Court File and Parties
Court File No.: CV-22-00688442-0000
Date: 2025-07-28
Ontario Superior Court of Justice
Between:
ANDRÉ FISET, Plaintiff
- and -
GOWAN PROPERTY MANAGEMENT INC., JARVIS COURT APARTMENTS, 1789331 ONTARIO LIMITED, DANIEL SOCKEN, WENDY CLAURE, MICHAEL SABO, KLEBETA DIZDARI, ADRIAN ILLE, DARREN FINK, MOHAMMED ALI, LINDA ROSE DELA ROSA, PEST CONTROL PLUS, MARK JOSEPH, OVITA KHADOO, BRIAN MARKELL, JOY UMBAY and SHAKIL KHAN, Defendants
Counsel
André Fiset, Self-Represented Plaintiff
Kyle Duncan, for the Defendants Gowan Property Management Inc., Jarvis Court Apartments, 1789331 Ontario Limited, Daniel Socken, Wendy Claure, Michael Sabo, Klebeta Dizdari, Adrian Ille, Darren Fink, Mohammed Ali and Linda Rose Dela Rosa
Alan L. Rachlin and Laleh Hedayati, for the Defendants Pest Control Plus, Mark Joseph, Ovita Khadoo, Brian Markell, Joy Umbay and Shakil Khan
Heard: June 13, 2025
Before: Akazaki J.
Reasons for Judgment
Overview
[1] André Fiset, a residential tenant, sued his landlord to recover $6,000.00 over an alleged security deposit which, by his own admission, was prepayment of his first ten months' rent. He also sued his landlord and its pest control contractor to recover $7,170.01 for hotel stays and cleaning services, because his unit had to be sprayed for bedbugs and his skin may have come into contact with spray residue.
[2] Under ss. 168 and 207 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 ("RTA"), the court would have no jurisdiction to adjudicate these claims, because of the exclusive subject matter jurisdiction of the Landlord and Tenant Board ("LTB") over landlord and tenant disputes under $35,000.
[3] However, Mr. Fiset has also claimed a total of $600,000.00 general, aggravated, and punitive damages resulting from the landlord or its agent's negligent cleanup of the Drione bedbug spray and for harassment by the superintendent. The defendants move for summary judgment to dismiss Mr. Fiset's Superior Court action, on the basis that no trial is required to determine that the subject matter is a landlord-tenant dispute in which the damages could never exceed $35,000. Mr. Fiset's action therefore tests a potential loophole in the legislation allowing an influx of the LTB caseload into Superior Court, if tenants simply claimed a large sum of unspecified damages for relatively minor grievances.
[4] Mr. Fiset's allegation that the landlord unlawfully demanded up-front payment of $6,000.00, an amount exceeding one month's rent, could only be tenable within the statutory framework of the RTA, s. 106(2). However, he admitted it was applied to his rent from the time he moved in. Whether characterized as an unlawful security deposit or as prepaid rent, there is no dispute that the landlord did not retain the $6,000.00 as a deposit for last month's rent. He cannot claim for a loss he did not incur. If it was unlawful, the most he could claim is half of ten months' interest.
[5] The manufacturer of the spray published information that skin contact should be avoided because it could cause irritation. Mr. Fiset connected this with a tingling feeling that resolved a few days after he moved into a hotel. He then suffered an anxiety attack triggering obsession over his possible exposure to Drione, for which he blames the defendants for losing sleep and having to drop some university courses. Mr. Fiset could not produce clinical evidence of exposure to the spray or of a causal connection between it and his dermal paresthesia, beyond his doctor's advice to avoid it and his verbal discussions with Bayer, the product manufacturer. His own account of these discussions and investigations revealed an obsession with the contact exposure to the spray residue.
[6] Separately from the security deposit and bedbug spray issues, Mr. Fiset alleged the superintendent and other landlord agents harassed him, including leaving dog mess in front of his door. In his affidavit, he professed to having taken an audio recording of the superintendent admitting to leaving it there. Assuming Mr. Fiset could prove his allegations of these events at trial, they could not add much to the null security deposit claim and the cost of a seven-week hotel stay. The harassment, taking his evidence at face value, could be interpreted as trying to drive him out of the building, as opposed to an attempt to inflict mental harm. Since the landlord and its employee were unsuccessful, the validity of the $600,000 claim distils down to a possible transitory skin irritation, a prolonged anxiety attack, and harassment.
[7] The case differs somewhat from the "fly in the bottle" situation of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, in that he could not have been surprised that professional-grade insecticide bears a toxicity hazard, for which the pest control contractor warned him not to return to his flat for at least four hours. The first spray application failed to eliminate the bedbugs, so they returned to apply a second dose. In other respects, tort law did not require the defendants to account for Mr. Fiset's exceptional emotional sensitivity to the idea that his skin might have been exposed. As outlined by the Chief Justice in Mustapha, at paras. 14-20, the law expects "reasonable fortitude and robustness of its citizens." A contact irritation lasting several days does not warrant a Superior Court lawsuit for hundreds of thousands of dollars.
[8] Closer review of the evidence makes it clear that allegedly unresponsive communications between Mr. Fiset and the defendants were the cause of Mr. Fiset's prolonged anxiety about returning to the unit. The LTB would certainly possess more expertise about residential service standards than this court.
