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Which is the Proper Venue to File my Ontario Landlord and Tenant Dispute?

The Residential Tenancies Act outlines which landlord and tenant disputes fall under the jurisdiction of the Landlord and Tenant Board (LTB).

The LTB has the exclusive jurisdiction to decide such matters. Any issues not covered in the Residential Tenancies Act (RTA) as being in the LTB jurisdiction must be decided by a different appropriate court. While most landlord and tenant disputes are resolved by the LTB, depending upon various circumstances, not all are. Therefore, it is critical to know which court or tribunal is the correct venue in which to initiate your claim.

If you file in the wrong venue, the court or board will dismiss your case if they do not have the jurisdiction to resolve it.

By the time you are made aware that you have filed in the wrong venue, the timeframe to submit an application to the proper venue may have expired and you will be left with no legal recourse.

Below is an example illustrating how different circumstances affect the determination of the correct venue to apply to if a landlord is submitting an application for rent owed or damages to an apartment.

If the application is initiated while the tenant is living in the rented property, it should be done though the Landlord and Tenant Board.

A similar application submitted after the tenant has vacated the premises should be done though the Small Claims Court. (However, a recent case presented below has put this long-standing practice into question.)

Note that for any landlord or tenant claim exceeding $35,000 (the current monetary jurisdiction of both the Landlord and Tenant Board and the Small Claims Court,) the proper venue for the application is the Superior Court of Justice.

In addition, if you choose to have legal representation by a paralegal, they can represent you in a LTB or Small Claims Court case but not in a Superior Court case. You would need a lawyer in that venue.

Determining whether to sue in the Landlord and Tenant Board or in Small Claims Court is often not as simple as it first appears to be.

If you are contemplating self-representing yourself, you risk having your case dismissed if you submit your application to the wrong court or board. But, if you hire a licensed paralegal or a lawyer, and they incorrectly advise you to sue in a court or tribunal that does not have the jurisdiction to hear your case, you are protected from their negligence by the errors and omissions insurance they are required to carry. (See www.lso.ca  for more information.)

Note, also, that only a small number of lawyers in private practice deal with landlord and tenant matters on a regular basis. So, many are quite inexperienced with LTB cases.

Hire an experienced, licensed paralegal to increase your odds of obtaining a successful outcome, and to save you time, money and frustration.

I list a number of cases below pertaining to landlord and tenant disputes that were dismissed for being in the wrong jurisdiction.

In particular, 3 significant court decisions can assist a party in determining the proper venue to file a claim: [1] Mackie, [2] Efrach.) and [3] Kiselman.

[1] Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801 (CanLII) http://canlii.ca/t/2bf5v

The tenants residing in a community housing project brought a class action claim against the corporation to compel it to carry out repairs needed on the premises. 

Even though the LTB has the jurisdiction to hear disputes regarding a landlord’s obligation to maintain the premises in a proper state of repair, the tenants attempted to characterize the repair claims more broadly as negligence and breaches of the Ontario Human Rights Code and the Charter of Rights and Freedoms.

They took their claim to the Superior Court of Justice which determined that:

“It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims. Further, it is my opinion that characterizing the claims as a negligence claim or as an Ontario Human Rights Code or Charter claim does not infuse the Superior Court with jurisdiction. From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.”

[2] Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII), http://canlii.ca/t/gg2dv   

The apartment next door to a tenant was left unlocked. The tenant alleged that someone entered through the open door, climbed over the balcony, and broke into his apartment. He sued his landlord for negligence in Small Claims Court.

The court determined that the tenant’s claim was filed in the wrong forum, and so dismissed it. The tenant appealed to the Divisional Court. The court used the test of the essential character of the claim as done in Mackie.  The Divisional Court agreed with the Small Claims Court that the essential character of the claim (lack of maintenance) fell within the exclusive jurisdiction of the LTB, and thus dismissed the appeal.

[3] Kiselman v. Klerer, 2019 ONSC 6668 (CanLII) http://canlii.ca/t/j3g30  

Eleven months after moving out, a landlord sued his former tenant, in Small Claims Court, for rent owed, and undue damages to the apartment. The tenant made a motion to dismiss the action, arguing that the LTB had exclusive jurisdiction to deal with these issues.

The Small Claims Court deputy judge dismissed the action stating:

“….the Residential Tenancy Board is the forum to go to in a landlord/tenant dispute.  They have the expertise and the protocol to deal with these matters.”

