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Residential Landlord and Tenant Law (Ontario)
(15 August 2015)

Chapter 16 - Civil Remedies

  1. Overview
    (a) The Issue
    (b) Background: Divided Jurisdictions
    (c) Mutually Exclusive Jurisdictions
    . Overview
    . Exclusivity
    . Who Rules?
    (d) Complementary Jurisdictions
    (e) Concurrent Jurisdictions
    (f) Summary
  2. Jurisdictional Aspects Within the Board's Competence
  3. Time Jurisdiction
    (a) Overview
    (b) Tenant Applications
    (c) Landlord Applications
  4. Remedial Jurisdiction
    (a) Overview
    (b) Declarations and Injunctions
    (c) Monetary Compensation by Quantum
    (d) Monetary Compensation in Contract
    . Overview
    . Monetary Damages for "Breaking a (Term) Lease"
    . Monetary Damages for Improper/Short/No Tenant Notice of Termination
    . Monetary Damages for Damage to Rental Unit
    . Monetary Claims Against Guarantors
    . Duty to Mitigate Loss
    (e) Monetary Damages in Tort
    (f) Monetary Compensation in Restitution
    . Overview
    . Board Applications to Recover Illegal Rent and Charges
    . Retroactive Legalization of Illegal Rent After One Year
    . Illegal Charges
    . Restitution for Income Misrepresentation in Social Housing
    . Summary
  5. L&T Board and Staff Civil Immunity
________________________________________


1. Overview

(a) The Issue

The subject of this chapter is the availability of regular civil court procedures to deal with matters arising within a residential landlord and tenant context. In other words: when can a residential landlord or tenant sue the other - as opposed to being restricted to the procedures of the Landlord and Tenant Board?

(b) Background: Divided Jurisdictions

Ontario's main trial court, the Superior Court of Ontario (it has had numerous previous names) is what is called a court of "plenary jurisdiction". This means that - unless jurisdiction over particular legal topics, parties or remedies is exclusively assigned or delegated to another legal body - that court has jurisdiction over it.

Of course, in Ontario for the last 15 or so years jurisdiction over residential landlord and tenant matters has resided with "administrative tribunals" - recently the Rental Housing Tribunal under the Tenant Protection Act - and now the "Landlord and Tenant Board" under the Residential Tenancies Act (RTA). The allocation of separate jurisdiction to such tribunals necessarily gives rise to sometimes complex "line-drawing" issues over which tribunal or court properly has jurisdiction over any given fact situation.

The complexity arises because "jurisdiction" itself is a multi-faceted (and under-analyzed) concept. In my analysis [as discussed in Ch.13, s.3: "General Board Procedures: Board Jurisdiction"], it's aspects include jurisdiction over parties, subject-matter, law, geography, time and remedies.

While clear-cut legal answers are not always available, I explore [in (c-e) below] the range of approaches to the jurisdiction issue that a party may face. These should provide a basis for grappling with the issues.

(c) Mutually Exclusive Jurisdictions

. Overview

One tendency of the courts is towards the drawing of mutually exclusive ("clear and bright") lines between the competing jurisdictions, and tolerating little if any overlap (or "concurrent jurisdiction") between them.

. Exclusivity

The most prominent example of this tendency is the labour relations case of Weber v Ontario Hydro [1995] 9 S.C.R. 929, where the Supreme Court of Canada chose to assert a "complete code" doctrine over labour relations. In Weber an employee under a collective agreement sought to sue their employer for a variety of employment-related tort causes of action in civil court. The Supreme Court rejected their right to do so, finding that the Labour Relations Board grievance and arbitration processes exclusively governed practically all matters (other than criminal) stemming from the employment relationship - even if those labour relations procedures did not provide the full remedial range that the courts did.

The Weber doctrine - which will hopefully be restricted to the labour context - degrades parties' remedial rights by restricting them to the (invariably limited) remedies available under the 'new' administative regimes. So where before an employee may have been able to sue an employer for unlimited damages, under a longer civil claims limitation period, and for any legally available causes of action - now all they have are far inferior and limited (both procedurally and substantively) labour relations grievance procedures.

Application of the Weber doctrine to the residential landlord and tenant situation constitutes a drastic limitation on the availability of the civil courts. It essentially dictates that whenever the RTA regime fails to address a fact situation (eg. through a missed limitation period, lack of party standing, etc) - then there is no remedy at law.

. Who Rules?

