This recent case expands on my earlier decision in Dick v. Robinson, 2021 CanLII 48732 and my recent post entitled “Landlord Permitted to Pursue Tenant Damage Claim in Small Claims Court.”
This latest appellate case illustrates the continuing controversy over the jurisdiction of the Small Claims Court to render judgment in residential landlord and tenant matters. It also confirms my ruling, and the ruling in Valiant Rental Properties Ltd. v Paulauskas, 2022 CanLII 1996, to the effect that the Small Claims Court has jurisdiction to hear landlord’s claims for utility arrears and premises damage if the tenant was no longer in the premises, provided the claim was commenced before September 1, 2021.
in this recent case, the Court of Appeal had to intervene and overrule both a lower court and Divisional court appeal decision that effectively held that there was no such jurisdiction.
Regrettably, however, the Court of Appeal did not squarely address whether the outcome would be different if the landlord’s Small Claims Court recovery claim was brought after the legislative changes that came into force on September 1, 2021. My decision in Dick v. Robinson concluded that if a Landlord commenced their claim on or after September 1, 2021, the Small Claims Court would no longer have jurisdiction, and such claims would have to be brought before the Landlord and Tenant Board. It would have been ideal if the Court of Appeal squarely addressed this issue, but they did not. The appellate court did, however, offer this obiter dicta (ie: side comment) found in footnote 3, which read as follows:
“We need not decide whether the LTB would have had jurisdiction over an identical claim had it originated after September 1, 2021. We would be remiss, however, in failing to caution that the amendments and transitional provisions in the Protecting Tenants and Strengthening Community Housing Act, 2020 may have supported a different outcome in such circumstances.”
As such, it seems that the Ontario Court of Appeal is leaning to the same conclusion I arrived at in Dick v. Robinson: namely, if such claims are started on or after September 1, 2021, they will be ousted from the Small Claims Court for lack of jurisdiction because they should be brought before the Landlord and Tenant Board who retains exclusive jurisdiction over such matters.
Kiselman v. Klerer, 2022 ONCA 489
https://www.canlii.org/en/on/onca/doc/2022/2022onca486/2022onca486.html