since the parties were no longer in a landlord tenant relationship when the breach occurred, and that the damages are as a result of a cause of action on grounds other than willful or negligent, which is outside the jurisdiction of the Board.

Position of the Tenants

[5] As set out in its factum at para. 9:

The Respondent’s position is that the Landlord and Tenant Board (the “Board”) possesses exclusive jurisdiction to determine applications over which it has jurisdiction pursuant to s. 168(2) of the Residential Tenancies Act (the “Act”), which provides:

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.

[6] The responding party continued in its factum at para. 11:

Exclusive jurisdiction means that if a matter is within the Board’s jurisdiction within the meaning of s. 168(2), no other tribunal or court can have jurisdiction over that matter. Simply put, if the Board’s exclusive jurisdiction is triggered, the court’s jurisdiction is ousted.

Analysis

[7] Section 89(1) of the Residential Tenancies Act provides:

A landlord may apply to the Board for an order requiring a tenant to pay reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue dame to the rental unit or the residential complex and the tenant is in possession of the rental unit.

[8] Section 207 of the Residential Tenancies Act deals with the monetary jurisdiction of the Board, providing:

207(1) 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.

[9] I pause to note that the time that this matter was dealt with, the monetary jurisdiction of the Small Claims Court was $25,000. As noted, the claim brought by the landlord in this case was for $17,166.55 in rent arrears and property damage.

[10] This issue has been considered in a number of decisions in Ontario. In Mackie v. Toronto (City), 2010 ONSC 3801, Perell J. noted at para. 43:

It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims…From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.

[11] In Fong v. Lemieux, [2016] O.J. No. 2695, T. Marshall, Deputy J., relied on the decision of Perell J. in Mackie and stated at paras. 61-62:

[61] The Board has the expertise and day to day experience in handling matters pertaining to what is before the Court today, namely, rent arrears and damage claims to rental units. While it is true such claims have to be in the Superior Court of Justice for claims above $25,000.00 [per s 207 of the Act], the Board deals with such smaller claims more expeditiously than if it were a Superior Court of Justice matter, even a Small Claims Court matter. This is a hallmark of the Board proceedings.

[62] I accept a broad interpretation of Mackie pays no heed to provisions in the Act as to certain consequences whether a tenant is in possession of a rental unit or is a former tenant. In my view, this difference is ill-founded. If an issue arose out of a landlord and tenant relationship, that the tenant has moved out does not change the underlying character of the dispute, in the matter before the Court, rent arrears and damage to the unit…

[12] In Effrach v. Cherishome Living, 2015 ONSC 472, Horkins J., sitting on appeal, dealt with an order of a deputy Small Claims Court judge dismissing a landlord’s claim in Small Claims Court for lack of jurisdiction. Horkins J. reviewed the legislation and Justice Perell’s decision in Mackie, and summarized the law as follows at paras. 5-6:

[5] The 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.

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

Conclusion

[13] The landlord brought a claim in Small Claims Court for rent arrears and damage to the property. The claim was brought after the tenant had vacated the property. The amount of the claim did not exceed the $25,000 cap, then in place under s. 207(1) of the Act. It is plain and obvious that s. 168(2) of the Act gives the Board exclusive jurisdiction to determine claims of this type between landlord and tenant. The parties had a landlord and tenant relationship, and in my view, nothing turns on the fact that the action was started after the tenant was no longer in possession. It is clear that disputes of this sort are the daily fare of the Landlord and Tenant Board. When assessing claims, the Board is in the best position to determine whether claims for rent arrears and allegations of damage to property against the tenant amount to “undue damage” or simply wear and tear as a result of the normal occupancy of a residential unit.

[14] The appeal of the appellant. Uri Kiselman, is dismissed.

Costs

[15] The tenant was the successful party on this appeal. Costs follow the event. Costs were agreed upon by the parties, the successful party would be awarded $1,500, all inclusive. Considering the overriding principles of fairness and proportionality, the quantum involved in that this was an appeal of a Small Claims Court matter, I am satisfied that $1,500 is fair and reasonable under the circumstances. Costs are payable within 30 days by the appellant to the respondent.

MULLIGAN J.

Released: December 12, 2019

December 12, 2019 – Corrections:

1. Page 1, under the title “Reasons for Decision”, the description of the appeal should read: On appeal from the decision of Deputy Small Claims Court Judge S. Baker dated September 5, 2017.

2. The date in paragraph 1, second line, should read: September 5, 2017.