[9] Despite his claims to the availability of thousands of documents proving his case, his responding record contained no probative evidence supporting any of his allegations. It would not take much of a weighing exercise to hold that Mr. Fiset has failed to meet his evidentiary obligations as a respondent to a summary judgment motion to put his best foot forward. Mr. Fiset represented himself in the action. Because of the court's responsibility to assist a self-represented person, I asked him whether there is a toxicology report or medico-legal evidence backing up his belief in a skin reaction to the Drione residue. He pointed to many documents in his possession about Drione, but none of it pertained to him. He did not direct the court to any evidence that the tingling sensation he felt was an expected symptom of contact with Drione. The doctor's clinical records contained some information about his anxiety attack, much of which Mr. Fiset disclaimed knowledge in his sworn discovery evidence.
[10] For the purposes of the summary judgment motion, I am prepared to accept that Mr. Fiset could provide evidence that spray residue on his furniture caused him to suffer an anxiety attack and to leave his flat beyond the pest control contractor's recommendation of four hours. Why this process took seven weeks before he could return from the hotel and how this severely disturbed his online studies at York University during the Covid-19 emergency remain imponderable questions, despite his lengthy responding affidavit and factum.
[11] From a landlord-tenant perspective, Mr. Fiset would have been within his rights to stay out of the unit and to expect the landlord to eliminate any spray residue from his furniture. The only problem with this rights-based analysis was absence of evidence that the powder he found on his furniture was toxic after the four-hour waiting period, or why he chose to rest his arms on the powder on his chair's arm rests instead of wiping it off.
[12] After the tingling sensation resolved, the reason for worrying about possible contact with the spray also diminished. The underlying relation between the parties was between landlord and tenant. This meant any breach by the defendants stemmed from the covenant to provide living quarters. Without finding that it was reasonable for Mr. Fiset to choose to reside in a hotel for seven weeks and expect the landlord or its agents to pay for it, the combination of inconvenience and anxiety had to diminish to the point of resolution by the time he moved back into the unit. There was no evidence that York University charged him for the courses he dropped, and he has not included any such charges in his claim.
[13] There is a separate allegation that the landlord's superintendent harassed him, including depositing dog mess at his unit door. The law of Ontario does not recognize harassment as a stand-alone tort: Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 43. Neither tort law nor contract law imposes liability for mental distress, in the absence of evidence of a reasonably foreseeable psychological illness: Mustapha, at para. 19, and Merrifield, at para. 45. Harsh or objectionable conduct, paradigmatically the subject of punitive damages, is not independently actionable: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, at para. 31. Mr. Fiset's claim for harassment is therefore bound to fail in Superior Court. However, it falls squarely within the LTB's remit to enforce s. 23 of the RTA, not to "harass, obstruct, coerce, threaten or interfere with a tenant."
[14] Between the null security deposit claim and the questionable $7,170.01 hotel bill, the court is left considering the maximum amount of damages Mr. Fiset would be allowed to recover, assuming acceptance of his evidence as evidence. After envisaging Mr. Fiset's best day in court, the court must then consider the substance of his allegations within the current regime for residential landlord-tenant disputes.
[15] After the 1998 implementation of the Tenant Protection Act, 1997, S.O. 1997, c. 24 and establishment of the Ontario Rental Housing Tribunal, the Superior Court ceased to operate a landlord and tenant court. Further law reform and the replacement of the Tribunal with the LTB under the RTA entrenched the diversion of residential tenancy disputes to a specialized tribunal with power to make mandatory and monetary orders tailored to these disputes. Tenants whose claims exceed the $35,000 Small Claims Court limit must start an action in the general civil division of the Superior Court.
[16] The motion therefore comes down to Mr. Fiset's claim of $600,000.00 for mental distress and disruption of his course work. Does this claim entitle him to bring the case into Superior Court, if the maximum pecuniary claim for which Mr. Fiset can prove is $7,170.01? The question has wide-ranging importance, because residential landlord and tenant disputes inherently deal with the threat to residents' shelter rights. For this reason alone, even disputes over rent can be intensely personal and stressful. Mr. Fiset's choice of court over the LTB by pleading an untenable mental distress claim potentially unlocks the floodgates in a manner the legislature never foresaw. Answering the question requires consideration of the following five points on the face of the record:
- LTB and Superior Court Jurisdiction
- Summary Judgment Principles
- Value of Mr. Fiset's Non-Pecuniary Claims
- Status of the Pest Control Defendants under the RTA
- Security for Costs
[17] Mr. Fiset cannot invoke the Superior Court's jurisdiction to hear landlord-tenant claims with a value over $35,000.00 by grafting a large dollar amount onto the claim. Therefore, the court must grant summary judgment dismissing the claim, if there is no genuine issue requiring a trial that his compensation, either at common law or under the statute, could not exceed that value. Because the RTA imposes an agency relationship on a landlord's contractor performing work discharging statutory duties, the Pest Control defendants also enjoy immunity from suit because of the court's lack of jurisdiction. The result of the jurisdiction issue means the motion for security for costs is moot.
[18] Thus, for the reasons below on these issues, Mr. Fiset's action is dismissed.
1. LTB and Superior Court Jurisdiction
[19] The court must first determine whether, by claiming damages greater than $35,000.00, Mr. Fiset's claim should proceed in Superior Court. This entails interpretation of the word "claim" in s. 207(2) of the RTA.