The Supreme Court of Canada has further devised a test where the issue of directly competing jurisdictions between statutorily-created tribunals and courts (or at least the Superior Courts created under s.96 of the Canadian Constitution) arises. It is set out in the case of Reference re Amendments to the Residential Tenancies Act (NS) (SCC, 1996). That case broadly considered whether a statute which purported to exclude the jurisdiction of the superior courts to terminate tenancies and evict tenants, and to delegate it exclusively to a tribunal system, was sound on the basis of s.96 of the Canadian Constitution. That test was recently applied in Abou-Elmaati v Canada (Attorney General) (Ont CA, 2011), where it was cited by Sharpe JA as follows:
[14] In Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (S.C.C.), [1996] 1 S.C.R. 186 at para. 74, McLachlin J. re-stated as follows the three-part test for determining whether the conferral of jurisdiction on an inferior court or administrative tribunal deprives a s. 96 court of its constitutionally protected jurisdiction, initially laid down by Dickson J. in Re Residential Tenancies Act, 1979, 1981 CanLII 24 (S.C.C.), [1981] 1 S.C.R. 714 at pp. 734-735:

(1) does the power conferred "broadly conform" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation?

(2) if so, is it a judicial power?

(3) if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function?
These are factors which should be considered by a court when resolved such a conflict. A 'yes' answer to the first two questions supports the conclusion that the power is exclusive to the courts, while a 'yes' answer to the third supports sustaining the grant of authority to the statutory tribunal. In the Reference re Amendments to the Residential Tenancies Act (NS), it was held that the first leg of the test was not met, in that the power to terminate and evict was not one that was exclusive to the courts at the time of Confederation. As such, it was not necessary to proceed to the other questions and the court upheld the tribunal system proposed in the legislation.

That test could be applied in situations where the RTA purports to oust the jurisdiction of the Superior Court over such traditional remedies as damage and restitutionary claims. While most landlord and tenant matters that might be brought as civil actions would involve amounts under the current Small Claims monetary limit of $25,000, that court is itself a branch of the Superior Court of Justice, and the test could conceivably apply in such situations to preserve it's jurisdiction to rule on such matters.

(d) Complementary Jurisdictions

The next approach which a litigant may face is one that tolerates dual, but distinct, jurisdiction over a legal area.

While this approach respects the primacy of the administrative legal regime established by the RTA and applied by the Landlord and Tenant Board, it tolerates continued court jurisdiction whenever the Board's jurisdiction 'ends'. Of course, 'ending' can be defined within any of the jurisdictional aspects mentioned above: parties, subject-matter, law, geography, time and remedies.

Thus, if (as is generally the case) the Board's jurisdiction to accept an application claiming arrears of rent is restricted to those situations where the tenant is still in possession of the premises - the 'complementary jurisdiction' approach would tolerate the landlord suing for arrears in civil court, but only if no Board application was commenced before the tenant vacated the premises.

Similarly, if a landlord's claim for damages to the rental unit is restricted to claims against the tenant only [which it is: Act s.89(1)] - the doctrine of complementary jurisdiction would require the landlord to sue the tenant's "guests" in civil court.

The "complementary jurisdiction" model is more generous to litigants in terms of access to justice than the "mutually exclusive" model, but can be highly complex (and thus uncertain) to apply - as it requires the most "line-drawing" of any of the approaches. Thus parties may find themselves compelled to examine the more limited remedial or other jurisdiction of the Board in minute detail to find a satisfactory solution to their problem - and to avoid having a more general court action dismissed on jurisdictional grounds alone.

Perhaps the most awkward and irrational aspect of the "complementary jurisdiction" approach is that single fact situations may find themselves spread over both tribunal and court proceedings - a waste of both public and private resources and effort. An example of this is where a landlord alleges that damage was caused by both tenants (under Board jurisdiction) and by their guests (under court jurisdiction).

(e) Concurrent Jurisdictions

The doctrine of "concurrent jurisdictions" tolerates jurisdiction for the same fact situation in either (but not both at the same time) the Board or the court.

While the "concurrent jurisdiction" model is the most liberal and generous in terms of access to law, it is little favoured by dominant legal culture. Attempts to pursue a cause of action in the most party-convenient forum will likely be met with motions to 'stay' some or all aspects of the claim as being a jurisdictional "abuse of process".

(f) Summary

Legal life would be simpler if the law adopted one coherent and consistent model on these issues of competing jurisdiction, but it doesn't. The net result for parties and practitioners is that - when faced with such situations - they must be prepared to make informed jurisdictional choices, and to defend them in whatever forum they choose. This expends scarce party and court/tribunal resources on doing the 'line drawing', even before the merits of the case can be considered.

