Superior Court of Justice – Ontario

CITATION: Asagwara v. Tran, 2017 ONSC 3513

COURT FILE NO.: CV-16-564117

DATE: 20170606

RE: Martins Uchenna Asagwara, Plaintiff

AND:

Huy Tran, Defendant

BEFORE: Monahan J.

COUNSEL: Martins Uchenna Asagwara, Appearing in Person

Phuong Thien Dam, for the Defendant

HEARD: June 6, 2017

ENDORSEMENT

[1] The Plaintiff, Martins Uchenna Asagwara, was a tenant in a building owned by the Defendant, Huy Tran,[^1] between 2006 and 2009. As a result of various deficiencies in the Plaintiff’s apartment, as well as various actions taken by the Defendant during this time, the Plaintiff brought an application before the Landlord and Tenant Board (the “Board”). Following a hearing, the Board found that the Defendant had interfered with the Plaintiff’s reasonable enjoyment of the rental unit and, further, that the Defendant had taken certain actions in relation to the Plaintiff that constituted harassment. The Board ordered an abatement of the Plaintiff’s rent in the amount of $1,139, and also ordered the Defendant to pay an administrative fine to the Board in the amount of $1,000 by no later than October 31, 2009. (The Board’s reasons, issued September 4, 2009, are included as Exhibit A to the Plaintiff’s Motion Record dated March 6, 2017.)

[2] The Plaintiff moved out of the Defendant’s apartment building in the fall of 2009. The parties take different views as to whether the rent abatement ordered by the Board was in fact paid or credited to the Plaintiff. The Plaintiff maintains that he never received the rent abatement, whereas the Defendant claims that the Plaintiff failed to pay rent for a number of months in 2009 and that, by the time the Plaintiff vacated the premises in the fall of 2009, the rent abatement had been offset by these non-payments. The decision of the Board notes at paragraph 10 that the Plaintiff had not paid rent for the months of July and August 2009 but does not otherwise discuss the matter.

[3] The Plaintiff commenced these proceedings by a Statement of Claim issued November 15, 2016, in which he sought damages for breach of contract based on a liquidated sum of $16, 364.15 plus costs. Although the Statement of Claim describes the claim as one for ‘breach of contract’, during the hearing of the matter the Plaintiff indicated that he was bringing his claim on two bases: (i) for breach of the tenancy agreement, arising from the deficiencies that were described by the Board in its 2009 decision; and (ii) for the payment of the $1,139 rent abatement ordered by the Board in September 2009, plus interest accruing from that date to the present.

[4] The Plaintiff sought to have the matter case managed, and also to amend the claim. The matter came before Justice Hood of this Court on April 5, 2017, who ordered that the matter be put over to today, so that the Plaintiff’s motion to amend the claim could be heard together with a cross-motion from the Defendant to have the claim dismissed.

[5] In my view it is unnecessary for me to address the issues regarding the manner in which the rent abatement was accounted for in 2009, nor to deal with the variety of grounds identified by counsel for the Defendant in support of the cross-motion to dismiss the claim. Nor do I need to address the issues raised by the Plaintiff’s motion to amend his claim. Any claim that the Plaintiff may have in relation to breach of contract or for non-compliance with the rent abatement ordered by the Board would have arisen in the fall of 2009 at the time the Plaintiff vacated the apartment. The Plaintiff did not file his Statement of Claim until November of 2016, over six years later. Although in oral argument Mr. Asagwara claimed to have been under a mental disability during some or all of time, there is no evidence to that effect before the Court. In any event, Mr. Asagwara also indicated the he had attempted to pursue his claim at various points in time over the past six years but had been unable to locate the address of the Defendant. Therefore, any claim he may now have relates to a cause of action that arose well outside of the two year limit set out in s.4 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B.

[6] Accordingly the action is dismissed on the basis that it is statute barred by s. 4 of the Limitations Act.

[7] With respect to costs, counsel for the Defendant submitted material indicating that the defence of this action required considerable time and effort, including attendances in court on two occasions, plus the preparation of a motion record and supporting materials. Moreover, the action could have been commenced in Small Claims Court. When this issue was raised at the hearing of the matter, Mr. Asagwara did not provide any reasonable explanation as to why he chose to bring the matter in this Court rather than in Small Claims Court. Further, while he originally commenced it under the Rule 76 simplified procedure, he later sought to continue it as an ordinary action. In light of these circumstances, and taking into account the submissions at the hearing in relation to the issue of costs, I award costs in favour of the Defendant in the amount of $1,500.

[8] Accordingly, the action is hereby dismissed, with costs of $1,500 to be paid by the Plaintiff to the Defendant within 30 days of today’s date.

Monahan J.

Date: June 6, 2017

[^1]: The Statement of Claim identifies the Defendant as Hyu Tran, but it appears that the correct spelling of his name is Huy Tran. In accordance with Rule 5.04(2) I am correcting the spelling of the name of the Defendant.