CITATION: Marr v. Elstone, 2024 ONSC 5165
DIVISIONAL COURT FILE NO.: 23-1435 DATE: 20240923
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lococo and Howard JJ.
BETWEEN:
victoria Lynne marr a.k.a. victoria marr and michael allen a.k.a. mike allan
David Strashin, for the Appellants
Appellants/Tenants
– and –
DAVID TYLER ELSTONE
Delaram Mehdizadeh Jafari, for the Respondent
Respondent/Landlord
HEARD at Toronto: September 17, 2024, by video conference
REASONS FOR DECISION
BY THE COURT
[1] The appellants/tenants Victoria Lynne Marr and Michael Allan appeal the order of Casullo J. dated October 12, 2023 (the “Decision”), requiring the tenants to pay arrears of rent in the amount of $45,397.40 to the respondent/landlord David Tyler Elstone.
[2] The order under appeal was made pursuant to s. 207(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), under which a person entitled to make an application under the RTA that has a claim that exceeds the $35,000 monetary limit of the Landlord and Tenant Board (the “Board”) may apply to the Superior Court of Justice for order requiring the payment of the amount claimed. On that application, “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”: RTA, s. 207(2).
[3] The appellants/tenants have an outstanding application before the Board, claiming $35,000 from the landlord for interference with the tenants’ rights, including the respondent/landlord’s alleged failure to repair or maintain the premises.
[4] The tenants submit that the application judge erred in the Decision by failing to recognize the Board’s “exclusive jurisdiction to determine all applications made under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act”: RTA, s. 168(2). The tenants argue that the landlord should have brought his claim for rent by way of application to the Board under s. 87 of the RTA. On a s. 87 application, the tenants would be entitled to raise any issue that could have been the subject of a tenant’s application under the RTA: see ss. 82(1), 87(2). The tenants say that if the landlord had proceeded before the Board under s. 87, the landlord’s claim for rent and the tenants’ claim for interference with their rights could have been determined expeditiously by the Board on a net basis within the Board’s monetary jurisdiction, consistent with the objectives of judicial economy and consistency of results: see RTA, s. 183.
[5] We disagree with the tenants’ submission. Given the amount of the landlord’s claim, the application judge clearly had the authority under s. 207(2) of the RTA to determine the rent arrears application as an exception to the Board’s exclusive jurisdiction to determine applications under the RTA. The application judge did not err in rejecting the tenants’ submission that the court did not have the jurisdiction to make the requested order.
[6] Before the application judge, it was open to the tenants to raise issues relating to the interference with their rights by way of offset against the landlord’s claim for rent, which would have allowed all issues relating to the tenancy to be determined in the same forum: see RTA, ss. 82(1), 87(2), 207(2). However, the tenants did not do so. As noted in the Decision, at para. 11, the tenants’ counsel “confirmed that the [landlord’s] success in Superior Court will have no bearing on the [tenants’] current application before the [Board].” In his reply submissions, tenants’ counsel called into question that finding but did not assert on appeal that the finding constituted a palpable and overriding error of fact that justified overturning the Decision. In any event, tenants’ counsel indicated in his submissions that the tenants’ application before the Board are continuing and remain to be determined. The tenants have been not deprived of the opportunity to advance their claims against the landlord under the RTA.
[7] The tenants also argue that the application judged erred in failing to recognize the landlord’s breach of his duty to take reasonable steps to minimize his losses by refusing to accept rent from the tenants. As a result, the accumulated arrears of rent exceeded the monetary jurisdiction of the Board. Section 16 of the RTA provides:
Minimize losses
- When a landlord or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses.
[8] We see no merit in the tenants’ submission. In the Decision, at para. 11, the application judge referred to the tenants’ submission that the landlord “created a situation whereby he refused to accept rent payments, allowing the arrears to eventually exceed the [Board’s] jurisdiction.” At para. 13, the application judge rejected that submission, finding that “[t]here is no evidence to support the allegation that the [landlord’s] actions inflated the arrears in order to oust the jurisdiction of the [Board]. The evidence is actually to the contrary.” We see no palpable and overriding error in that finding. In any case, we fail to see how the tenants were prejudiced by the landlord’s failure to accept rent from them, with the result that they occupied the premises rent free for 17 months.
[9] Accordingly, the appeal is dismissed, with costs payable by the appellants/tenants to the respondent/landlord in the agreed amount of $3,500.
___________________________ Sachs J.
Lococo J.
Howard J.
Date: September 23, 2024
CITATION: Marr v. Elstone, 2024 ONSC 5165
DIVISIONAL COURT FILE NO.: 23-1435 DATE: 20240923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Lococo and Howard JJ.
BETWEEN:
victoria Lynne marr a.k.a. victoria marr and michael allen a.k.a. mike allan
Appellants
– and –
DAVID TYLER ELSTONE
Respondent
REASONS FOR DECISION
BY THE COURT
Date: September 23, 2024