Exclusivity of Jurisdiction:

Question:Is my landlord-tenant dispute supposed to be filed with the Landlord Tenant Board or Small Claims Court in Ontario?

Answer:In Ontario, most residential landlord-tenant disputes go to the Landlord Tenant Board because Residential Tenancies Act, 2006, s. 168, S.O. 2006, c. 17 gives the Board exclusive jurisdiction for the kinds of claims typically between landlords and tenants;   however, some matters are ousted from the Board’s authority and must be started in Small Claims Court, which is why it is important to match the legal issue to the correct forum (for example, rent arrears and tenant damage claims are often treated as Board matters even if filed after the tenant moved out per Kiselman v. Klerer, 2019 ONSC 6668).   If your situation involves rent deposits, damage, rent loss, or timing issues that can create multiple proceedings, the right filing choice can prevent dismissal for lack of jurisdiction;   Empowered Legal Services can help by having a professional legal advocacy team review your facts, identify the proper forum, and prepare the correct submissions through the appropriate process (Lawyer & Paralegal support available).   Call (855) 808-6510 to get started today.

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Is a Case a Landlord Tenant Board or Small Claims Court Issue?

Where a dispute between a landlord and a tenant should be initiated can be very challenging to determine.  For some issues, depending on whether the tenant is still living in the unit, the matter must proceed at the Landlord Tenant Board; and yet, for the same issue, if the tenant already moved out, or failed to move in, the matter is barred from proceeding at the Landlord Tenant Board.  The rules on where a legal case should be started can be confusing.  Further, if a case is started in an improper venue, the case may be tossed out, perhaps with the inability to start again in the proper venue.  For these reasons, it is very important to review the case issues and the law requiring jurisdiction to ensure that the case is properly commenced.

Note: Please contact Empowered Legal Services by phone at: (855) 808-6510 to discuss any specific questions that you may have.

The Law

In most cases involving a dispute between a residential landlord and tenant, the Residential Tenancies Act, 2002, S.O.  2006, Chapter 17 will be applicable.  With most cases the legal issue in dispute is conferred upon the Landlord Tenant Board for exclusive decision making authority per section 168 of the Residential Tenancies Act, 2006,  Where certain decisions must be made by the Landlord Tenant Board, the jurisdiction of the Small Claims Court is ousted; Brydges v. Johnson, 2016 CanLII 4942; Finney v. Cepovski, 2015 CanLII 48918 at 17; Efrach v. Cherishome Living, 2015 ONSC 472 at 6; Mercier v. Hawco, 2014 CanLII 141 at 6 to 7; Fraser v. Beach, 2005 CanLII 14309 (ON CA) at 15.  Unfortunately, the Residential Tenancies Act, 2006 provisions can at times be unclear and cause confusion as many provisions are vague and perhaps conditional.  Accordingly, when some specific legal issues arise, determining whether the matter must proceed at the Landlord Tenant Board can become difficult.

In the recent decision within Kiselman v. Klerer, 2019 ONSC 6668 the Divisional Court addressed the frequently occurring, and confusing, issue regarding whether a landlord is required to pursue a former tenant for concerns of rent arrears as well as damage caused to the rental unit at the Landlord Tenant Board or at the Small Claims Court. The Division Court stated:

Multiplicity of Proceedings

Sometimes the jurisdiction conditions can cause a multiplicity of proceedings occuring in two places such as where tenancy relations break down prior to the move-in date whereas the tenant must apply to the Landlord Tenant Board for return of a rent deposit as governed by section 107(1) of the Residential Tenancies Act, 2006; and yet, the landlord may be forbidden from applying to the Landlord Tenant Board per the section 87(1) condition that require the landlord's access to the Landlord Tenant Board be available for certain matters only if the tenant is in possession of the rental unit.  For example, this circumstance often occurs where a tenant tries to 'opt out' of a lease at the last moment, for whatever other reason, by failing to occupy the rental unit and then subsequently seeking return of a first and last rent deposit.  Regardless of the reason the tenant seeks return of the rent deposit, the tenant must pursue the return of the rent deposit at the Landlord Tenant Board per section 107(1) which provides that the Landlord Tenant Board may hear a case about why the rent deposit should be returned and this section coupled with the section 168 exclusive jurisdiction provision imposes the absoluteness of the requirement that the rent deposit question be decided by the Landlord Tenant Board.  Contrarily, in the same situation, if the landlord wishes to claim loss of rent arising from the 11th hour opt out by the tenant, the landlord must proceed to the Small Claims Court by virtue of inaccess to the Landlord Tenant Board that arises from thesection 87(1) condition that the landlord may seek rent arrears from the Landlord Tenant Board only if the tenant remains in possession of the rental unit - and in this situation the tenant failed to take possession of the rental unit.  It is interesting to note that the tenant may be with good reason to opt out at the last moment, the tenant may even be in the right with a good enough reason to 'win'; however, the tenant must pursue return of the rent deposit via the Landlord Tenant Board and the landlord must pursue the loss of rent at the Small Claims Court despite the multiplicity of proceedings problem that arises.

With the above said in regards to a multiplicity of proceedings, principles of natural justice may permit, and perhaps require, that one of the proceedings be stayed until a decision is made in the other forum and then the decision in the matter that was stayed may need to follow the factual decisions in the matter decided upon first.  This procedural Stay of one of the two processes ensures that the risk of two opposing factual decisions are avoided whereas two opposing factual decisions would put the administration of justice into disrepute.

Conclusion

If a case involving a landlord and tenant is taken to the wrong venue, the case may be thrown out.  Frustratingly, some legal issues must proceed and be heard at the Landlord Tenant Board and other issues must be heard elsewhere, such as the Small Claims Court.  If a case is started at the wrong venue, such as choosing the Landlord Tenant Board or a case that must be heard in Small Claims Court, or vice versa, the case will be thrown out.  If a case gets thrown out because the case was brought into the wrong venue, due to limitation periods that may be applicable, it may be too late to start again in the proper venue.  Accordingly, bringing a case into the proper venue is best done right the first time.