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RTA - Damages. Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. [mitigation through insurance]
In Equity Builders Ltd. et al. v. Landlord and Tenant Board et al. (Ont Divisional Ct, 2025) the Divisional Court (mostly) dismissed a multiple-proceeding combination of both LL-initiated JRs and RTA s.210 appeals, here respecting multiple units in a Sarnia apartment building. After a fire "the Chief Building Official for the City of Sarnia issued an order to the Landlord directing that the premises be vacated", followed by a second order several days later restricting access to a lesser number of units. The LL subsequently refused re-entry to tenants not covered by the later less restrictive order, eventually resulting in RTA orders of illegal lock-out for numerous units - and that "the Landlords had substantially interfered with the reasonable enjoyment by the Tenants of their units; and found that the Landlords obstructed, coerced, threatened or interfered with the Tenants".
Here the court considered whether the possibility of tenant insurance could act as mitigation, reducing the LL's liability for RTA 'damage' awards:Did the Board err in law by failing to consider the Tenants’ duty to mitigate their damages through tenant insurance policies?
[101] The Landlords take the position that the Board failed to address the effect of the Tenants’ failure to mitigate their damages, specifically their out-of-pocket expenses, by having tenants’ insurance in place that was required by virtue of the tenancy agreements. The Landlords submit that if the Tenants had been insured, they would have been able to make claims for damages to their insurer, thereby reducing the amounts sought against the Landlords.
[102] The Tenants dispute that insurance coverage was a contractual requirement of the tenancy agreements. The Tenants also argue the Board appropriately addressed the issue of insurance and the allegation that the Tenants failed to mitigate their damages.
[103] The tenancies in question are subject to different forms of tenancy agreements. Some tenancy agreements contained a requirement on the tenant to maintain insurance. Other agreements were silent with respect to insurance. Some tenants no written tenancy agreement at all. Given the Board’s finding on the issue of mitigation, it is not necessary to examine the individual tenancy agreements to determine whether insurance coverage was an enforceable contractual term.
[104] To successfully raise the issue of mitigation before the Board, the obligation was on the Landlords to establish that that Tenants failed to take reasonable steps to mitigate their damages and that mitigation was possible in the first place: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, [2012] 2 S.C.R. 675, at para. 24.
[105] The Board considered and rejected the Landlords’ submission on mitigation noting that many of the amounts claimed for out-of-pocket expenses were nominal and would likely have fallen below an insurance policy deductible even if insurance had been in place.
[106] It is important to keep in mind that the damages awarded by the Board are to compensate the Tenants for the Landlords’ breaches of the RTA. The Landlords did not put forward any evidence about what types of policies were available to the Tenants and whether the policies would respond to damages caused by the Landlords’ actions. Even if a policy were to provide coverage for these types of damages, policies often include subrogation rights which would permit the insurer to pursue the Landlords for the amounts paid out under the policy. The Landlords failed to establish that mitigation was possible in the first place.
[107] The Board considered the issue of mitigation and reasonably rejected the Landlord’s submission. There is no legal error. . 12001721 Canada Inc. v Switzer
In 12001721 Canada Inc. v Switzer (Div Court, 2023) the Divisional Court considered the damage jurisdiction of an RTA claim (between the courts and the LTB) as effected by the Protecting Tenants and Strengthening Community Housing Act, 2020:[2] In brief, the numbered company rented a townhouse to the defendant Respondents. The defendants allegedly damaged the property. The Respondents were asked to vacate the property and they did on July 31, 2021. On October 3, 2021, the Appellant filed a claim in the Milton Small Claims Court seeking compensation for the damage.
[3] The matter came on for a settlement conference on January 22, 2022. The Deputy Judge dismissed the action for want of jurisdiction, relying on Kiselman v. Klerer, 2019 ONSC 6668 (Div. Ct.). That case purports to hold that the sole remedy for the Appellant in these circumstances is with the Landlord and Tenant Board. Costs of $500 against the Appellant were ordered.
[4] It is alleged that the Deputy Judge raised this jurisdictional question of her own motion and, contrary to natural justice, did not adjourn the matter and invite submissions from the paralegal acting for the Appellant. I am unable to adjudicate this argument as there is no factual basis laid out in the record to support it.
[5] However, on the substantive issue, I agree that the Deputy Judge erred in law. The Small Claims court does have jurisdiction. The subsequent case of Wu v. Adler, 2022 ONSC 188 (Div. Ct.) at paras. 35-47 is convincing authority establishing that Kiselman should not be followed. I would note that Wu was decided two weeks before the Deputy Judge’s decision dismissing this claim.