That said, the doctrine which has found most application in residential landlord and tenant law to date is that of "complementary jurisdictions". Most of the analysis below focusses on the "complementary jurisdiction" doctrine, as it is both the most likely - and (just to keep you on your toes) the most complex - to apply.
Case Note: Kaiman v Graham (Ont CA, 2009)

In a messy extended family dispute over a long-term cottage property lease, the tenant's commenced an action in Superior Court (rather than before the Board) seeking a range of civil remedies, including restitution, rectification of a lease, a declaration that a lease existed, and quantum meruit damages of $250,000.

Having lost at trial the tenants appealed, now arguing for the first time that the Superior Court had no jurisdiction in the matter, which they allege should have been before the L&T Board as it involved termination of a tenancy. While the court disagreed that the matter at trial involved termination of a tenancy, it held that even if it had that it would have been properly before the court and not the Board since fact of that damages claim exceeded the Board's jurisdiction gave the court the same remedial jurisdiction as the Board under RTA s.207(2) with respect to any other matters claimed:
[14] In any event, even if the Board had jurisdiction to determine whether the tenancy was validly terminated, having regard to the appellants? claim for damages in the amount of $250,000, the appellants were entitled to commence their proceeding in the Superior Court. Having done so, that court had all the jurisdiction that the Board would have had.

[15] Section 207(1) of the RTA states that the Board, where it otherwise has jurisdiction, may order the payment of the greater of $10,000 and the jurisdiction of Small Claims Court. Section 207(2) states:
A person entitled to apply under this Act but whose claim exceeds the Board?s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction. (emphasis added)
The impact of this obiter interpretation, if accurate, is that any residential tenancy-related lawsuit brought to regular Superior Court (ie. for more than the Small Claims Court limit, which at the date of writing was $25,000), allows the plaintiff (or any party for that matter) to also seek remedies which are otherwise within the jurisdiction of the Landlord and Tenant Board.

2. Jurisdictional Aspects Within the Board's Competence

As noted, the superior courts have "plenary jurisdiction", and thus - unless otherwise barred by law - have presumptive jurisdiction over a fact situation from any jurisdictional "aspect" that it is examined.

Let's consider some of the aspects of jurisdictional "line-drawing" that the law establishes. Recall from Ch.13, s.3: ["General Board Procedures: Board Jurisdiction"], that jurisdiction has several aspects, including jurisdiction over: the parties, subject-matter, law, geography, time, and remedies of the case.

Of these, the Board has plenary (full) jurisdiction (and thus cedes no ground to civil court jurisdiction) with respect to the following:
  • Parties:

    The Board can add and remove parties as necessary [Act s.187(2)], and "parties" include the "landlord and any tenants or other persons directly affected by the application" [Act s.187(1)].

    This is a very broad jurisdiction over "parties", and - but for rare situations of public interest standing where large social issues are involved - is equivalent to that normally applied in the civil courts.

  • Subject-matter and Law:

    The Board has "authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act". [Act s.174].

    This is a full authority to consider any issues which otherwise come legitimately before it.

  • Geography:

    By their nature landlord and tenant disputes are "grounded" to a piece of physical real estate located in the province of Ontario. This leaves no relevant geographical jurisdictional absence for the courts to pick up on.
In these above aspects at least the Board has equal jurisdictional 'range' to the courts, and thus - at least under the doctrine of "complementary jurisdiction" - leaves no residual jurisdiction to the courts.

The jurisdictional aspects of "timeframes" and "remedies", which are less clear, are discussed below in their own sections.


3. Time Jurisdiction

(a) Overview

Throughout the RTA are various "limitations" which create a time window in which a Board application may be commenced (and outside of which Board application is barred).

Some of these "limitation periods" come in the straightforward form of a fixed time limit after the events giving rise to them, such as the passing of the date of termination specified in the Notice of Termination, or ending when the tenant leaves possession of the rental unit. The argument for civil court jurisdiction in cases where such a time limit is missed is obviously persuasive.

Readers however are cautioned that even if an argument can be made out to ground a civil claim due to the passing of a Board "application" limitation period, the civil proceeding itself may be subject to a general limitation period established under the Limitations Act. It is beyond the scope of this program to review the law of "limitations", but readers may want to review the Limitations Act.

(b) Tenant Applications

Some tenant-specific time limitations on the bringing of a Board application are listed here for reference:
  • Tenant's Rights Application [Act s.29(2)] [see Ch.3, s.5]: "one year after the day the alleged conduct giving rise to the application occurred".

  • Former tenant's application where notice given in bad faith [Act s.57(2)] [see Ch.5, s.4]: "one year after the former tenant vacated the rental unit".