[20] The RTA is an act of remedial legislation, consisting of eighteen parts and 246 operative sections. It builds on previous legislation diverting landlord-tenant disputes to a specialized statutory tribunal. More importantly, its purpose is to empower tenants in the protection of their rights. To this end, the statute codifies the parties' rights and obligations, mostly in favour of tenant protection, and prohibits landlords from forcing tenants to contract out of basic shelter and accommodation rights. The special statutory remedies cover issues the common law of landlord and tenant simply does not address.
[21] Sections 117-120 of the Act regulate the payment and amount of security deposits. The only type of security deposit permitted under the RTA is a rent deposit, to be applied to the last month's rent. It cannot exceed one month's rent. Mr. Fiset claims the $6,000.00 up-front payment was a prohibited rent deposit because it was greater than the monthly rent of $1,200.00. (His monthly rent was $600.00, and the other half subsidized by the City of Toronto.) However, it could not have been a rent deposit because he admitted it was prepayment of his first ten months and not held as security for the last month of the tenancy.
[22] Section 20 requires landlords to repair and maintain the property, including observance of health and safety standards. This was the duty Mr. Fiset's landlord discharged by sending in its pest control service after he reported bedbugs in his flat. It is also the basis for Mr. Fiset's complaint that he had to move out because exposure to Drione spray was harmful to his health. Section 30 empowers the LTB to make various monetary awards to compensate him for the alleged failures.
[23] Section 23 prohibits harassment by the landlord. All of Mr. Fiset's harassment allegations fit within this statutory regime.
[24] Section 29 provides for tenants' applications to the Board for various orders related to the repair and maintenance of the building, and issues such as harassment, threats, or coercion. Under s. 31(1), the Board may require the landlord to pay the tenant's reasonable costs resulting from a breach of repair and maintenance obligations and may require the landlord to pay a fine.
[25] Mr. Fiset strenuously argued that he needs the Superior Court's jurisdiction to access the remedy of punitive damages. He relied on Campbell v. Maytown, at para. 23, in which the Divisional Court affirmed the LTB's predecessor body's ruling that it could award special or compensatory damages but not punitive damages. This does not stand for the proposition that a party can choose the court route because the administrative tribunal lacks the authority to make a punitive damages award.
[26] The LTB's power to impose a fine is not the same as punitive damages, but the legislature clearly intended the subject matter to be remedied by a fine and not by an award of punitive damages. The remedial differences do not bear on the issue of the subject matter of disputes that a statute has diverted to a specialized tribunal: Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, at para. 52. Attempts to frame an action with various labels such as conspiracy cannot circumvent an administrative tribunal's jurisdiction: Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at para. 7.
[27] It is clear from Mr. Fiset's statement of claim and evidence that the essential character or subject matter of the claim is a residential landlord and tenant dispute for which the RTA broadly occupies the domain.
[28] The Superior Court has not operated a landlord and tenant court since the Tenant Protection Act, 1997, S.O. 1997, c. 24 ("TPA"), established a specialized administrative body called the Ontario Rental Housing Tribunal. The legislature provided this tribunal exclusive jurisdiction over residential tenancy disputes, with the power to award money up to the limit of the Small Claims Court. In 2006, the RTA superseded the TPA. The provisions relevant to this motion are ss. 168 and 207 (bold font added):
168 (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French. 2006, c. 17, s. 168 (1).
Board's jurisdiction
(2) 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. 2006, c. 17, s. 168 (2).
Monetary jurisdiction of Board
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. 2006, c. 17, s. 207 (1).
Same
(2) A person entitled to apply under this Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, 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. 2006, c. 17, s. 207 (2).
Same
(3) If a party makes a claim in an application for payment of a sum equal to or less than the Board's monetary jurisdiction, all rights of the party in excess of the Board's monetary jurisdiction are extinguished once the Board issues its order. 2006, c. 17, s. 207 (3).
[29] The LTB has exclusive jurisdiction over this subject matter up to the Small Claims Court jurisdiction of $35,000. Beyond that amount, the Superior Court has concurrent jurisdiction over the first $35,000 and original jurisdiction beyond that amount.
[30] The point in contention in this motion is the meaning of the phrase, "whose claim" in s. 207(2), as distinguished from "makes a claim" in s. 207(3). Although he did not expressly state it in his submissions, his position requires the phrases to have the same meaning: that if he claimed more than $35,000.00, he had to bring the claim in Superior Court. He cited a Court of Appeal case, Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442, which appeared to back up his argument. There was also an earlier decision that he did not cite, Kaiman v. Graham, 2009 ONCA 77, with commentary on the effect of s. 207(2) that could be read more in Mr. Fiset's favour than Letestu. I will deal with these cases in chronological order.
Kaiman v. Graham (2009)
[31] The case involved a 40-year lease between relatives over a cottage. The tenants sought an equitable interest in the cottage property, rectification of the lease to extend the term to 100 years, and damages in the amount of $250,000 on account of the improvements to the cottage based on quantum meruit and unjust enrichment. The trial judge's dismissal of the tenants' claim was rooted in a finding that one of the tenants' waiver of a life interest terminated the lease mid-term.
