A recent Ontario decision has affirmed the principle that all claims for damage caused by a tenant during a tenancy must proceed before the Landlord and Tenant Board (the “Board”) and not in the Superior or Small Claims courts.
After about a six year tenancy, the tenant fell behind on rent. The landlord brought an application to evict the tenant. The tenant vacated the unit shortly after being served with the application materials and did not attend the eviction hearing.
As part of the eviction hearing the landlord sought arrears of rent, including hydro arrears. The Board terminated the tenancy and awarded payment for arrears of rent but did not award payment of the hydro arrears. No reason was given by the Board as to why they did not award the hydro arrears.
The landlord brought a subsequent proceeding in Small Claims Court for the hydro arrears and for the cost of repairing damage that was done to the unit during the tenancy.
The Small Claims Court judge canvassed the legal authorities and noted that if the subject-matter is expressly or inferentially governed by the Residential Tenancies Act, 2006 (the “Act”) then the claim falls within the exclusive jurisdiction of the Board.
The Deputy Judge held that the hydro arrears constituted “rent” under the Act and therefore the claim in that respect must be dismissed for lack of jurisdiction.
The Deputy Judge also held that the damage to the unit ought to have been discovered by the landlord during the term of the tenancy if he had used reasonable diligence. Given that the damage occurred during, and not after, the tenancy the judge ruled that a claim for compensation for these damages was also under the exclusive jurisdiction of the Board.
The court noted
“While it may be an inconvenience to landlords if the law effectively requires an end-of-tenancy inspection simply to protect against the potential jurisdictional conundrum seen in this case, in my opinion that inconvenience is justified compared to the alternative of routinely causing simply residential tenancy matters to be divided into two separate proceedings before two different tribunals.”