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
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
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
In particular, 3 significant court
decisions can assist a party in determining the proper venue to file a claim:
 Mackie,  Efrach.) and  Kiselman.
 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.”
 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.
 Kiselman v. Klerer, 2019 ONSC 6668 (CanLII)
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
 Fei Hu v Lee, 2016 CanLII 78566 (ON
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
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
 Fraser v. Beach, 2005 CanLII 14309 (ON CA)
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.
 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 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.
From the preceding examples presented,
one can see that suing in the correct court or tribunal is often not easy to
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.
Every day I receive calls from landlords
wanting to hire me for LTB matters.
If you need to hire an experienced, licensed paralegal contact me:
(416) 229-1479 or (343) 600-7722