COURT FILE NO.: CV-12-459557
DATE: 20121217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LeRoy Oswald Taylor, Plaintiff
– AND –
Donros Developments, Defendant
BEFORE: Justice E.M. Morgan
COUNSEL: LeRoy Oswald Taylor, self-represented
Gregory Gryguc, for the Defendant
HEARD: December 17, 2012
ENDORSEMENT
[1] The Plaintiff was a residential tenant at Unit 101 – 381 Rusholme Road, Toronto (the “Unit”) of which the Defendant (properly named Donros Developments Limited) is the landlord. This is a motion for summary judgment by the Defendant. In the action, the Plaintiff claims losses flowing from allegedly improper maintenance of the Unit which, in turn, is alleged to have caused the Plaintiff to suffer a rat bite and various related health consequences and financial losses.
[2] The Plaintiff was evicted from the Unit for non-payment of rent by order of the Landlord and Tenant Board (the “Board”) dated June 13, 2012. The Plaintiff then sought review of that order, and the Board confirmed the eviction order on August 31, 2012.
[3] On February 21, 2012, the Plaintiff commenced two separate proceedings: a) an action for damages in Small Claims Court seeking damages in compensation for losses he claimed to have suffered due to the rat bite; and b) an application to the Board alleging poor maintenance of the Unit and seeking damages resulting from the rat bite. The Small Claims Court action was dismissed by order dated March 22, 2012, as the court found that it duplicated the claim brought by the Plaintiff against the Defendant before the Board.
[4] On April 2, 2012, the Plaintiff’s application was adjourned by the Board to give him time to obtain medical evidence and to make certain amendments to his application. A condition of this adjournment was that the Plaintiff pay rent to the Board in trust pending final determination of his application and the parallel application of the Defendant for eviction.
[5] The Plaintiff did not comply with the terms of the interim order. He then sought permission from the Board to withdraw his application relating to the poor maintenance and the rat bite. This withdrawal was noted in the Board’s order dated June 25, 2012. On August 31, 2012, the Board heard a further application by the Plaintiff under section 31 of the Residential Tenancies Act that he was harassed and otherwise obstructed and interfered with by the Defendant; in this application, which was dismissed in its entirety, the Plaintiff again sought damages with respect to losses allegedly incurred due to the rat bite.
[6] The Plaintiff has not appealed the order of the Small Claims Court or that of the Board.
[7] The Plaintiff issued the Statement of Claim herein on July 24, 2012. The claim is based entirely on the allegation of poor maintenance of the Unit by the Defendant and the rat bite and consequential damages. The Defendant issued its Statement of Defense on July 31, 2012.
[8] The Defendant’s motion for summary judgment was scheduled to be heard today by order of Perell J. dated August 14, 2012. The Plaintiff then brought the matter to Motion Scheduling Court on September 18, 2012, indicating that he would be amending the Statement of Claim. Both parties appeared before Low J., who set a timetable for the next steps and ordered that the Plaintiff’s motion be heard together with the Defendant’s motion today.
[9] The Plaintiff never served a Notice of Motion, nor did he otherwise comply with the timetable set by Low J. He did, however, submit an Amended Statement of Claim to the court filing office on December 3, 2012. On that date he also requested that the Defendant be noted in default. The court office refused to note the Defendant in default as a Statement of Defense had already been filed, but it did accept the Amended Statement of Claim and put its stamp on the amended pleading dated December 3, 2012. The Plaintiff has provided me with a photocopy of the Amended Statement of Claim for my reference on this motion.
[10] The court’s acceptance of the Amended Statement of Claim was a clerical error. Pleadings had already closed and the Plaintiff at that point needed to bring a motion in order to amend his claim.
[11] The Defendant has complied with the timetable set by Low J. The grounds raised by the Defendant for dismissal of the action are twofold: a) the action is res judicata, having already been decided by the Board; and b) this court has no jurisdiction to entertain the action as the Residential Tenancies Act, 2006, SO 2006, c. 17 (the “Act”), gives the Board exclusive jurisdiction over the subject matter of the action.
[12] Under section 20(1) of the Act, “[a] landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” A tenant may bring an application to the Board under section 29(1)1 of the Act in order to compel a landlord to adhere to this obligation and to claim damages as a result of the landlord’s breach. That is precisely what the Plaintiff did on February 21, 2012.
[13] Section 168(2) of the Act provides that, “[t]he 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.” Section 174 makes it clear that this includes the Board’s “authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act.”
[14] The Court of Appeal has recently confirmed that sections 168(2) and 174 effectively exclude the jurisdiction of this court over all matters for which the Act grants jurisdiction to the Board, “including his [i.e. the tenant’s] right to compensation.” As the Court of Appeal put it, “[i]f the [tenant] would like to pursue his claim for damages, he will have to appeal the decision rendered by the [Landlord and Tentant Board].” Diallo v. Toronto Community Housing Corp., 2011 ONCA 424, at para. 18.
[15] In the present case, rather than rendering a decision on the merits the Board permitted the Plaintiff to withdraw his application. Para. 4 of the Board’s order of June 25, 2012 states that the Plaintiff first requested a brief adjournment to speak with duty counsel, after which “the Tenant requested the consent of the Board to withdraw their [sic] application as he wished to seek the full remedy claimed in his application based on the Landlord’s alleged breach in another court of competent jurisdiction.” Unfortunately, the Board did not correct the misimpression that there is another forum in which a tenant can claim damages against a landlord for failure to properly maintain a residential unit; however, the Board’s oversight in that regard cannot confer jurisdiction on this court where the Act takes it away.
[16] I pause to note that it is evident from the Board’s order of June 25th that the permission to withdraw the application was really just a courtesy to the Plaintiff. Had he not decided, after speaking with duty counsel, to withdraw the application for damages for poor maintenance, the Board was prepared to dismiss it. A term of the Board’s previous interim order was that the Plaintiff pay rent into trust as a condition of continuing his own application against the Defendant. He failed to comply with that term. Under those circumstances, the Board found, at para. 6, that the Plaintiff had “unnecessarily wasted the Landlord’s time and board resources…[and] the Landlord should be entitled to an award of costs.”
[17] As indicated above, the Plaintiff has filed an Amended Statement of Claim setting out the identical cause of action and based on the identical facts as the original Statement of Claim. The only thing that has changed in the amended pleading is the calculation of damages, which has been dramatically increased. Nevertheless, the original Statement of Claim raised a cause of action within the exclusive jurisdiction of the Board, and so does the amended version. Much as the amendment should not have been accepted by the court office without an order authorizing that amendment, the amendments do not save the claim from the Defendant’s motion. This court has no jurisdiction over the matters claimed in this action, whichever version of the claim one reads.
[18] Given that the Defendant is correct in its jurisdictional challenge, it is not necessary to consider whether the claim is also barred as being res judicata. The action is dismissed, with costs to the Defendant.
[19] The Defendant has not submitted a Bill of Costs. However, given that the Plaintiff has lost his place of residence and has been self-represented and seemingly not well advised, I consider this an appropriate case to exercise some discretion in the Plaintiff’s favour by awarding only a modest amount of costs to cover the Defendant’s disbursements and a small portion of counsel’s time. The Plaintiff shall pay the Defendant costs in the amount of $1,000.00, inclusive of disbursements and HST.
Morgan J.
Date: December 17, 2012