[32] On appeal, the tenants asserted for the first time that the RTA governed the lease and that the Superior Court had no jurisdiction to terminate the lease. In rejecting this argument, Weiler J.A. stated:
[12] The appellants have framed the issue on appeal as being whether a declaration terminating their tenancy should be granted. They submit that the Landlord and Tenant Board has exclusive jurisdiction to decide this issue: see generally, Part V of the RTA and s. 168(2). However, their statement of claim does not contain a request for a declaration terminating a tenancy. It requests a declaration that a tenancy exists. The RTA does not confer jurisdiction on the Tribunal to determine whether there is a valid tenancy agreement. The existence of a tenancy agreement is presumed: O'Brien v. 718458 Ontario Inc. (1999), 25 R.P.R. (3d) 57 (Ont. Gen. Div.).
[13] Furthermore, in their statement of claim, the appellants sought numerous grounds of relief, including equitable relief and a certificate of pending litigation, which the Landlord and Tenant Board would have had no jurisdiction to order.
[14] In any event, even if the Board had jurisdiction to determine whether the tenancy was validly terminated, having regard to the appellants' claim for damages in the amount of $250,000, the appellants were entitled to commence their proceeding in the Superior Court. Having done so, that court had all the jurisdiction that the Board would have had.
[15] Section 207(1) of the RTA states that the Board, where it otherwise has jurisdiction, may order the payment of the greater of $10,000 and the jurisdiction of Small Claims Court. Section 207(2) states:
A person entitled to apply under this Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, 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.
Simply put, the Superior Court had jurisdiction to grant any and all of the relief claimed by the appellants. The Board did not. Any jurisdiction it did have was, by virtue of s. 207(2), non-exclusive.
[33] The subject matter of the underlying case was clearly a leasehold title dispute and not of the type of landlord-tenant dispute that the legislature sought to regulate under the RTA. As I will explain below, the paragraphs citing the LTB's monetary jurisdiction were obiter. I do not read them as broadcasting the Court of Appeal's intent to redivert a wide range of landlord-tenant disputes back to the Superior Court where tenants simply plead a large claim for damages.
Letestu Estate v. Ritlyn Investments Limited (2017)
[34] This slip-and-fall accident case, brought by the estate of the deceased plaintiff for $500,000 in damages caused by damaged carpet in his rental unit. The plaintiff started the action 23 months after the accident, within the two-year general limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, but outside the one-year period under the RTA. On the eve of trial, the landlord moved to strike the claim on the basis the Superior Court had no jurisdiction to hear the action. The motion judge dismissed the action, because the claim fell within the exclusive jurisdiction of the LTB.
[35] The Court of Appeal held that the Superior Court had jurisdiction over the case. After holding that s. 29(1) of the RTA allowed the former tenant to apply to the LTB for various orders arising from breach of the duty to repair, and that s. 168(2) gave the Board exclusive jurisdiction to determine all applications and all matters under the RTA, the Court of Appeal stated:
[10] [T]he Act does not grant the board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the board has jurisdiction over a tenant's or former tenant's claim for damages (as well as other claims within the board's authority) where the "essential character of the claim" is for non-repair and within its monetary jurisdiction: Mackie v. Toronto (City), [2010] O.J. No. 2852, 2010 ONSC 3801 (S.C.J.). The board's jurisdiction, however, is not exclusive by virtue of s. 207(2): Kaiman v. Graham, [2007] O.J. No. 324, 2009 ONCA 77, 245 O.A.C. 130, at para. 15.
[11] Because the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the board, there was no question that the appellants were entitled to commence their proceeding in the Superior Court. …
[36] Although technically a landlord-tenant dispute, the action was essentially a personal injury claim. It had nothing to do with the relationship between the parties, in terms of tenure, quiet enjoyment, or rent.
[37] Mr. Fiset argued that his case was a personal injury claim, although he readily conceded at the hearing that his skin irritation complaint was quite minor. I need not consider whether his damages claim for this physical injury could be dismissed outright under the general principle de minimis non curat lex: R. v. Kubassek, at para. 19. However, as a diminishment of enjoyment of his rental unit under the RTA, the most fitting remedy would probably be rent abatement for the few days he continued to experience the tingling.
Effect of These Court of Appeal Decisions
[38] I must determine whether the above Court of Appeal decisions stood for the general proposition that by making a claim for more than $35,000 automatically allows Mr. Fiset to continue his court action.
[39] Generally, lower courts follow appellate courts. However, lower courts must not follow blindly where the appellate cases are obviously distinguishable and clearly never intended to direct lower courts into absurd results. The decision of a lower court to follow an appellate court is a judicial act, for which the reasons must disclose deliberation of the factual and legal matrix. All courts interpret statutes to apply to the specific factual issues before them. In R. v. Henry, 2005 SCC 76, [2005] 3 SCR 609, at para. 57, Binnie J. stated:
The issue in each case … is what did the case decide? Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance, and which should be accepted as authoritative.
[40] In Drover v. Canada (Attorney General), 2025 ONCA 468, at paras. 36-38, the Court of Appeal stated that an appellate court's decision is binding on similar fact situations and if the stated reasoning was necessary for the court to reach the result.
