Paralegals Canada  


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Landlord Tenant Disputes


The Landlord and Tenant Board (the "LTB") hears most issues in dispute involving the relationship between residential landlords and their tenants as governed by the Residential Tenancies Act, 2006S.O. 2006, Chapter 17.  

Matters involving commercial tenancy fall outside the jurisdiction of the LTB and must be brought in the Superior Court of Ontario (if the matter involves less than $25,000 a licensed paralegal can provide representation in the Small Claims Court).  

Confusingly, where a dispute exists between residential landlords and former tenants, certain matters must still proceed within the LTB while certain other matters must proceed in the Small Claims Court.  Frequently, where multiple issues arise, some issues must proceed at the LTB and other issues in the Small Claims Court.  Failure to bring issues to the proper forum can result in a dismissal of proceedings.
 

Unpaid Utilities (conundrum of jurisdiction)  

A significant concern to many landlords often involves the right to pursue tenants for failure to pay utilities in accordance to a lease agreement.  While it would seem that where rent is defined within a lease agreement as a specified dollar amount plus utilities, the issue of unpaid utilities should come under review by the LTB.  However, it seems that administrative staff for the LTB routinely turn away landlord applications seeking payment of the portion of rent involving unpaid utilities.  In the recent case of Luu v. O'Sullivan , 2012 CanLII 98396 at paras 55 to 58, it was stated by Winny D.J. that legislative instruction or appellate clarification of the LTB jurisdiction seems necessary on this issue.  Here is what was said:

Closing Remarks 

55. The question of the Board’s jurisdiction over the utilities component of rent payable in residential tenancies cries out for appellate resolution. One avenue for such resolution would be on appeal from this judgment. 

56. The other avenue would be for the Board to make a decision on this issue which could then be appealed as a question of law under s. 210 of the RTA. However if the practice of the Board’s staff is to turn away applications based on the contents of Interpretation Guideline 11, this creates an unfortunate obstacle to clarification of the law for residential landlords and tenants in Ontario. My view is that Interpretation Guideline 11 is seriously flawed and internally inconsistent, but it is clearly not a legally-binding instrument. The Board’s ability to adjudicate this issue should not be compromised by its own staff; nor should the ability of the Divisional Court to clarify this issue be so compromised. 

57. It also appears plain that there is no aspect to this problem which could not be addressed by amendment to the RTA or its regulations. 

58. The Small Claims Court, like any other court or tribunal, must apply the current law. My determination is that this matter falls within the exclusive jurisdiction of the Landlord and Tenant Board. Accordingly, both parties’ claims are dismissed for want of jurisdiction. 


Guarantors

It is common that residential tenancy agreements will contain a 'guarantee' clause stating that certain persons, known as guarantors, will pay for the liabilities of the tenant if the tenant fails to make proper payment.  These clauses often result in legal challenges over the validity of such agreements.
 

Exclusivity of Jurisdiction  

Where matters are confered upon the LTB, the LTB is with exclusive jursidiction and the initial case must be brought at LTB; Residential Tenancies Act, 2006S.O. 2006, Chapter 17, section 168(2)Fraser v. Beach2005 CanLII 14309 (ON CA).  The determination of exclusive jurisdiction extends beyond matters explicitly confered to the LTB and includes those matters where the legislation is silent yet implicitly confers matters to the LTB; Finney v. Cepovski2015 CanLII 48918:

17.  More generally with respect to whether a matter in civil court falls within the exclusive jurisdiction of the Landlord and Tenant Board, in Efrach v. Cherishome Living, [2015] O.J. No. 293 (Div. Ct.), Horkins J. adopted the reasoning of Perell J. in Mackie v. Toronto (City), [2010] O.J. No. 2852 (S.C.J.).  The civil court must determine the essential character of the dispute, and if the subject-matter is expressly or inferentially governed by the statute, the claim falls within the exclusive jurisdiction of the board. 

Failure to commence a proceeding within the proper jurisdiction, such as bringing a matter to the Small Claims Court where such matter should proceed at the LTB, will result in dismissal of the proceeding for 'want of jurisdiction'; Luu v. O'Sullivan, supra, at 58.