  • Tenant's Application re Withhold of Consent to Assign or Sublet [Act s.98(2)] [see Ch.1, s.5(e)]: "one year after the day the alleged conduct giving rise to the application occurred."

  • New Tenant's Application re Lawful Rent Where Serious Breach Order [Act s.115(2)] [Ch.12, s.6(c)]: "one year after the new tenancy agreement takes effect."

  • Tenant's Application re Rent Reduction on Reduction of Services [Act s.130(5)] [see Ch.12, s.3]: "one year after a reduction or discontinuance in a service or facility".

  • Tenant's Application re Illegal Charges [Act s.135(4)] [see Ch.12, s.7]: "one year after the person collected or retained money in contravention of this Act or the Tenant Protection Act, 1997."
(c) Landlord Applications

Some landlord-specific time limitations on the bringing of a Board application are listed here for reference:
  • Landlord's Application for Arrears of Rent [Act s.87(1)] [see Ch.4, s.4(g)]: "if ... the tenant is in possession of the rental unit."

    Note that the Board views this s.87 jurisdiction (even if application is commenced in time) as not extending to Board-Ordered arrears recovery against rent "guarantors" (ie. those required, as a condition of the tenancy being granted to the tenant, the guarantee the payment of the tenant's rent) [Interpretation Guideline 11: "Eviction for Failure to Pay Rent"]. Such claims must thus proceed through the courts [see s.4(d): "Remedial Jurisdiction: Monetary Compensation in Contract", below].

  • Landlord's Application for overhold compensation [Act s.87(3)] [see Ch.4, s.4(g)]: "(i)f a tenant is in possession of a rental unit after the tenancy has been terminated". (ie. it ends when possession is surrendered).

  • Landlord's Application for damage compensation [Act s.89(1)] [see Ch.6, s.4(e)]: "if ... the tenant is in possession of the rental unit."

  • Landlord's Application for Rent after Social Housing Misrepresentation [Act s.90] [see Ch.6, s.7]: "so long as the application is made while the tenant is in possession of the rental unit." [Note the discussion of this issue in s.4(f): "Remedial Jurisdiction: Monetary Compensation in Restitution", below].

  • Landlord's Application for occupation compensation from "unauthorized occupant" [Act s.100(2)(3)] [see Ch.8, s.1]: "no later than 60 days after the landlord discovers the unauthorized occupancy" and "if the unauthorized occupant is in possession of the rental unit at the time the application is made."

4. Remedial Jurisdiction

(a) Overview

In order to explore the case for residual civil court jurisdiction from a remedies perspective, it helps to contrast the remedial jurisdiction of the courts with that of the Board.

Setting aside for time being the specific remedial limitations of the Small Claims Court - where most L&T cases would logically be filed, the civil courts have evolved a number of traditional remedies, including:
  • declarations (simple statements of what is lawful or not);

  • mandatory injunctions (ordering a party to do a positive act or acts);

  • prohibitory injunctions (ordering a party not to do a particular act or acts);

  • monetary compensation (by far the most common remedy);

  • monetary penalties (ie. "punitive damages").
The Board on the other hand has numerous specific remedial powers, all of which are roughly analogous in form to the above court categories. "Monetary compensation" for loss is widespread in the power to award compensation for arrears of rent, overhold compensation, miscellaneous related expenses such as NSF fees, and physical damage to rental units. "Termination" is a form of legal declaration, and "eviction" is a form of legal mandatory injunction. "Administrative fines" are analogous to punitive damages.

The main distinction between the court's remedial powers and those of the Board is that the former powers are broad ("plenary") while latter are much more narrowly defined in scope by the specific circumstances in which they arise, and in which they are claimed [discussed in s.3 above].

The heavy limitations on the scope of Board remedies of course leaves open the argument - under the "complementary jurisdiction" doctrine - that whenever Board remedies are unavailable in the form desired, then the court may be available to provide a remedy.

In the following sub-sections I explore the case for civil court remedial jurisdiction in the residential landlord and tenant context.

(b) Declarations and Injunctions

As noted above, the Board's authority to order "termination" of a tenancy is the primary "declaration"-type remedy that either landlord or tenant would want, just as "eviction" is the primary injunctive-type remedy sought. As it is part of the RTA scheme to actively and purposefully limit the causes of action upon which a termination and eviction may be based, the Board's jurisdiction to order tenancies terminated and evictions will almost certainly be viewed by the courts as exclusive to the Board - leaving little or no residual jurisdiction to the courts.

