Ontario decision has affirmed the principle that all claims for
damage caused by a tenant during a tenancy must proceed before the
Landlord and Tenant Board (the “Board”) and not in the
Superior or Small Claims courts.
After about a six year tenancy, the tenant fell behind on rent.
The landlord brought an application to evict the tenant. The
tenant vacated the unit shortly after being served with the
application materials and did not attend the eviction hearing.
As part of the eviction hearing the landlord sought arrears
of rent, including hydro arrears. The Board terminated the tenancy
and awarded payment for arrears of rent but did not award payment
of the hydro arrears. No reason was given by the Board as to why
they did not award the hydro arrears.
The landlord brought a subsequent proceeding in Small Claims
Court for the hydro arrears and for the cost of repairing that was
done to the unit during the tenancy.
The Small Claims Court judge canvassed the legal authorities and
noted that if the subject-matter is expressly or inferentially
governed by the Residential Tenancies Act, 2006 (the
“Act”) then the claim falls within the exclusive
jurisdiction of the Board.
The Deputy Judge held that the hydro arrears constituted
“rent” under the Act and therefore the claim in that
respect must be dismissed for lack of jurisdiction.
The Deputy Judge also held that the damage to the unit ought to
have been discovered by the landlord during the term of the tenancy
if he had used reasonable diligence. Given that the damage occurred
during, and not after, the tenancy the judge ruled that a
claim for compensation for these damages was also under the
exclusive jurisdiction of the Board.
The court noted:
While it may be an inconvenience to landlords if the law
effectively requires an end-of-tenancy inspection simply to protect
against the potential jurisdictional conundrum seen in this case,
in my opinion that inconvenience is justified compared to the
alternative of routinely causing simply residential tenancy matters
to be divided into two separate proceedings before two different
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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