The RTA, in sections 87(1)(b) and 89(1), clearly states that the LTB loses jurisdiction to hear a landlord’s claim for unpaid rent and undue damages after a tenant has vacated the apartment.

The landlord appealed to the Divisional Court. The Divisional Court, unbelievably, agreed with the deputy judge that the Small Claims Court lacked the jurisdiction to hear the case.

On November 19, 2019, the Divisional Court released the Kiselman decision. This decision will, for the foreseeable future, make it difficult for a landlord to determine the proper venue in which to sue a former tenant after they have vacated the apartment.

Also, since this case was decided by the Divisional Court, it is binding on Small Claims Court deputy judges and Landlord and Tenant Board members to follow the ruling of the Divisional Court.

So, a landlord suing a tenant after they have vacated the premises, needs an experienced, paralegal familiar with case law to persuade the court or board that they are not required to follow the Kiselman decision.

[4] Fei Hu v Lee, 2016 CanLII 78566 (ON SCSM), http://canlii.ca/t/gvmv3

Two weeks before the termination of a tenancy, a tenant and landlord made an oral agreement to split the cost of replacing flooring damaged by the tenant’s dog. It was agreed that the landlord would repay their part of the repair cost shortly after the end of the tenancy.

The tenancy ended on April 30, 2015.The former landlord found a cheque they had received from the tenant post-dated for February 2015. On May 4, 2015, they deposited that cheque.

The tenant sued the landlord in Small Claims Court for theft; for conversion of funds that took place after the tenancy ended, and for the money owed for the split repair costs.

The Small Claims Court considered whether the cashing of the cheque could be characterized as an illegal retention of money under section 135(1) of the RTA.

The court determined that section 135(1) would apply only if the cheque had been deposited during the tenancy. Since the transaction took place after the tenancy had ended, the LTB did not have exclusive jurisdiction to decide the case (The deposited cheque was later revealed to be an erroneous duplicate payment cheque for February.)

In regards to splitting the cost of the floor repair, even though the agreement was made during the tenancy, the landlord’s obligation to pay did not commence until after the termination of the tenancy.

Given the circumstances in the case, and since the court was not aware of any application the former tenant could make to the LTB, it was determined that the Small Claims Court retained jurisdiction.

 [5] Fraser v. Beach, 2005 CanLII 14309 (ON CA) http://canlii.ca/t/1k8v3

The neighbors of an illegal rooming house, by way of an injunction, sought the eviction of the tenants. They made an application in the Superior Court of Justice. The Superior Court granted the injunction and ordered the eviction of the tenants.

The tenants appealed to the Ontario Court of Appeal. The Court of Appeal found the Superior Court made an error granting an eviction by way of an injunction. It set aside the eviction order finding that the authority to evict is exclusive to the LTB.

[6] Spirleanu v. Transglobe Property Management Service Ltd., 2015 ONCA 187 (CanLII), http://canlii.ca/t/ggqqr

Following an LTB eviction order, a tenant’s personal belongings were discarded.

The tenant claimed that the landlord should be liable for the wrongful disposal of his property and took his claim to the Small Claims Court and lost.

He then went before the Superior Court of Justice to re-litigate whether his property was wrongfully disposed of by the landlord.

The Ontario Court of Appeal found that, under section 41 of the RTA, a former tenant is permitted to sue at the LTB for the wrongful disposal of their belongings after an eviction.

Therefore, the jurisdiction of the civil courts was ousted.

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From the preceding examples presented, one can see that suing in the correct court or tribunal is often not easy to determine.

You need a Landlord and Tenant Board expert, an experienced, licensed Ontario paralegal or lawyer, to determine the proper venue to bring your claim. These are just some of the cases your paralegal or lawyer should consider to prevent your claim from being dismissed.

* This blog is not intended for self-represented landlords or tenants to determine the proper court or board to bring a claim.

Paralegal Representation

Every day I receive calls from landlords wanting to hire me for LTB matters.

 If you are in Toronto or the GTA and you need to hire an experienced, licensed paralegal contact me:

Marshall Yarmus

Civil Litigations

(416) 229-1479

https://civilparalegal.com/home_services/landlord-and-tenant-board/

If you currently have a case before the Landlord and Tenant Board, or are in the process of filing one, please make an appointment to come in for a free consultation at https://www.civilparalegal.com/appointment/