The same can be said of any other circumstances where the RTA anticipates and establishes a remedial regime for any other particular circumstances - such as converting an "unauthorized occupancy" to an "assignment" tenancy [see Ch.1, s.5(f)], or the various "determinations" of tenant rights violations which set the ground for further remedial orders such as Orders "to desist" from illegal behaviours and even to put tenants back into possession where they have been illegally induced to leave [see Ch.3, s.5].

That said, the range of potential declarations and injunctions is as broad as human activity can be pernicious. While it is safe to say that the RTA has anticipated most situations that can arise in the residential landlord and tenant context, where others arise that are not anticipated a good argument exists that the courts retain declaratory and injunctive jurisdiction within the relationship.

It is worth noting at this point that the Small Claims Court in Ontario has no general declaratory or injunctive jurisdiction. The only residual authority of that nature it has is to order the recovery of personal property of a value not exceeding $25,000 (the court's monetary limit as of 01 January 2010). The jurisdiction of the Small Claims Court is explained in this linked chapter of the Isthatlegal.ca Small Claims Court (Ontario) Legal Guide:

Ch.3: Jurisdiction

(c) Monetary Compensation by Quantum

Regardless of the circumstances in which the monetary claim arises, the Board's monetary compensation jurisdiction is limited to the greater of $10,000 or the Small Claims Court monetary jurisdiction limit, which rose to $25,000 on 01 January 2010 [Act s.207(1)].

Where monetary compensation above that amount is sought, the RTA makes express provision for the party to proceed through the 'regular' courts (ie. the 'regular' Superior court which has an unlimited monetary jurisdiction) [Act s.207(2)][see "Civil Claims", below]. However the party cannot "split" a claim over both the Board and the court - so if a party seeks a Board monetary compensation order of over $25,000, it must 'waive' (give up) the claim to any amount above that - and further recourse to the court for additional amounts is barred for that same cause of action [Act s.207(3)].

As a practical matter it should be noted that while the Board's jurisdiction for under $25,000 claims created under the RTA is exclusive - and thus excludes the Small Claims Court's jurisdiction in those cases - the enforcement of Board monetary awards is still conducted through the Small Claims Court enforcement mechanisms [see Ch.14, s.7: "Hearings, Orders and Enforcement: Enforcement and Stays of Enforcement"].

Of course, where a landlord or tenant seeks monetary compensation for a cause of action that is not already anticipated in the RTA's remedial regime, then preserving the general jurisdiction of the courts to provide supplementary remedies is consistent with the "complementary jurisdiction" doctrine explained above - and with basic principles of access to justice.

When considering whether to bring a monetary claim before the Board or the court, parties should also be aware of the Court of Appeal case of Kaiman v Graham (Ont CA, 2009), which interpreted RTA s.207(2) to mean that when a residential tenancy-based claim above $25,000 was brought to the regular Superior Court, that court thereby also had full parallel jurisdiction with the Board respecting all other RTA-created remedies (see s.1 above).

(d) Monetary Compensation in Contract

. Overview

In the civil courts the three main grounds of monetary claims are contract, tort and restitution. Under "contract" I include the common damage situation of "lease-breaking", in the various forms in which it can occur. I explore all of these in turn below - along with related principles.

As noted earlier [Ch.1, s.1(c): "Fundamentals: Overview: Sources and Conflict of Laws"] there is a modern legal tendency to move the landlord and tenant relationship away from its feudal origins and to bring it into the larger family of contract law.

Indeed, the RTA expressly adopts a primary contractual principle which releases an aggrieved party from further performance if the other party has engaged in 'material breach' of their duties [Act s.17]:
RTA s.17
Except as otherwise provided in this Act, the common law rules respecting the effect of a serious, substantial or fundamental breach of a material covenant by one party to a contract on the obligation to perform of the other party apply with respect to tenancy agreements.
For present purposes the topic can be narrowed to that of remedies upon such "breach" of contract. The standard measure of damages for breach of contract is to give the aggrieved party what they would have gotten had the contract not been breached (or in other words, had the contract been fully 'performed'). This is sometimes called the "performance value". In the L&T situation this principle applies most frequently in practice in landlord's claims for the balance of rent "owing" when a tenant is alleged to have "broken a (term) lease".

Something like this contractual remedy is integrated into the RTA in the form of compensation for arrears and overhold compensation (compensation for occupancy after termination is declared). However the RTA limits such claims to the point that the tenancy is terminated, and provides no general landlord right to claim for lost "performance value" past that point.

