Attornment (Re: Jurisdiction)
11. Exclusive jurisdiction means that if a matter is within the Board’s jurisdiction within the meaning of s. 168(2), no other tribunal or court can have jurisdiction over that matter. Simply put, if the Board’s exclusive jurisdiction is triggered, the court’s jurisdiction is ousted: Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (C.A.).
12. In this case the Board had jurisdiction over the question of rental arrears and it exercised that jurisdiction at the landlord’s request. It determined the issue of rental amounts owing and furthermore it terminated the tenancy effective June 14, 2013 and determined the per diem rent payable up until the tenant moved out.
13. Accordingly it is obvious as a question of law that this court has no jurisdiction to entertain the landlord’s claim for further rental arrears. In addition it is obvious that the issue is res judicata because it has already been finally determined by a tribunal of competent jurisdiction in a prior proceeding between the same parties. Thirdly the claim is untenable in law because the tenancy was terminated by order of the Board and there was no requirement for the tenant to give separate or additional notice of his departure.
16. In closing submissions the landlord asked for damages of $4,791.62 plus $1,600 as one month’s rent because the unit was unrentable for that period. That claim is dismissed for the following reasons.
17. First of all I find that this part of the claim falls within the Board’s exclusive jurisdiction.
18. As the Board specifically noted in its review order, the landlord’s claim for damages could have been the subject of an application to the Board. I agree with that finding. If his claim could have been made before the Board, and in a dispute which in fact proceeded before that tribunal, in my view it is not open to a landlord to carve out what he may view as a separate issue within the same dispute and reserve it for a later claim in Small Claims Court. To hold otherwise would be inconsistent with the very nature of exclusive jurisdiction.
19. I reject the suggestion that if the landlord did not in fact discover the damage until after the Board’s order, this claim is properly left to the Small Claims Court. Landlords have a statutory right of inspection and may exercise that right, if so advised, prior to a hearing before the Board on other issues such as rental arrears: see Merlihan v. Hunter,  O.J. No. 5936 (Sm. Cl. Ct.), at para. 12; Athanassiades v. Lee, (2010) O.J. No. 4605 (Sm. Cl. Ct.); Fusek v. Scharbach,  O.J. No. 4174 (Sm. Cl. Ct.).
20. I find that this part of the landlord’s civil claim is barred by s. 168(2).
1. Tenant’s counsel (TC) stated the Tenant does not want to attorn to the jurisdiction of the Board as he believes the matter in the application is being handled at a higher court, namely the Ontario Superior Court of Justice, where the parties are currently involved in civil action respecting ownership to a property (i.e. the rental unit), which is the subject of a claimed agreement to purchase that failed to close.
2. Both TC and Landlord’s counsel (LC) confirmed that discoveries have been held and they are awaiting the scheduling of a trial date for later this year.
12. As well, the exclusive nature of the Board’s jurisdiction was confirmed by the Ontario Court of Appeal (ONCA) in Fraser v. Beach, 2005 CanLII 14309 (ONCA), 2005. In that case which involved residential tenants (in an illegal rooming house) and their neighbours, the ONCA identified that the “single legal issue in this appeal is whether the Superior Court of Justice has jurisdiction to order the eviction of the tenants, or whether the Ontario Rental Housing Tribunal [now the Landlord and Tenant Board – my insert] has exclusive jurisdiction to do so”.
13. The ONCA concluded that the Act applied to the relationship between landlords and tenants and that the Board did have exclusive jurisdiction over termination of residential leases.
14. Finally, in Kim v. Salomon, 2017 ONSC 7224 (CanLII), the tenant argued because he had commenced a proceeding in the Superior Court seeking to set aside the sale of the property in question and compensation for repairs the Tenant claimed to have made to the property, the Board lacked the jurisdiction to consider the landlord’s application (based on an N12 notice). The tenant also argued that the Board proceeding should have been adjourned until after a motion with respect to his Superior Court case was heard.
