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Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Janus v. The Central Park Citizen Society, 2019 BCCA 173

AREAS OF LAW:  Landlord and tenant; Limitation periods; Res judicata; Personal injury; Negligence

~The test for postponement of the limitation period in a personal injury claim should not be interpreted to mean that a party is not in a position to start a claim until he is fully aware of the extent of his injuries and the potential magnitude of a damage award so that he can select the optimal forum.~

BACKGROUND

On April 16, 2012, a fire broke out in an apartment building owned by the Appellant Central Park Citizen Society and managed by the Appellant Crosby Property Management Ltd. The Respondent, Remigiusz Janus, was a tenant in the building and resided down the hall from the unit in which the fire started. He helped the elderly tenant of that unit escape the building, delaying his own evacuation. On December 11, 2015, the Respondent filed a claim in the BC Supreme Court seeking damages for personal injuries resulting from exposure to smoke and asbestos dust, as well as damages for loss of personal property. He said the Appellants’ negligence contributed to his injuries because ventilation in the building was inadequate and fire detection equipment had not been maintained. The Appellants applied to have the action dismissed on the basis of res judicata or, in the alternative, on the basis that the claim was barred by the expiry of the limitation period. The notice of civil claim was the third attempt the Respondent made to have his claims adjudicated. He filed a claim initially in Provincial Court on April 15, 2014, one day before the second anniversary of the fire. A judge dismissed that claim on March 16, 2015 on the basis that it involved a dispute between a landlord and tenant and was therefore under the exclusive jurisdiction of the Residential Tenancy Branch (“RTB”). Two days later the Respondent commenced a proceeding in the RTB naming the Appellants as respondent. On August 15, 2015, that proceeding was dismissed without leave to reapply on the basis that the limitation period had expired. The Respondent did not appeal the Supreme Court decision, nor did he apply for a review of the RTB decision. In September 2015 he was diagnosed with cancer, which he attributed to the smoke and asbestos inhalation, and two months later he commenced this claim. The Appellants applied to have the claim dismissed on the basis that it was precluded by issue estoppel and cause of action estoppel and amounted to a collateral attack. The judge held that res judicata did not apply because the cause of action before the Supreme Court was not the same as the cause of action brought before the Provincial Court and the RTB. She noted that the Respondent had not yet been diagnosed with cancer when he brought those proceedings, and that with the cancer diagnosis the claim would, if successful, exceed the award limit of both the Provincial Court and the RTB.

APPELLATE DECISION

The appeal was allowed. The suffering of different or more serious damage at a later time does not create a different cause of action. This principle flows from the nature of a cause of action, which consists of all the material facts and elements that must be proved to ground a claim. The material facts and elements needed to prove the Appellants’ liability for the Respondent’s earlier-identified injuries and his subsequently-diagnosed cancer were the same. Furthermore, the judge erred in assuming that once the Respondent was diagnosed with cancer, his claim no longer fell within the jurisdiction of the Provincial Court and the RTB. This was the result of a failure to distinguish between subject matter jurisdiction and monetary jurisdiction. The judge erred in finding that res judicata did not apply, but she did go on to say that in the event the doctrine did apply she found this was an appropriate case in which to exercise her discretion to hear the claim. The Court found no error in this decision. The Court of Appeal agreed with the judge that the limitation period before the RTB did not apply, although for different reasons. The Court found that the RTB does not have subject matter jurisdiction over the claims as framed by the Respondent. This is a personal injury claim in negligence, and the claim did not arise solely by virtue of rights and obligations under the Residential Tenancy Act. The judge erred in concluding that the limitation period under the Former Litigation Act had been postponed. The test for postponement of the limitation period should not be interpreted to mean that a party is not in a position to start a claim until he is fully aware of the extent of his injuries and the potential magnitude of a damage award so that he can select the optimal forum. The Court acknowledged that this outcome would appear to be unfair to the Respondent, who started his claim within time only to be told by the Provincial Court that he was in the wrong forum. The appropriate course of action would have been to appeal the Provincial Court decision. The harsh effect of the limitation period could not be avoided on the facts in this case.

COUNSEL COMMENTS

Counsel Comments provided by Kim Wigmore and Bo Carter, counsel for the Appellants

The aspect of the BC Court of Appeal’s decision in Janus v. The Central Park Citizen Society that will likely have the farthest reaching effect going forward is how the panel dealt with the issue of what forum has jurisdiction to hear disputes between landlords and tenants in British Columbia.

The Court of Appeal effectively limited the circumstances under which the Residential Tenancy Branch has exclusive jurisdiction under the Residential Tenancy Act (the “RTA”) to hear a dispute between landlords and tenants, and increased the jurisdiction of the courts, including the Small Claims Court, to hear such disputes. As the Residential Tenancy Branch and the Small Claims Court have the same monetary limit, this decision will likely have the most significant effect on how the Residential Tenancy Branch and the Small Claims Court deal with landlord tenant disputes going forward.