. Monetary Damages for "Breaking a (Term) Lease"

The first distinction to be made here is that between "periodic" and "term" tenancies [see Ch.1, s.2(e)]. Briefly, a term tenancy (on it's face) obliges a tenant to continue to make rent payments for a fixed term (typically a year), while a periodic tenancy takes advantage of the "automatic renewal" provisions established by common law and the RTA [Act s.38(1)(2)] (damages for improper termination of a periodic tenancy are discussed below).

Clearly, the potential for loss of "performance value" is greater in the term lease situation, and it is those situations which give rise to the greater legal concern. The Supreme Court of Canada, in the case of Highway Properties Ltd v Kelly [1971] SCR 562 established that in some circumstances a landlord's claim for loss of "performance value" (ie. future rent) in a term lease was allowable. However whether this liability survives the formal "termination" brought about a tenant complying with a Notice of Termination [Act s.37(2)] or by Board declaration of "termination" is an open question. On this issue, Donald Lamont [Residential Tenancies, 5th ed. (Carswell, 1993) states at p.145-6:
It is arguable that the Highway Properties case may have developed the law so that a landlord can obtain an order terminating a lease for breach of covenant for any of the specific causes in [then] s.107 and as well claim for damages in a separate action. However in Sifton Properties Ltd v Sloan [(1981) 12 ACWS (2d)(Ont Small Claims Court)], the landlord lost the right to prospective common law damages when the tenant complied with notice of early termination and moved out.

...

However in 190 Lees Avenue Ltd v Dew [(1991) 2 OR (3d) 686 (Div Ct)], which was an ordinary action, the judgment allowed the claim for damages and pointed out that the remedies provided for in [then] s.113 were not an exhaustive list.
. Monetary Damages for Improper/Short/No Tenant Notice of Termination

In contrast to breach of a "term" lease, the lost dollar value in periodic lease situations where tenants either: allegedly abandon the premises, "cause" the termination or give inadequate or short notice - is typically small enough that the Board arrears and overhold compensation provisions cover it.

That said, the RTA has expressly set out how damages are to be determined in these circumstances [Act s.88]:
  • Improper Notice

    Where the tenant gives a form of Notice of Termination that does not meet the legal requirements for such a Notice [see Ch.4, s.2: "Termination Fundamentals: Notices of Termination"], the landlord's claim for arrears ends on the earliest date of termination that would have applied had the tenant's Notice of Termination been properly given at the same date that faulty Notice was.

  • No Tenant Notice

    Where the tenant fails to give any form of Notice of Termination, the landlord's claim for arrears ends on the earliest date of termination that would have applied had the tenant properly given Notice of Termination "on the date that the landlord knew or ought to have known that the tenant had abandoned or vacated the rental unit".

  • "Abandonment" after "Early Termination Option" Landlord Notice of Termination

    There are several landlord Notice of Termination procedures which give the tenant an 'early termination' option which, if exercised, allows them to "counter"-terminate the tenancy (by proper Notice of Termination) earlier. These are terminations for "personal possession" and "purchaser possession" [see Ch.5, s.2], and for "demolition/conversion/repair/renovation" [see Ch.5, s.3].

    The RTA views a tenant who simply leaves the premises after such a landlord notice - but while neglecting to give the proper "counter"-Notice for early termination (OR after giving a faulty form of such Notice) - to be abandoning the premises.

    In such cases arrears of rent shall be calculated to the earlier date of A and B below [Act s.88(2)]:

    A. in the case of a faulty tenant's Notice of Termination, ten days after it was given to the landlord; or

    in the case of no tenant Notice of Termination, ten days after "the landlord knew or ought to have known that the tenant had vacated the rental unit", and

    B. the "date of termination" in the 'initial' landlord Notice of Termination.
As these damage calculation provisions all tie themselves to dates of termination which could 'otherwise' have been given, they do not significantly impact on the term lease situation discussed above.

. Monetary Damages for Damage to Rental Unit

As noted above in s.2, a landlord may "if ... the tenant is in possession of the rental unit" [Act s.89(1)] apply to the Board for compensation for "reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property, if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage".

Such damage claims - made either in contract or tort - are at the heart of conventional civil court jurisdiction and it seems quite likely that court claims for such damage - made after the tenant has left the premises (and claims against guests and guarantors as well) will be countenanced by the courts.

. Monetary Claims Against Guarantors

While s.87(1) is generally available for landlords to claim arrears, note that the Board views this jurisdiction as not extending to Board-Ordered arrears recovery against rent "guarantors" (ie. those required, as a condition of the tenancy being granted to the tenant, the guarantee the payment of the tenant's rent) [Interpretation Guideline 11: "Eviction for Failure to Pay Rent"].

