CITATION: 12001721 Canada Inc. v. Switzer, 2023 ONSC 2676
COURT FILE NO.: DC-22-00000010-0000
DATE: 2023 05 01
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
12001721 CANADA INC.
Plaintiff
(Appellant)
– and –
SCOTT SWITZER, KOBE SWITZER, LEIGH KERSHNER, JAKE GALLANT, LUKAS HASSE, FYLAN MILLWARD, NOAH COOPER and JOSEPH TERENZIO
Respondents
Kenneth Wise, Counsel for the Appellant
No One Appearing for the Respondents
HEARD: April 28, 2023 (via ZOOM)
Appeal from the decision of Deputy Judge H. Jane Robertson, dated January 22, 2022,
ENDORSEMENT
D.E. Harris J.
[1] This is an appeal by the numbered company of a small claims decision rendered by a Deputy Judge at a settlement conference dismissing the Appellant’s claim for damages as against the defendants. The appeal is unopposed by the Respondents who did not appear on the hearing.
[2] In brief, the numbered company rented a townhouse to the defendant Respondents. The defendants allegedly damaged the property. The Respondents were asked to vacate the property and they did on July 31, 2021. On October 3, 2021, the Appellant filed a claim in the Milton Small Claims Court seeking compensation for the damage.
[3] The matter came on for a settlement conference on January 22, 2022. The Deputy Judge dismissed the action for want of jurisdiction, relying on Kiselman v. Klerer, 2019 ONSC 6668 (Div. Ct.). That case purports to hold that the sole remedy for the Appellant in these circumstances is with the Landlord and Tenant Board. Costs of $500 against the Appellant were ordered.
[4] It is alleged that the Deputy Judge raised this jurisdictional question of her own motion and, contrary to natural justice, did not adjourn the matter and invite submissions from the paralegal acting for the Appellant. I am unable to adjudicate this argument as there is no factual basis laid out in the record to support it.
[5] However, on the substantive issue, I agree that the Deputy Judge erred in law. The Small Claims court does have jurisdiction. The subsequent case of Wu v. Adler, 2022 ONSC 188 (Div. Ct.) at paras. 35-47 is convincing authority establishing that Kiselman should not be followed. I would note that Wu was decided two weeks before the Deputy Judge’s decision dismissing this claim.
[6] Even more definitive, as commented on in Wu at paragraph 47, a reading of the pertinent legislation clarifies that the Small Claims Court has exclusive jurisdiction. The Protecting Tenants and Strengthening Community Housing Act, 2020 came into force on September 1, 2021. It amended the Residential Tenancies Act, 2006, S.O. 2006, c. 17 to clarify the jurisdictional issue which arises in this case. Section 87 and 89 together with Schedule 4 provide that if the tenant moved out before September 21, 2021—which is the situation here—the landlord cannot apply for a remedy to the Board. Therefore, the Board not having jurisdiction, the claim could only be filed and be determined by the Small Claims Court.
[7] The Respondents do not argue otherwise. The appeal is allowed, the decision below is vacated and the matter is remanded to the Smalls Claims Court. The costs award of $500 is also set aside. By agreement between the parties, there will be no costs on this appeal.
D.E Harris J.
CITATION: 12001721 Canada Inc. v. Switzer, 2023 ONSC 2676
COURT FILE NO.: DC-22-00000010-0000
DATE: 2023 05 01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
12001721 CANADA INC.
Plaintiff
(Appellant)
-and-
SCOTT SWITZER, KOBE SWITZER, LEIGH KERSHNER, JAKE GALLANT, LUKAS HASSE, FYLAN MILLWARD, NOAH COOPER and JOSEPH TERENZIO
Defendants
ENDORSEMENT
D.E HARRIS J.
Released: May 1, 2023