15. The Superior Court of Justice found (at paras. 18 and 22) that there was no overlap between Superior Court proceeding and the Board’s proceeding, so that the Board’s refusal to grant an adjournment to await the outcome of the Superior Court motion was not a breach of procedural fairness.
16. Therefore, with respect to TC’s initial statement that the Tenant does not want to attorn to the jurisdiction of the Board, I find the Board’s jurisdiction is not ousted by the Tenant’s Superior Court proceedings.
17. I therefore find that the Board has jurisdiction to hear this L2 application.
 A party cannot attorn to the jurisdiction of a court if that court does not have jurisdiction in the first place.
 The plaintiff also points to Halsbury’s Laws of Canada – Conflict of Laws Commencement of a Claim, HCF-6 (2016 Reissue), Janet Walker:
- Appearance to defend on the merits. Defendants who appear to defend the action on the merits implicitly consent to the jurisdiction of the court to determine the controversy. This is sometimes called “attornment”. Entering an appearance solely to contest jurisdiction is not regarded as attornment. The former practice of preserving the right to challenge jurisdiction by entering a conditional appearance has been replaced by the practice of determining jurisdictional challenges at the outset before a defendant enters a defence on the merits. Once a party takes steps to contest the merits of the claim, rather than the court's jurisdiction, even if those steps are taken in error, or with express notice of the intention to challenge jurisdiction, the party will be precluded from challenging the jurisdiction of the court, whether in respect of the whole of the claim or of a part of it. In some circumstances, attornment may be regarded also as an acceptance of the court as a convenient forum. (emphasis added)
 While the defendant submits that the plaintiff was not taken by surprise or prejudiced by the claim challenging the jurisdiction of the court, that is not the test. Attorning to the jurisdiction of the court is not a technicality, as the defendant submits. The test is whether the party goes beyond challenging the jurisdiction of the court (Fraser v. 4358376 Canada Inc., 2014 ONCA 553 (CanLII) at para. 14).
 Other cases support that the defendant has attorned to the jurisdiction of the court. In M.J. Jones Inc. v. Kingsway General Insurance Co. 2004 CanLII 6211 (ON CA), (2004) O.J. No. 3286 (ONCA) at paras. 20-22 the court says:
- 20 A foreign defendant is also precluded from contemporaneously disputing jurisdiction simpliciter and defending on the merits. Otherwise, litigants would incur unnecessary litigation costs in a claim which, as it may turn out, the court did not have jurisdiction to determine in the first place.
- 21 Further, if foreign defendants were permitted to defend contemporaneously on the merits and to dispute jurisdiction, then, in addition to the possibility of unnecessary expense, a defendant could retreat if it appeared that the success of their defence was in jeopardy.
- 22 Accordingly, it is well-accepted law that a foreign defendant that engages on the merits of the action will be taken to have "attorned" to the domestic court's jurisdiction…
That was reiterated in Strugarova v. Air France, 2009 CarswellOnt 9412 (ONSC) at paras. 50 and 51:
- 50 With respect to the issue of attornment by the filing of a statement of defence, I am of the view that I am bound by the Ontario Court of Appeal's decision in M.J. Jones Inc. v. Kingsway General Insurance Co., 2004 CanLII 6211 (ON CA), (2004) O.J. No. 3286 (Ont. C.A. (In Chambers)). In that case, the Ontario Court of Appeal was asked to determine whether or not the act of filing a statement of defence would constitute attornment, notwithstanding that the defendant was clearly disputing the forum for the hearing of the action. The Court of Appeal stated that the filing of statement of defence would constitute attornment to the jurisdiction where the defence was filed (see: paras. 19 to 22).
- 51 The Ontario Court of Appeal's approach is the same as the reasoning and the conclusion by the Court in Vertzyas v. Singapore Airlines Ltd., supra. In that case, where the defendant had sought to defend proceedings both on jurisdictional issues and on the merits up to the date of hearing, the Court held that the combination of those acts constituted a submission to jurisdiction whereby the defendant waived its right to object to the jurisdiction of the Court (paras. 107 to 110).