The Board's reasoning on this issue appears to apply to any other situation of guarantor liability. Given this Board position, which is defensible, claims against guarantors must then apparently proceed through the courts.

. Duty to Mitigate Loss

All "contractual" damages claims are subject to the general contractual responsibility of the landlord to deduct from their losses any amounts recovered by re-renting the rental unit, or that they could have recovered had they taken "reasonable steps to minimize losses" [Act s.16, 88(3)(4)].

It is likely that any court will impose this duty to mitigate in other non-contractual damage situations.

(e) Monetary Damages in Tort

The Board has some tort-like remedial jurisdiction in relation to tenant's rights applications [see Ch.3, s.5]. These include protections against inadequate repair, harassment, substantial interference with reasonable enjoyment violations, illegal entry and withholding vital services - amongst other things.

All such applications first must seek a "determination" that the alleged behaviour has in fact occured, and then move on to a consideration of the requested remedies. Monetary remedies available to both tenants and former tenants within one year of the breach include [Act s.29(2)]:
  • compensation for repair and/or replacement costs;

  • abatement of rent; and

  • where the tenant has moved as a result of the landlord behaviour, increased rent in their new premises for one-year subsequent, and out-of-pocket expenses for moving and such.
Also available are "administrative fines", payable by the landlord to the Board ("Board fines"). But for the payment of these to the Board they can be viewed as analogous to "punitive damages" in the civil courts.

Earlier case law has been favourably disposed to the civil courts exercising their traditional damages role in tort situations. Thus in Beyer v Absamco Developments Ltd (1976) 12 OR (2d) 768 (County Court), a tenant's claim for general damages for alleged tortious acts committed within a residential L&T relationship, was properly taken before the civil court in a regular lawsuit. Similarly, this route was successfully followed in the civil case of Robitaille v Moore [Court File #97-CU-119459, Ontario Superior Court, 27 April 2004] (argued by the author), where a residential landlord who intentionally killed a tenant's dog in the course of a landlord and tenant dispute was found liable for $15,000 compensatory and $15,000 punitive damages.

That said, both of these case were argued before the more-extensive RTA "tenant's rights" provisions were passed into law. Under the "mutually exclusive" jurisdiction doctrine it can be argued that, to the extent that these "new" provisions are available in terms of limitations, cause of action and remedies, that they (exclusively) 'occupy the field' in terms of tort-like remedies for such behaviours.

(f) Monetary Compensation in Restitution

. Overview

"Restitution" is a form of "equitable" compensation for "unjust enrichment". It is available in civil courts as an equitable remedy where there is: enrichment, corresponding loss, and "no juridical reason" for the enrichment and the loss (ie. no legitimate legal reason, such as contract). A simple example calling for restitutary relief would be the inadvertent overpayment of an invoice. Restitution remedies are distinct in that they are neither contractual nor tort-based, and their availability is conditioned by equitable concerns. The primary equitable precondition is that the claimant have "clean hands", which means that their prior behaviour not be significantly impugned by such things as bad faith or intentional wrong-doing.

The application of restitution as a tenant remedy in residential landlord and tenant situations will almost always (as a practical necessity) involves rent (or prohibited charge) payment and recovery. Setting aside statutory remedial intervention, it is ideally suited for recovery of illegal rents and charges.

. Board Applications to Recover Illegal Rent and Charges

As such, the consideration of the extent of "restitution" availability in the civil courts requires an examination of the RTA's remedies for illegal rent and charges [see Ch.12, s.7: "Other Rent Proceedings: General Application to Recover Illegally-Paid Monies"].

A general Board application process is available to tenants (as well as former and prospective tenants) to obtain "an order that the landlord, superintendent or agent of the landlord pay to the tenant any money the person collected or retained in contravention of this Act or the Tenant Protection Act" [Act s.135(1)]. Similar, though more specific, such recovery is available under s.115.

Perhaps redundantly [at least for purposes of illegal rent recovery - in light of s.136(1) discussed below], the RTA continues to bar recovery applications unless brought within one year "after the person collected or retained money in contravention of this Act or the Tenant Protection Act" [Act s.135(4)].

. Retroactive Legalization of Illegal Rent After One Year

That said, the outlook for any form of illegal rent recovery is drastically curtailed - either through the Board or the civil courts - by the following RTA provisions:
RTA s.136(1)
Rent charged one or more years earlier shall be deemed to be lawful rent unless an application has been made within one year after the date that amount was first charged and the lawfulness of the rent charged is in issue in the application.
While this provision is superficially similar in form to the common "one-year limitation" periods noted in s.2 above, it is unlike those other provisions in that it does not only bar the procedural availability of a remedy (eg. the right to sue) - but it actually retroactively legitimizes past illegal rents both for recovery and for future legal rent purposes [Act s.136(2)].