[41] Applying these principles of stare decisis to the operation of Kaiman and Letestu Estate in this motion, I conclude that the cases are entirely distinguishable from Mr. Fiset's action. In both cases, the Court of Appeal statements were obiter, in the sense that they were alternative or additional grounds for decision and unnecessary elements of the reasons. Kaiman stands for the proposition that a contest among relatives over leasehold control of cottage property is not a landlord-tenant dispute. Letestu stands for the proposition that a trip-and-fall victim cannot be deprived of the two-year general limitation period if the suit could be characterized as a landlord's failure to keep the carpet in good repair. In either case, the court would have kept jurisdiction even if the claims did not exceed the LTB's monetary jurisdiction.
[42] Neither decision embarked on a searching textual exegesis suggesting an interpretation applicable to all cases, including one in which a tenant appends a disproportionate damages claim to a pleading of facts supporting little or no monetary redress. If the Court of Appeal intended the Superior Court to follow such guidance and interpret the phrase, "whose claim," as the amount stated in paragraph 1 of Form 14A (statement of claim), one would expect the Court of Appeal to have conducted a consequential analysis. Similarly, if it intended to equate "whose claim" in s. 207(2) with "makes a claim" in s. 207(3), one would expect the court to have considered the different expressions.
[43] The preliminary textual reading starts with the legislative convention that different words have different meanings and that the failure to follow a pattern of expression implies legislative intent to change or differentiate meaning: Ruth Sullivan, The Construction of Statutes, Seventh Ed. (Toronto: LexisNexis, 2022), at pp. 218-19 and 249-50. If the legislature meant s. 207(2) to provide automatic access to the court to any party who "makes a claim" exceeding the LTB's monetary jurisdiction, it would have used the same language as in s. 207(3).
[44] Instead, the phrasing in s. 207(3) has a different purpose than simply delineating a boundary. By stipulating that a party who "makes a claim" in an LTB application for payment of a sum equal or less than the Board's jurisdiction, all rights to amounts above the jurisdiction are extinguished once the Board issues its order. Making a claim is therefore a voluntary act amounting to waiver. Moreover, the extinguishment in s. 207(3) implies that the party might have a claim that exceeds the limit.
[45] Because s. 207 directs the flow of litigation between an administrative tribunal and the court, the consequential analysis is critical. An interpretation that would permit easy avoidance of the statutory tribunal regime or abuse of the legislation may be dismissed as absurd. Similarly, interpretations that would encourage litigation or unduly tax court resources must be avoided: Sullivan, at p. 311. On that page, Prof. Sullivan referenced Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 SCR 157, at para. 39, in which the Supreme Court avoided an interpretation of s. 94(1)(a) of the Canada Labour Code that would open "virtually every unfair labour practice complaint under this section" to review by the courts on a correctness standard. To construe "whose claim" in s. 207(2) as allowing a party to a residential landlord-tenant dispute to sue in court for relief under the RTA simply by making a claim would likely defeat the legislative purpose of diverting all but exceptional landlord-tenant cases away from the Superior Court.
[46] Applying the principles of statutory interpretation to s. 207(2), it would be against the intent of the legislature to allow a party to sue in Superior Court by appending to a dispute clearly within the jurisdiction of the LTB a damages claim for an amount greater than $35,000. I therefore construe "whose claim" as an expression of possession or entitlement, as distinct from the act of making a claim. This difference allows the court to control its process and to consider whether the party making an excess claim in fact has such a claim.
[47] I therefore decline to hold that Mr. Fiset can bring his landlord-tenant dispute into Superior Court simply by pleading a large claim for damages in his statement of claim. The characterization of the claim in terms of conspiracy and other legal grounds also does not alter the essential character of the subject matter as a landlord-tenant dispute. It therefore falls to the court to consider whether, on summary judgment, the moving parties have satisfied it that Mr. Fiset is not "A person … whose claim exceeds the Board's monetary jurisdiction."
2. Summary Judgment Principles
[48] The Gowan landlord defendants' notice of motion cited rule 20 for its summary judgment motion and rule 21 for striking out the statement of claim, both under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[49] The Pest Control defendants' notice of motion cited Rule 2.1 and the fact that the claim falls within the exclusive jurisdiction of the LTB. I was concerned that Rule 2.1 has a standard procedure involving written submissions and no oral hearing. However, the provision that "Unless the court orders otherwise" means the judge has discretion to follow a different procedure: Ahmed v. Ontario (Attorney General), 2021 ONCA 427, at para. 7. In any event, I am satisfied that the notice of motion also sought a dismissal independent of Rule 2.1 on the basis that the proceeding is an abuse of process and outside the jurisdiction of the court. As the designated case management judge, I also have a perspective contemplated by rule 77 to appreciate the nature of the plaintiff's claim in its manifold dimensions.
[50] I am satisfied that the notices of motion clearly notified Mr. Fiset that the motions were for summary judgment on the basis that his monetary claim fell below the $35,000 exclusive jurisdiction of the LTB. Further, from his materials and his submissions, there was no issue that he did not understand the issue on the motion. Unlike summary judgment motions in most other instances, it is not my task to fix his damages. Rather, it is to determine whether a trial is required to assess his damages beyond $35,000. If the damages cannot exceed that amount, his claim for $600,000 amounts to an abuse of process for the purpose of choosing the court instead of the LTB as the forum for his residential tenancy grievances.
