Limitations (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-18
CLNP Page ID:	191
Page Categories:	[Hearing Process (LTB)], [Limitations]
Citation:	Limitations (LTB), CLNP 191, <https://rvt.link/9q>, retrieved on 2024-04-18
Editor:	MKent
Last Updated:	2023/11/20

Authors Notes

This page has been impacted by changes made to the Residential Tenancies Act, 2006 S.O. post-September 1, 2021 the information below may be out of date.

Real Property Limitations Act, R.S.O. 1990, c. L.15

15 At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. R.S.O. 1990, c. L.15, s. 15.

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17 (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent. R.S.O. 1990, c. L.15, s. 17 (1).

Pioneer Corp. v. Godfrey, 2019 SCC 42 (CanLII)

[31] This Court has recognized that limitation periods may be subject to a rule of discoverability, such that a cause of action will not accrue for the purposes of the running of a limitation period until “the material facts on which [the cause of action] is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence” (Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), (1986) 2 S.C.R. 147, at p. 224]; Ryan, at paras. 2 and 22).

[34] Two points flow from this statement. First, where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire (Peixeiro, at para. 39).

[35] Secondly (and conversely), where a statutory limitation period runs from an event unrelated to the accrual of the cause of action or which does not require the plaintiff’s knowledge of his or her injury, the rule of discoverability will not apply. In Ryan, for example, this Court held that discoverability did not apply to s. 5 of the Survival of Actions Act, R.S.N.L. 1990, c. S-32, which stated that an action against a deceased could not be brought after one year from the date of death. As the Court explained (para. 24):

The law does not permit resort to the judge-made discoverability rule when the limitation period is explicitly linked by the governing legislation to a fixed event unrelated to the injured party’s knowledge or the basis of the cause of action. [Emphasis added; citation omitted.]

Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII)

[6] Where the Board has jurisdiction, the Small Claims Court has no jurisdiction because the jurisdiction of the Board is exclusive and not concurrent.

[13] This argument is contrary to the test in Mackie. It is not the label or title that one attaches to a claim that decides the jurisdiction issue. As Perell J. directs, the Court must consider the essential character of the dispute. To say that the plaintiff advances a tort claim or a claim in negligence, merely identifies a particular cause of action. It does not provide any insight into the essential character of the dispute.

[14] The Deputy Judge correctly identified the test and then applied it to the case. The essential character of the claims is captured by the exclusive jurisdiction of the Board. This is clear from s. 29(1) of the Residential Tenancies Act. It states in part as follows:

29(1) A tenant or former tenant of a rental unit may apply to the Board for any of the following orders:

1. An order determining that the landlord has breached an obligation under subsection 20(1) or section 161.

[20] The appellant commenced her action in the Small Claims Court after the expiry of the one year limitation period in s. 29(2) of the Residential Tenancies Act. This Court’s jurisdiction to entertain her claim is governed by s. 207(2) of the Residential Tenancies Act which states as follows: A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.

[21] Since the one year limitation period for making a claim to the Landlord and Tenant Board had already expired when the appellant issued her claim in the Small Claims Court, she had no right to seek relief from the Landlord and Tenant Board. It follows pursuant to s. 207(2) that since the claim was statute barred before the Board, it is likewise barred from being transferred to the Superior Court of Justice, since this Court can only exercise powers “that the Board could have exercised if the proceeding had been before the Board”.

Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442 (CanLII)

[13] The motion judge concluded that, although the estate’s 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 (CanLII), (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 Judge’s 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 deceased’s death). As the action was commenced within two years of the deceased’s 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.

Toronto Community Housing Corporation v. Allan Vlahovich, 2010 ONSC 1686 (CanLII)

[10] Our conclusion is consistent with the case law concerning limitation periods in respect of claims for nuisance (see Roberts v. City of Portage La Prairie, 1971 CanLII 128 (SCC), (1971) S.C.R. 481 (S.C.C.)). Member Rozehnal attempted to distinguish Roberts and similar cases that were brought to her attention on the basis that they involved the common law tort of nuisance rather than a statutory remedy and that the statutory limitation periods considered in those cases were worded differently from s.29(2).

[11] We see nothing in these distinctions that rises to the level of principle. There is no reason that the approach taken to this issue in Roberts should not be taken here. In addition, properly understood, the decision of this Court in Goodman v. Menyhart, [2009] O.J. No. 1602 is not inconsistent with our approach. In that case the Court ordered that an abatement extend back one year before the application had been made and no further. The only issue in that case was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application.

[13] Accordingly, we conclude that the Board erred in law in allowing an abatement of rent prior to the one year period preceding the making of the application.

SWL-17051-18 (Re), 2018 CanLII 88641 (ON LTB)

7. Section 87 of the Act specifically allows for a landlord to file an application for rent arrears. However, the definition of landlord does not include a former landlord. Once the landlord-tenant relationship has ended, it is too late for the Landlord to file an application about rent arrears with the Board. With the greatest of respect to the Deputy Judge who suggested otherwise, the proper forum for a former landlord to imitate a claim against a former tenant based in contract is the Small Claims Court.

8. In this case, the Landlord was no longer the Landlord at the time he commenced his claim for the arrears of rent. Therefore, he had no standing to file an application before the Landlord and Tenant Board.

9. This interpretation of the Board’s jurisdiction is consistent with the Divisional Court’s decision in Kipiniak v. Dubiel, 2014 ONSC 1344 (Div. Ct.). In that case, the landlord brought a claim in the Small Claims Court for “occupation rent” that had accumulated while the tenant appealed an eviction order made by the Board. The claim was brought one day after the tenants vacated the premises. At trial, the Deputy Judge found that rent remained unpaid during the eviction appeal, but held that she lacked jurisdiction to order payment of those arrears.

10. On appeal the Divisional Court held that the Board’s Order (which only addressed rental arrears that had accrued prior to the making of the initial order) did not extinguish a Landlord’s right to seek arrears for occupation rent that accrued after the date of that Order. The Court held that any application to seek occupation arrears was required to be made to the Board so long as the tenant remained in possession of the premises. However, once the tenant was no longer in possession, the Small Claims Court had jurisdiction to hear the claim, subject to its monetary jurisdiction and the provisions of the Limitations Act.