. Illegal Charges

As to what "non-rent" charges are "illegal", the reader should review Ch.10, s.5: "Rent Fundamentals: Non-Rent Charges and Security Deposits".

While there is no RTA provision "legalizing" unchallenged illegal charges after a year [such as s.136(1) does for illegal rents, see above], recovery of illegal charges under the general s.135 recovery application procedure is still subject to the s.135(4) one year limitation period. That is, the RTA bars such recovery applications unless brought within one year "after the person collected or retained money in contravention of this Act or the Tenant Protection Act" [Act s.135(4)].

However (unless my imagination fails me), it is difficult to imagine under what circumstances one might file a s.135 recovery application in April 2008 to recover a March 2007 illegal charge - so the distinction may be meaningless. Unlike retroactively "legalized" rents, illegal charges are typically one-time, and as such cannot have the ongoing impact on future legal rent that s.136(1) creates.

Where this limitation period is missed, a good argument exists for restitutionary recovery in the civil courts, though the quantum involved in most such cases would not likely make this worthwhile.

. Restitution for Income Misrepresentation in Social Housing

Where a tenant in public housing receiving a "rent geared to income" (RGI) subsidy is alleged to have "knowingly and materially" [Act s.60(1)] misrepresented their or their family's income for eligibility purposes, then they are subject to early termination and eviction for cause [see Ch.6, s.7]. Note that a landlord applying to the Board for termination and eviction on these grounds may also request "an order for the payment of money the tenant would have been required to pay if the tenant had not misrepresented his or her income or that of other members of his or her family" [Act s.90]. Such a "restitution" order may only be initiated in conjunction with related termination and eviction Board proceedings, and therefore only while the tenant is still in possession of the premises.

Several key points need to be made as to the limited availability of this Board "restitution" remedy in terms of the residual jurisdiction it may leave the courts.

Firstly, the previous Rental Housing Tribunal and courts before it were regularly faced with applications to terminate and evict for non-payment of rent in situations where "rent-geared-to-income" (RGI) amounts were determined outside of normal rent controls. This brought them into complex and often policy-driven areas (often discretionary to the public-housing provider) that they were uncomfortable with. As a result, the RTA now has the following provision - which has a very unhappy co-existence with the the s.90 restitution provision:
RTA s.203
The Board shall not make determinations or review decisions concerning,

(a) eligibility for rent-geared-to-income assistance as defined in the Social Housing Reform Act, 2000 or the amount of geared-to-income rent payable under that Act; or

(b) eligibility for, or the amount of, any prescribed form of housing assistance.
How - given this s.203 restriction - the Board may [under s.90] determine the quantum of (or even complete) RGI ineligibility is difficult to see.

Secondly, the Board social housing restitution provisions only operate where the misrepresentation is intentional ("knowingly"), and as such is not available for restitution in cases of negligent or innocent misrepresentation.

Thirdly, Board social housing restitution is only available where "a landlord has a right to give a notice of termination under section 60". This is an odd provision in that it does not tie the restitution remedy to the social housing misrepresentation termination and eviction application (though they can be coincident), but appears to tolerate a Board restitution application during (and even separate from) the ongoing misrepresentation. That said, to the extent that such restitution applications will be brought in conjunction with the termination and eviction application (as seems natural), they will be themselves conditioned by the general limitation on the bringing of such applications within 30 days after the date of termination specified in the notice [Act s.69(2)], and the requirement that the "tenant is in possession of the rental unit" [Act s.90].

Given these three major restrictions on the availability of the Board s.90 social housing restitution remedy, broad jurisdictional room remains for civil court restitution in relation to social housing "over-subsidization" under the "complementary jurisdiction" doctrine.

. Summary

The upshot of all of the above is that - but for the lone exception of social housing restitution set out above - the use of restitution in civil courts for recovery of illegal rents and charges appears to be extremely narrow (ie. only "illegal charge" recovery where the one year Board limitation period is missed).

5. L&T Board and Staff Civil Immunity

The LTB as a legal body is immune from civil liability, just as courts and judges are: Raba v Landlord and Tenant Board (Ont Sup Ct, 2014).

Additionally, "an investigator, an inspector, a member of the Board or a public servant employed" by the Board are also immune from civil liability (ie. damage claims) for "any act done in good faith in the performance or intended performance of any duty or in the exercise or intended exercise of any power under this Act or for any neglect or default in the performance or exercise in good faith of such a duty or power" [Act s.232(1)].
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