[51] In a summary judgment motion, the court must follow the provisions of Rule 20.04 of the Rules of Civil Procedure, the relevant provisions of which are reproduced below:
Disposition of Motion
General
20.04 (2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all, or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
Powers
(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[52] Rule 20.04(2) requires the court to grant summary judgment if there is no genuine issue requiring a trial. Prior to the current wording of the rule, there was considerable uncertainty about whether "for trial" meant "requiring a trial," and whether any single issue, such as one of credibility, necessitated a trial: Irving Ungerman Ltd. v. Galanis (C.A.), 4 O.R. (3d) 545, at p. 551. The Rule was amended in 2010 to now require the court to consider whether the case can be determined more expeditiously and preserve a "fair and just adjudication": Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 47-51.
[53] The Supreme Court's guidance in Hryniak, at paras. 66-68, requires the court first to determine whether there is a genuine issue requiring trial, based on the evidence in the motion records, without resort to the three fact-finding powers in rule 20.04(2.1). If there appears to be a genuine issue requiring a trial, the court may then employ the three powers to determine whether the need for a trial can be avoided.
[54] The court must therefore apply these principles to the question whether Mr. Fiset is "A person … whose claim exceeds the Board's monetary jurisdiction."
3. Value of Mr. Fiset's Non-Pecuniary Claims
Mr. Fiset's Pleaded Claims
[55] Mr. Fiset's non-pecuniary claims consist of general damages of $250,000 for conspiracy, misrepresentation, and deceit; intentional infliction of emotional pain and suffering; negligence; breach of fiduciary duty; intimidation and harassment; and malice. He further claims special damages in the amount of $50,000, aggravated damages in the amount of $150,000, and punitive damages of $150,000.
[56] The first 26 paragraphs of the statement of claim describe Mr. Fiset's claim for an unlawful security deposit, in the amount of $6,000.00. Because he admitted he was credited this amount through corresponding monthly rent reductions during his first twelve months, this claim should be dismissed without the need for a trial.
[57] Paragraphs 27-50 of the statement of claim describe Mr. Fiset's discovery of bedbugs in the apartment, his decision to move into a hotel for seven weeks out of fear that he had been exposed to the pesticide applied by the landlord's contractor, and his hiring of a cleaning company to redo the contractor's negligent cleanup of the pesticide.
[58] From paragraph 51 onward, Mr. Fiset's statement of claim consists of argument, attempting to characterize the circumstances and events in terms of conspiracy, misrepresentation, deceit, intentional infliction of emotional pain and suffering, negligence, breach of fiduciary duty, malice, breach of contract, inducing breach of contract, offences under the RTA, and claims for general, aggravated and punitive damages. In para. 113, Mr. Fiset required a trial by jury.
[59] Mr. Fiset acknowledged that he incurred a maximum of $7,170.01 in out-of-pocket expenses for hotel stays and cleaning services:
Pembroke Inn: October 18-19, 2021 $103.09
Pembroke Inn: October 20-21, 2021 $145.11
Pembroke Inn: October 21-22, 2021 $110.00
Holiday Inn: October 23-24, 2021 $263.14
Holiday Inn: October 24-November 13, 2021 $4,230.80
Holiday Inn: November 20-27, 2021 $1,357.37
Subtotal: $6,209.51
Renolux: December 10, 2021 $423.75
Renolux: December 10, 2021 $536.75
Total: $7,170.01
[60] Were it not for the alleged skin reaction to the spray and the anxiety attack, Mr. Fiset's complaint appears to be a less tenable version of the tenant's complaint in TST-64055-15 (Re), in which the tenant suffered great frustration and went to great lengths to solve a bedbug problem for which the landlord refused to accept responsibility. At para. 24, the Board stated:
The usual remedy on applications such as this is abatement of the rent. Abatement reflects the idea that if a tenant is paying rent for a bundle of goods and services and not receiving everything being paid for, then the rent should be abated in an amount that is proportional to the difference in value between what is being paid for and what is being received. Here, the Tenant's rent included the right to a pest free rental unit which he did not receive so I believe he is entitled to abatement of the rent for the period November 3, 2014 to March 25, 2015.
[61] Compared to the five-month period of inconvenience and distress, Mr. Fiset's landlord dealt with the bedbug infestation promptly. Closer examination of Mr. Fiset's account of events revealed that the real source of his unhappiness with the defendants was their denial that the spray residue was harmful after the four-hour waiting period.
[62] The claim for punitive damages arises from the conduct of the landlord, including the allegation that its employed superintendent, Mohammed Ali, left dog feces outside Mr. Fiset's door as part of a campaign of harassment.
[63] The tort claims described as breaches of the landlord-tenant relationship, including those sounding in intentional misconduct by the superintendent, do not allow Mr. Fiset to circumvent the exclusive jurisdiction of a specialized statutory tribunal. Mr. Fiset's allegations stemming from the Drione use, including the pest control company's alleged inadequate post-application removal of it, stem from the landlord's statutory duty to tend to the infestation. All principles of contract law arising from the tenancy come under the statutory remedies.
[64] Nevertheless, the legislation's imposition of positive duties on the landlord expands the availability of compensatory remedies beyond common-law principles such as the remoteness of damage described in Mustapha. Tort law bars recovery for Mr. Fiset's subjective overreaction to his believed skin contact with Drione residue. However, his evidence of his reaction would require the court or the LTB to consider whether the landlord responded reasonably in the service of a tenant with Mr. Fiset's sensitivities. The court must consider the range or measure of damages legally available to Mr. Fiset, even if his common-law claim should falter.