In this case, the tenant’s allegations against the landlords were essentially that the landlord was negligent in its failure to maintain the fire safety of the building, which resulted in personal injuries and loss of property. The Plaintiff’s claim was based on the Occupier’s Liability Act, and alternatively based on negligence. While the Court of Appeal acknowledged that residential tenancy disputes involve rights and obligations under the RTA, which include a landlord’s obligation to maintain residential property in a state of repair that complies with safety standards required by law (s.32), the Court of Appeal held that this matter was not a “RTA Dispute”, over which the Residential Tenancy Branch had exclusive jurisdiction. The reason being that the Plaintiff’s claim did not arise solely by virtue of the rights and obligations under the RTA. As such, the Court of Appeal held that the courts, including the Small Claims Court, had jurisdiction to hear the matter.

Section 58 of the RTA states that a court does not have and must not exercise jurisdiction “in respect of a matter that must be submitted to the director for dispute resolution under this Act” except that the Supreme Court may, on application, hear a dispute where the claim is for an amount that is more that the Small Claims monetary jurisdiction or a dispute that is linked substantially to a matter that is before the Supreme Court. In this case, the Court of Appeal’s decision did not turn on either of these exceptions. As such, while not explicitly stated, the Court of Appeal’s decision is that claims that do not arise solely by virtue of the rights and obligations under the RTA are not disputes that “must be submitted to the director.” That is the case even where a dispute also involves rights and obligations under the RTA, such as the landlord’s obligation to maintain the residential property.

We anticipate that the outcome of this decision will be that the Small Claims Court will retain jurisdiction over more claims, whereas it previously treated its jurisdiction between landlords and tenants as quite limited. While Small Claims Court has the same monetary jurisdiction as the Residential Tenancy Branch, we anticipate that the adjudication of claims in Small Claims Court will result in more costly litigation and higher awards.

Counsel Comments provided by Heather Bains and Sukhmani Dhaliwal, Counsel for the Respondent

“This was a case taken on pro bono with the expectation of facing a challenging limitation issue. The Plaintiff had been self-represented, first filing a claim within two years with the Small Claims Court. However, that claim was dismissed on the basis that the Provincial Court lacked jurisdiction as the Residential Tenancy Branch (“RTB”) had exclusive jurisdiction. The Plaintiff, then still self-represented, filed a claim with the RTB which was dismissed on the basis that the claim was out of time. As counsel, we were retained after the RTB dismissal, we filed the claim in the Supreme Court.

The crux of the issue was whether the limitation period [within which the plaintiff filed the claim] was governed by the Residential Tenancy Act, S.B.C. 2002, c.78 [RTA]; the Limitation Act, R.S.B.C. 1996, c. 266 (the “Old Limitation Act”); or the Limitation Act, S.B.C. 2012, c.13. Ultimately, what started out as just a challenging limitation issue became a determination of how the law understands a limitation issue in the context of a jurisdictional dispute.

We were successful at the Supreme Court level, with the chambers judge using her discretion to correct what she saw was an injustice in the way the Plaintiff’s claim had proceeded. The Defendants appealed the chambers judge’s ruling following the release of the Court of Appeal decision, Gates v. Sahota, 2018 BCCA 375 [Gates], a decision that was released just after the chambers judge released her reasons. It was the Respondent’s primary position on Appeal that any dispute involving a landlord and tenant, regardless of how it is pleaded or in which forum it is adjudicated, must be decided within the bounds of the RTB’s jurisdiction. A line of reasoning that appeared to be supported by the Gates decision, but was clearly an untenable position that warranted proceeding with a Court of Appeal hearing.

We were ultimately successful in having the Gates decision read down. In her ruling for the Court, the Honourable Madam Justice Fenlon wrote that while it is not open to a tenant to alter the jurisdictional basis of a claim, it does not follow “that the RTA [Residential Tenancy Act] governs all disputes between a landlord and tenant”[1] In particular, she found that in this case, which was primarily a personal injury dispute, the court was not restricted to the bounds of the RTB’s jurisdiction. Fenlon J. went on to note that “the corollary of exclusive RTB jurisdiction over all disputes involving landlords and tenants would be the ousting of jurisdiction over those claims in the Supreme Court. If the Legislature intends to oust the jurisdiction of a superior court to hear claims, it must do so with “clear and explicit statutory wording to this effect”: Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 46; TeleZone at paras. 5, 42. There is no such clear and explicit language in the RTA: see e.g., Roumeli Investments Ltd. v. Gish, 2018 NSCA 27.”[2]

Ultimately however, even though we were successful on the Gates issue, the Court of Appeal found an error in how the chambers judge applied the Old Limitation Act and found that the Plaintiff’s claim was filed out of time and was that the Plaintiff was left without a remedy because he failed to appeal the Provincial Court decision where he had been told that they did not have jurisdiction to hear his claim.

The result of the Court of Appeal’s decision will no doubt be unfair to the Plaintiff, who was only to be told now of the correct forum for appealing his claim. Moreover, this unfairness is left uncorrected, despite the fact that the chambers judge had found a way to level the playing field between a self-represented tenant and a counsel-represented landlord in applying her discretion through the Old Limitation Act.”

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