



COURT OF APPEAL FOR ONTARIO

CITATION: Letestu Estate v. Ritlyn Investments Limited, 2017
    ONCA 442

DATE: 20170601

DOCKET: C62806

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

The Estate of Armand
    Letestu, deceased,

by its Litigation
    Guardian, Christopher Letestu

Plaintiff (Appellant)

and

Ritlyn Investments Limited

Defendant (Respondent)

Barry A. Percival Q.C., Daniel Zacks and Joel P. McCoy,
    for the appellant

Kenneth J. Raddatz and Kieran C. Dickson, for the
    respondent

Heard: May 18, 2017

On appeal from the judgment of Justice James W. Sloan of
    the Superior Court of Justice, dated October 19, 2016, with reasons reported at
    2016 ONSC 6540.

By the Court:

OVERVIEW

[1]

In December 2011 the appellant estate commenced an action for damages
    for injuries the deceased suffered when he allegedly slipped and fell over a
    damaged carpet in his residential rental unit. The action claims $500,000 in
    damages from the respondent, the owner and manager of the apartment building.
    It was commenced 23 months after the alleged slip and fall.

[2]

The respondent, on the eve of trial, moved under rule 21 of the
Rules
    of Civil Procedure
to strike the claim on the basis the Superior Court had
    no jurisdiction to hear it.

[3]

The motion judge dismissed the estates action, after concluding the
    claim fell within the exclusive jurisdiction of the Landlord and Tenant Board
    (the Board) over the subject matter, and was outside the one-year limitation
    period prescribed under s. 29(2) of the
Residential Tenancies Act
,
    2006, S.O. 2006, c. 17 (the Act). The estate appeals.

[4]

For the reasons that follow, we conclude
    the motion judge erred in law in his determination that the Superior Court
    lacks jurisdiction over the claim because it was commenced after the one-year
    limitation period under the Act had expired. As we explain, a plain reading of
    the relevant statutory provisions leads to the contrary conclusion.

ANALYSIS

(1)

The Superior Court Has Jurisdiction over the Claim

[5]

A plain reading of the four relevant provisions of the Act demonstrates the
    Act does not grant the Board exclusive jurisdiction over all claims of
    non-repair against a landlord. In this case, the Superior Court has
    jurisdiction.

[6]

Section 29(1) of the Act provides for a
    tenant or former tenant of a rental unit to apply to the Board for a variety of
    orders, including that the landlord breached an obligation under s. 20(1) (the
    landlords duty to repair).

[7]

Section 168(2) provides that the Board
    has exclusive jurisdiction to determine all applications under the Act and
    with respect to all matters in which jurisdiction is conferred on it by this
    Act.

[8]

Section 207(1) provides that 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.
[1]


[9]

Section 207(2) of the Act, provides that
    a person entitled to apply under the Act but whose claim exceeds the Boards
    monetary jurisdiction may commence a proceeding in [court] for an order
    requiring payment of that sum andthe court may exercise any power that the
    Board could have exercised if the proceeding had been before the Board and
    within its monetary jurisdiction.

[10]

Thus, the Act does not grant the Board exclusive jurisdiction over all
    claims of non-repair against a landlord. Rather, the Board has jurisdiction
    over a tenants or former tenants claim for damages (as well as other claims
    within the Boards authority) where the essential character of the claim is
    for non-repair and within its monetary jurisdiction:
Mackie v. Toronto
    (City) and Toronto Community Housing Corporation
, 2010 ONSC 3801, [2010]
    O.J. No. 2852. The Boards jurisdiction, however, is not exclusive by virtue of
    s. 207(2):
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para.
    15.

[11]

B
ecause 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.  And, through the operation of s. 207(2), the court would be able
    to make any order the Board could have made in addition to any relief it could
    grant in a court proceeding.

[12]

It is unnecessary for the purpose of this
    appeal to decide whether other factors would have taken the claim outside the
    jurisdiction of the Board had the damages claimed been less than the monetary
    limit for the Small Claims Court  including (i) the fact that the action
    asserted claims under the
Occupiers Liability Act
,
R.S.O. 1990, c. O.2
and (ii) the status of the appellant as the estate of a deceased tenant.
    See, for example, the discussion in
Mackie

at paras. 43-44, as to the effect of claims under
    other legislation on the essential character of the claim, which in each case
    is determined based on the factual context.

(2)

The Limitation Period for Applications to the Board Does Not
    Apply

[13]

The motion judge concluded that, although
    the estates claim exceeded the monetary jurisdiction of the Board, the action
    had to be commenced within the one-year limitation period for applications to
    the Board under the Act (s. 29(2)) before the court could assume jurisdiction.

[14]

In arriving at this conclusion, the motion judge followed
Efrach v.
    Cherishome Living
, 2015 ONSC 472,
[2015]
    O.J. No. 293
(Div. Ct.), a decision of a single judge of the Divisional
    Court upholding an appeal from the Small Claims Court. The appeal judge in
Efrach
agreed with the Deputy Judges characterization of the claim as one of
    non-repair
[2]
and held that the Board had exclusive jurisdiction. In the part of her decision
    that is relevant here, she refused leave to amend the claim to permit damages
    exceeding the monetary jurisdiction of the Board, and to transfer the action to
    the Superior Court. She reasoned that, after the expiry of the one year
    limitation period for making a claim to the Board, the claim could not be
    transferred to the Superior Court since that court can only exercise powers
    that the Board could have exercised if the proceeding had been before the
    Board: at para. 21.

[15]

While we express no opinion on the result
    in
Efrach
,
we disagree with the
    conclusion that the one year limitation period for applications to the Board applies
    to actions before the Superior Court for non-repair. The motion judge here
    erred in following the reasoning in
Efrach
and concluding that the court lacked jurisdiction
    over the action.

[16]

There is simply no basis for importing
    the limitation period prescribed by the Act for applications to the Board into
    an action of this kind. The limitation of actions is governed by the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sch. B. and,
    pursuant to s. 19, the limitation periods listed in the schedule to that Act (including
    s. 38(3) of the
Trustee Act
,
    R.S.O. 1990, c. T.23 which requires a tort action by an estate to be commenced
    within two years of the deceaseds death). As the action was commenced within
    two years of the deceaseds death (and indeed within two years of the alleged
    slip and fall), there is no question of the expiry of any limitation period to
    bar the action.

[17]

Accordingly, the Superior Court has
    jurisdiction over the action and the claims are not statute-barred.

CONCLUSION

[18]

The appeal is allowed. Costs of the appeal to the appellant fixed at
    $10,000, inclusive of HST, plus disbursements in the amount of $3,987.76. Given
    the result, the appellant is awarded its costs of the motion below in the
    all-inclusive amount of $7,500.

Released: HSL JUN 1 2017

H.S. LaForme J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.





[1]

The monetary jurisdiction of the Small Claims Court is $25,000



[2]
The claim was for damages resulting from a break-in of the appellants rental
    unit, allegedly by entry through an unoccupied and unlocked neighbouring unit.