Mr. Fiset's Responding Record and Factum
[65] Mr. Fiset's responding record does not provide any detail about the underlying facts of his case, beyond his statement that he is "convinced that the allegations which are contained in my Statement of Claim will be corroborated and proven." Because he is a self-represented individual, for the purpose of the motion I accepted statements of fact in his factum at face value as constituting evidence responding to the motion. I also considered his oral submissions at the hearing, over defence objections that the submissions were not found in any evidence.
[66] In his factum, Mr. Fiset described the events following the two applications of the insecticide, two weeks apart in October 2021. On his return to the unit after the second application, he found white powder remaining on his furniture. He tried to contact the property manager to identify the powder. Because he received no immediate answer, he decided to stay in a hotel that night. The next day, the pest control contractor emailed him and told him the powder would not make him sick. Based on this assurance, he returned to the unit. His uninterrupted claim for hotel expenses contradicts this evidence, but I will take his oral submission that he may have come in contact with the powder while sitting in his chair and decided not to stay the night.
[67] Also suffering from questions of continuity was the narrative sequence about his identification of the powder and the need for an extended stay in a hotel:
I was advised by my doctor to leave the Unit until the Drione had been fully removed. As a consequence, I stayed in a hotel for about seven weeks.
[68] At the hearing, Mr. Fiset stated that during the nights he stayed in the hotel, he suffered tingling sensations in his body and was worried for his health. However, any physical harm was "minimal," and his real complaint was his loss of sleep. Asked to point to medical evidence such as a toxicology report or medico-legal opinion, he stated he did not obtain one. Instead, he repeated the following position from his factum:
My Affidavit of Documents is more than 2,500 pages long. Over 300 pages relate to correspondence I've had with the Pest Control Defendants, the Gowan Defendants, as well as with various government agency personnel, agents for Bayer, etc. My Affidavit of Documents also include about 250 audio recordings of conversations I had with various named Defendants, government agency personnel, agents for Bayer, etc. Dozens of the audio records relate to the matter relating to the misapplication of Drione, and its effects as outlined in my Claim. Those effects include the reaction my body had to Drione, the need for me to move to hotels for about seven weeks, the costs of medication, the need for me to drop four university courses I was taking at that time because of the anxiety I was experiencing, etc. The failure of the Defendants to act reasonably and appropriately, needlessly aggravated the situation, and they refused to properly co-operate and try to mitigate the damages.
[69] The most I could extract from Mr. Fiset's evidence and submissions in his favour was his belief that some exposed parts of his body, probably his forearms, came into contact with the powder. Beyond that, in the absence of clinical evidence, he speculated that he developed some kind of dermal reaction that caused him an anxiety attack. Beyond the manufacturer's data sheet regarding the product's potential toxicity, Mr. Fiset produced no evidence that his believed exposure was sufficient to cause his symptoms. The doctor's notes revealed no differential diagnosis or lab testing. The absence of evidence did not prove Mr. Fiset did not suffer a skin reaction to Drione, but it did establish that he would not be able to prove at trial that he did.
[70] The most I could extract from Mr. Fiset's evidence, taken at its highest, was that he may have had grounds to stay out of the apartment for a few days, and that the landlord and the pest control company's failure or refusal to take his demand for a better cleanup may have provided him with grounds to prolong his hotel stay. The ordinary remedy under traditional landlord-tenant law and under s. 30(1)2 of the RTA for a landlord breach regarding the state of the premises would be an abatement of rent. Since his claim for hotel expenses overlaps and exceeds such a claim, I am satisfied that there is no genuine issue requiring a trial to determine that Mr. Fiset's compensation for the disruption to his reasonable enjoyment of the unit cannot exceed the amount he has claimed for the seven-week hotel bill.
[71] Mr. Fiset's claim for mental distress is founded in the escalation of a foreseeable situational conflict between him and the landlord and not in an actionable personal injury. The seven-week hotel stay and disruption of his university course work represent emotional reactions entirely out of proportion to a temporary dermatitis condition. If one were to isolate the value of compensation for several days of a transitory skin condition and nights of lost sleep, it is difficult to find precedent for assessments of damages in similar cases.
[72] The moving parties submitted that Mr. Fiset's contact skin irritation claim was de minimus in nature. They probably would not be wrong, if his evidence on the motion were presented at trial and taken at its highest. Neither side was able to direct the court to an award of damages for this type of alleged injury. In Johnson v. Laing, 2004 BCCA 364, at paras. 1-6, the court provided an example of a jury verdict of $2,250 as reasonable only if the injury were "trivial and transitory." In invasion of privacy cases, analogous to Mr. Fiset's grievances arising from inconvenience disruption of shelter, plaintiffs tend to claim large amounts, but courts tend to award modest amounts between $500 and $25,000: Jones v. Tsige, 2012 ONCA 32, at paras. 76-80. There is no point in trolling through LTB decisions, because they would all be under the statutory limit.
[73] In Ayana v. Skin Klinic, at para. 301, this court assessed general damages of $35,000 for a painful and disfiguring laser hair removal procedure leading to post-traumatic stress disorder. In Nogueira v. O. Alasaly Pharmacy Ltd., 2014 BCSC 1237, at para. 43, the court considered a long list of damages awards and awarded $25,000 for chemical burns requiring repair through skin graft surgery. No cases are the same, but Mr. Fiset's skin condition was insignificant in comparison. A reasonable adult would also know that non-recurrent symptoms of a contact reaction meant he suffered no lasting injury. If one were to consider the maximum range of damage awards for Mr. Fiset's bodily and mental reaction to the Drione exposure – assuming it had occurred – it would likely be about $2,000 inclusive of hotel and outside meals.