[6] Even more definitive, as commented on in Wu at paragraph 47, a reading of the pertinent legislation clarifies that the Small Claims Court has exclusive jurisdiction. The Protecting Tenants and Strengthening Community Housing Act, 2020 came into force on September 1, 2021. It amended the Residential Tenancies Act, 2006, S.O. 2006, c. 17 to clarify the jurisdictional issue which arises in this case. Section 87 and 89 together with Schedule 4 provide that if the tenant moved out before September 21, 2021 — which is the situation here — the landlord cannot apply for a remedy to the Board. Therefore, the Board not having jurisdiction, the claim could only be filed and be determined by the Small Claims Court. . Abara v. Hall and Lee
In Abara v. Hall and Lee (Div Court, 2022) the Divisional Court usefully walks-through changes to the RTA regarding LL compensation, effective 01 September 2021:Legislative Scheme and Changes
[17] An L3 is used when a landlord wishes to terminate the lease either by agreement to end the tenancy or where a tenant gave notice to terminate. The form does not indicate a space for the determination of compensation. Section 77(4) of the Residential Tenancy Act, 20060F[1](RTA) states that the Board may make an Order on receipt of an L3 to terminate the tenancy and evict the tenant. The section does not provide the Board with authority to order compensation.
[18] Section 86 of the RTA indicates that: “A landlord is entitled to compensation for the use and occupation of a rental unit by a tenant who does not vacate after his or her tenancy is terminated by order, notice or agreement.”
[19] In the situation where the landlord is not seeking eviction for non-payment of rent, the landlord may apply under section 87 for payment of rent arrears or section 86 compensation. If the tenant is still in possession of the unit, this is done by filing an L9 for arrears in rent and an L2 application for section 86 compensation.
[20] However, given a change to the legislation, if the tenant is no longer in possession of the rental unit on or after September 1, 2021, then the landlord may file an L10 application to collect arrears or compensation under section 86. An L10 application must be brought within one year of the date the tenant vacated the unit. The legislation is silent on the procedure after the first year has expired.
[21] At the time the application was commenced in this matter, section 87(3) entitled the landlord to apply to the LTB for an order for the payment of compensation “for the use and occupation of a rental unit after a notice of termination or an agreement to terminate the tenancy has taken effect.” After September 1, 2021, the wording in section 87(3) changed and section 87 (3.1) was added. Section 87(7) was enacted being the transition section for proceedings not affected by the changes in the legislation. Section 87(7) states that the amendments do “not affect any court proceeding for an order for the payment of arrears of rent or compensation for the use and occupation of the rental unit, or for the payment of both, that is commenced before the day that subsection comes into force and has not been finally determined before that day.”
[22] Prior to September 1, 2021, the means for a landlord to obtain compensation or arrears in rent after the tenant was no longer in possession of the unit was the Superior Court of Justice. After September 1, 2021, an L10 is the pertinent application for request for compensation in this case. At paras 25-27 the court applies this law to the facts of the case.
. Beseiso v. Presendieu
In Beseiso v. Presendieu (Div Court, 2022) the Divisional Court considered general damage awards ordered by the LTB when a LL illegally evicted the tenant. The case (and cases cited) are noteable for the low quantum awarded, amounts that some landlords may view as an acceptable 'cost of business':[6] The Tenant has provided comparable decisions where the LTB has ordered general damages in cases of harassment and illegal lock outs. In the first case cited, HOT-02167-17 (Re), 2019 CanLII 86881 (ON LTB), the LTB reasoned that:…it seems to me that the quantum of general damages normally awarded to compensate a tenant for an illegal lockout is $2,500.00. That sum takes into account the inherent indignity of having one’s home taken away; the time, effort, frustration, and stress of having to arrange food and accommodations while also seeking legal assistance; and the inconvenience and displacement of being without a home.
To be clear, I do not find an award of $2,500.00 to be automatic. It is open to a landlord to show that a lockout had an unusually low impact on a tenant. Likewise, it is open to a tenant to show that a lockout had an unusually high impact. Absent unusual circumstances, however, I find $2,500.00 to be the normal award.
(at paras. 35 and 36) [7] In ST-r26870-12 (Re), 2012 CanLII 46802 (ON LTB), the LTB found that the Landlord and the Landlord’s agents “harassed, obstructed, coerced, threatened and interfered with the Tenant, altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of his household.” It found this to be on the extreme end of harassment and being satisfied that the Tenant experienced extreme psychological distress, that an award of damages of $5,000 was justified upon the available evidence.
[8] Here, we conclude the LTB erred in law in failing to address in its reasons the claim for general damages, the evidence in support of that claim and the legal framework applicable. The lack of any such discussion in the reasons, in light of the findings of the Landlord’s actions, and the impact of those actions on the Tenant mean that the reasons are incapable of any meaningful appellate review. The reasons for the LTB decision on this issue do not appear from the record as a whole. Accordingly, we allow the cross-appeal on this basis.
[9] Section 210(4) of the RTA provides this court with the authority to affirm, rescind, amend or replace the decision or order, or remit the matter to the Board with the opinion of the Divisional Court.
[10] We are satisfied that on the record before us that the Tenant has shown the LTB ought to have considered and made an award of general damages based on the evidence and prior jurisprudence of the Board in similar cases. This litigation has been lengthy: the events involved began in 2019. We have the benefit of a psychological report, and the Landlord received notice of the arguments to be made and chose not to participate in the appeal further.
CONCLUSION
[11] In all of the circumstances, we amend the order of the LTB and require the Landlord to pay the Tenant $5,000 in general damages for pain and suffering relative to the findings that the Landlord breached ss. 23 and 24 of the RTA.
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