Oct 24, 2016
Ont. Super. Ct. finds trip and fall claim by tenant against landlord both statute/limitation barred because Residential Tenancies Act applies, which has a one-year limitation period
Author Michael S. Teitelbaum
Letestu v. Ritlyn Investments
, a decision by Ontario Superior Court Justice Sloan, is a case to keep in mind when defending an occupiers' liability claim.
His Honour noted that the plaintiff, who passed away after his trip and fall accident, rented an apartment in a building owned and managed by the defendant. He allegedly tripped over some “worn, torn and unsecured carpet” in his living room and fell, sustaining physical injuries. The plaintiff alleged that he made prior complaints about the condition of the carpet to the defendant, which took no steps to repair the carpet.
His Honour held that the action was statute/limitation-barred because the Landlord and Tenant Board (Board) has exclusive jurisdiction to determine all matters where jurisdiction the Residential Tenancies Act, 2006
(Act) confers jurisdiction to it. Section 168(2) of the Act states that “[t]he Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act".
As it is the nature of the dispute, not the cause of action pleaded, which dictates whether the claim falls within the jurisdiction of the Board, and this dispute involves allegations arising from disrepair, it was within the exclusive jurisdiction of the Board, notwithstanding the negligence allegations made in the Claim.
Further, claims like this one must be brought within one year. 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 Claim in this action was issued more than one year after the alleged incident.
His Honour stated in part:
 Under s. 168(2) of the Residential Tenancies Act, “[t]he Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act”, and under s.174, “[t]he Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act”.
 The specific nature of the complaint in this action is for “want of repair”.
 Based on the reasoning in the Mackie decision, I find that the Board has exclusive jurisdiction over the subject matter of the claim.
[Earlier in his reasons, His Honour quoted the following passage from Mackie v. Toronto (City)
, 2010 ONSC 3801, paras. 43-44:
It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims. Further, it is my opinion that characterizing the claims as a negligence claim or as an Ontario Humans Rights Code or Charter claim does not infuse the Superior Court with jurisdiction. From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the plaintiff’s claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.
The Plaintiffs’ characterization of the repair problems as negligence or as discrimination in breach of the Code and the Charter does not assist them. If the essential character of the dispute, in its factual context, arises from the statutory scheme, it does not matter that the claim is asserted for a cause of action which is ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. The characterization of the dispute is resolved by whether the subject matter of the dispute expressly or inferentially is covered by the statute … In the case at bar, the dispute about repairs and complaints about compliance with housing standards is a repair claim for under $10,000 and comes within the Board’s exclusive jurisdiction. [emphasis added]].
 The Act does not address its interrelationship with other Acts because it does not need to. Sections 168 and 174 give the Board exclusive jurisdiction over matters set out in the Act.
 Section 2 of the Limitations Act makes it clear that the Limitations Act applies to “claims pursued in court proceedings”.
 Nowhere in the Limitations Act does it state that the Limitations Act applies to claims brought before administrative tribunals.
 Based on the rationale in the Efrach case, where the Board has exclusive jurisdiction over the subject matter, the action must be commenced within the one-year limitation period before this court can assume jurisdiction for claims exceeding $25,000.
 Since the Board has exclusive jurisdiction over the subject matter of this case, I find that the Occupiers’ Liability Act does not apply.
 The estate of the deceased is in no different position when it comes to pursuing this claim than the deceased would have been if he were alive.
 The issue of the defendants not having brought this motion promptly may be a consideration for the costs portion of this motion, but does not assist the plaintiff in a case where the court does not have jurisdiction and a Judge specifically ordered that the motion be brought prior to a trial.
 A party cannot attorn to the jurisdiction of a court if that court does not have jurisdiction in the first place.
 The plaintiff’s action is therefore dismissed with costs.