[74] This assessment of the maximum general damages is independent of the hotel expenses. Seven weeks is a long and unexplained time to stay in hotels and to expect the landlord to reimburse, for these circumstances. Mr. Fiset's claim for $7,170.01 is therefore the maximum he could possibly recover as compensation for the breach of his rights as a tenant and for any de minimis personal injury related to a few days of skin tingling.
[75] If Mr. Fiset can prove his harassment claim, the LTB could fine the landlord or compensate him for his aggravation, whereas the claim is not compensable at common law in the court action. It is inconceivable that this court would award any amount approximating the $27,829.99 deficit between $7,170.01 for the trouble and upset he claims to have experienced because of the landlord's conduct. Until the claim reaches the $35,000 ceiling of the LTB exclusive jurisdiction, this court has no jurisdiction.
[76] I do not have to assess Mr. Fiset's damages or determine whether he even has a claim. The question on the motion for summary judgment is whether he is a "person … whose claim exceeds the Board's monetary jurisdiction." His claim cannot exceed $35,000. The claim is therefore within the LTB's exclusive jurisdiction.
4. Status of the Pest Control Defendants under the RTA
[77] In tort, a party engaging an independent contractor to perform specialized work is usually insulated from vicarious liability for the negligence of the contractor.
[78] Under paragraph 29(1)3 of the RTA, setting out the LTB's remedial jurisdiction over interference with tenants' reasonable enjoyment of the unit, the landlord's "agent" is not limited to the meaning in common-law agency. Under s. 31(1), the Board may make orders, including monetary orders, against the landlord and the agent. The LTB has employed a purposive interpretation of agency under the RTA that includes contractors retained by the landlord to discharge its obligations to the tenants, as third parties having separate statutory duties to ensure health and safety, including the treatment of units infested by bedbugs: TET-64613-15-RV (Re), at paras. 27-34, TST-64055-15 (Re), at para. 8.
[79] Because of the statutory authority of the LTB over agents, the court need not decide whether the exclusive subject-matter jurisdiction ousts remedies against parties outside the strict landlord-tenant relation. In Yang, the Court of Appeal quashed a legal proceeding against various agents and contractors of the insurer, even though the administrative tribunal's jurisdiction only covered disputes between the insurer and the insured.
[80] In Mr. Fiset's interactions with the defendants throughout the period in which the complaint relates to the spraying, he treated the pest control contractor as an agent of the landlord, in the common-law sense. He directly engaged with the contractor and did not engage with the landlord with any degree of exclusivity on the basis that the contractor was only an independent contractor. Deferring to the LTB's interpretation of agency under the RTA, I find that the Pest Control defendants were agents of the landlord for the purpose of the LTB's exclusive jurisdiction.
5. Security for Costs
[81] The moving parties sought, in the alternative to summary judgment, an order for security for costs. Their argument was that Mr. Fiset has become judgment-proof because of past litigation in which he has incurred sizeable unpaid costs awards.
[82] Because of my decision that the court has no jurisdiction to hear the action, it would be both moot and inconsistent to adjudicate this further issue. I therefore decline to rule on the motion for security for costs. For the sake of clarity, this disposition is without prejudice to the defendants moving before an associate judge for security for costs, in the event my decision to grant summary judgment is set aside on appeal.
Conclusion
[83] There is no genuine issue requiring a trial to determine that Mr. Fiset's claims can never amount to more than the $35,000.00 jurisdiction of the LTB. The action is therefore dismissed.
[84] The Gowan landlord defendants seek costs on a substantial indemnity scale in the amount of $18,419.00 or on a partial indemnity scale in the amount of $11,187.00. The Pest Control defendants seek costs based on full indemnity in the amount of $31,569.92, or partial indemnity in the amount of $21,541.75.
[85] Mr. Fiset is a former licensed paralegal and has been involved in prior litigation, for which he owes outstanding orders exceeding $500,000.00. The defendants suggested that he brought the action and pleaded a sum of damages of $600,000.00 because of his indebtedness. These are irrelevant considerations when fixing the costs.
[86] Mr. Fiset is evidently an intelligent adult. He grossly over-promised and underdelivered when the time arrived to prove he suffered a loss that was more significant than a temporary displacement and upset. Had the defendants not brought the motion and the case had proceeded to trial, the cost to community resources in terms of defence costs and court resources would conceivably have reached six figures. Under the Rule 57.01(1) factors, the most significant one applicable to this action is clause (f): the proceeding was "improper, vexatious or unnecessary." The Superior Court is already bursting at the seams and cannot upload landlord-tenant disputes such as Mr. Fiset's.
[87] Given Mr. Fiset's outstanding judgment debts, the award of costs will likely be symbolic. I award costs to the Gowan defendants in the amount of $18,000.00 and to the Pest Control defendants in the amount of $25,000.00. Both figures are inclusive of disbursements and HST.
[88] The necessity of Mr. Fiset's approval of any draft order is dispensed with.
Released: July 28, 2025
Akazaki J.