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Were you injured on your landlord’s property?

One of the most critical decisions involving limitation periods in recent history is the decision Letestu v. Rityln Investments Ltd., [2016] O.J. No. 5422 because the Court held that a personal injury claim involving a tenant and landlord is subject to the one year limitation period in the Residential Tenancies Act, 2006 (RTA) and not the basic two year limitation period in the Limitations Act, 2002 (Limitations Act) for starting an action.

Section 2 of the Limitations Act applies to “claims pursued in court proceedings”.  The Limitations Act does not state that it applies to claims brought before administrative tribunals, such as the Landlord and Tenant Board (Board), which is an administrative tribunal established under the RTA.

On January 11, 2010, the plaintiff, Mr. Letestu allegedly tripped over some “worn, torn and unsecured carpet” in his living room and fell, sustaining physical injuries.  The plaintiff alleged he made prior complaints about the condition of the carpet to the defendant landlord, which took no steps to fix the carpet.  Therefore, on December 15, 2011, the plaintiff commenced an action against his landlord in the Superior Court of Justice for negligence and for failure to follow its duties under the Occupier’s Liability Act.

The defendant brought a motion to strike the plaintiff’s claim on the basis that the Superior Court had no jurisdiction to hear the case and the plaintiff should have brought his matter before the Board.

In support of its position, the defendant made the following arguments:

  • The nature of the dispute involves allegations arising from disrepair, which is within the exclusive jurisdiction of the Board, regardless of how the allegations are pleaded.
  • Claims such as the plaintiff’s must be brought within one year and after the one-year period expires, the Board no longer has jurisdiction.
  • The powers of the Board are extended to the Superior Court for claims exceeding $25,000, but only where the claimant would otherwise have been entitled to apply to the Board, if the damages claimed were equal to or less than $25,000.
  • The statement of claim was issued more than one year after the alleged incident.
  • The Limitations Act does not apply to administrative tribunals such as the Board.
  • The decision Mackie v. Toronto (City) 2010 ONSC 3801 is identical to the plaintiff’s case wherein the court held that the Board had exclusive jurisdiction to resolve the tenants’ repair claims.
  • It is not the label or title that one attaches to a claim that decides the jurisdiction issue. 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: Efrach v. Cherishome Living 2015 ONSC 472.

In response, the plaintiff argued that the RTA only provides the Board with jurisdiction to hear matters up to the limit of the Small Claims Court; otherwise, the Superior Court has the power to make any order that the Board could make.  Further, any action in the Superior Court is governed by the Limitations Act which provides for a two-year limitation period.  The plaintiff framed his action under the Occupiers’ Liability Act and, therefore, the one year limitation period set out in the RTA does not apply.

In the alternative, the plaintiff argued:

  • Nowhere in the RTA does it limit the landlord responsibilities under any other act, including the Occupiers’ Liability Act.
  • The limitation period in the RTA should be void in this court, as it does not allow for any discoverability principle.
  • Even if the one-year limitation period applies, the condition of non-repair continued to exist until the plaintiff’s death on May 14, 2011 and accordingly was an ongoing default and the action was commenced within the one-year time.
  • By their involvement in this action, the defendants have attorned to the jurisdiction of the Superior Court.
  • The defendants have not brought this motion promptly.

In the end, the Court found that the specific nature of the complaint in this action is for “want of repair”.  Based on the reasoning in the Mackie decision, the Court held that the Board has exclusive jurisdiction over the subject matter of the plaintiff’s claim.  Further, sections 168 and 174 of the RTA give the Board exclusive jurisdiction over matters set out in the RTA.   In addition, section 2 of the Limitations Act makes it clear that the Act applies to “claims pursued in court proceedings”.  Accordingly, the Board has exclusive jurisdiction over the subject matter and, therefore, the action must be commenced within the one-year limitation period before the Superior Court can assume jurisdiction for claims exceeding $25,000.  Since the Board has exclusive jurisdiction over the subject-matter of the case, the Occupiers’ Liability Act does not apply.  Finally, a party cannot attorn to the jurisdiction of a court if that court does not have jurisdiction in the first place.

This decision is currently under appeal.  In the meantime, personal injury counsel would be wise to review their case load and ensure their tickler systems reflect the one year limitation period with respect to their tenant-landlord disputes.

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