Residential Landlord and Tenant (Ontario) Legal Guide
Chapter 16 - Civil Remedies
(01 September 2020)
(a) The Issue
(b) The Legal and Statutory Context
- More Problems to Come and Issues They Raise
(a) More Problems
(b) Problem-Applicable Law
(c) Non-RTA Remedies in Small Claims Court
- Remedy Comparison: Courts Versus the RTA
(b) Declarations and Injunctions
(c) Monetary Compensation by Quantum
(d) Monetary Compensation in Contract
(e) Monetary Damages in Tort
(f) Monetary Compensation in Restitution
- L&T Board and Staff Civil Immunity
(a) The Issue
The subject of this chapter is the availability of civil court procedures to deal with matters arising within a residential landlord and tenant context. 'Civil court' procedures include both those of the full Superior Court (Ontario's main trial court) and the Small Claims Court, which is a branch of the Superior Court (hereafter "the courts"). This is an issue because of the extensive Landlord and Tenant Board (LTB) 'exclusive' jurisdiction set out in the RTA.
In other words the issue is: When can a residential landlord or tenant sue the other - as opposed to being restricted to the procedures of the LTB?
(b) The Legal and Statutory Context
To understand this issue and it's complexities, readers have to know some basics of the RTA legal system. As well, you will see that the manner in which the RTA has been interpreted in Ontario's higher courts [Kaiman v Graham (Ont CA, 2009)] varies from the RTA text. Law isn't supposed to do that, but in this case it had too.
. The RTA Regime Design
The LTB administrative regime hears most residential L&T matters in Ontario, and there are many. From the workhorse termination and eviction matters to a range of rent and damage compensations and more - they are all the 'orders' that are set out in this Residential Tenancies (Ontario) Legal Guide.
But, where a residential L&T matter goes above $35,000 [the 'threshold', at the date of writing] in monetary claim, the court takes over - meaning you can only file the case in the Superior court (unless you waive any amount above $35,000). The monetary amount of the claim is the 'measure' that the RTA uses to decide which body has jurisdiction over the case, the LTB or the courts:
RTA 207(1) When the case is filed in the court the RTA regime design is that all other case factors are assumed to be 'as though' the case were before the LTB: "... the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board ...". That is, the court is expected to act as though they were in the LTB's "shoes" - again, that was the plan.
The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court [SS: $35,000].
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.
. LTB'S 'Exclusive Jurisdiction' and Kaiman
Another essential point is that the LTB is supposed to have 'exclusive jurisdiction':
RTA 168(2) I say 'supposed to have' because the LTB doesn't really have 'exclusive jurisdiction', as the court in Kaiman v Graham (Ont CA, 2009) sensibly realizes. In Kaiman, the court acknowledges that [through RTA 207(2)] the courts have residential L&T jurisdiction as well - and that's only the most obvious degradation from exclusive jurisdiction - there are more.
The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.
. Non-RTA Residential Landlord and Tenant Preserved as Well
The concept of 'exclusive jurisdiction' used here in the RTA, is not the normal sort of 'exclusive jurisdiction' we are used to in law - in fact we are still sorting out what it means.
When the term is used elsewhere, lawyers think of the 'pure' exclusive jurisdiction that we are familiar with in the case of the labour relations case: Weber v Ontario Hydro  9 S.C.R. 929. In Weber 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. Weber reflects a purer 'complete code' form of exclusive jurisdiction, particularly in it's prohibition of lawsuits between the two parties.
And it's not as though residential landlord and tenant law didn't exist before the RTA - common law and equity, having been doing this sort of law for centuries. So in Kaiman, the plaintiff (quite sensibly since they were in the Superior Court anyway) sought non-RTA remedies as well:
 Contrary to the appellants’ submission, the central issue at trial was not the interpretation and applicability of a lease governed by the RTA. Rather, as discussed above, the issues at trial concerned the extension of the lease based on an alleged oral promise and compensation for improvements based on unjust enrichment or quantum meruit. The Superior Court undoubtedly had jurisdiction over this subject matter and the subject matter contained in the statement of claim. [SS: claims for non-RTA restitution]But these Kaiman examples of exceptions to the LTB's 'exclusive jurisdiction' are relatively simple and easy ones. Claims of restitution, declaration and equity are bread and butter to the courts, and it is no surprise that they held them to be allowable, despite the RTA's over-blown 'exclusive jurisdiction'.
 The appellants have framed the issue on appeal as being whether a declaration terminating their tenancy should be granted. They submit that the Landlord and Tenant Board has exclusive jurisdiction to decide this issue: see generally, Part V of the RTA and s. 168(2). However, their statement of claim does not contain a request for a declaration terminating a tenancy. It requests a declaration that a tenancy exists. The RTA does not confer jurisdiction on the Tribunal to determine whether there is a valid tenancy agreement. The existence of a tenancy agreement is presumed: O’Brien v. 718458 Ontario Inc. (1999), 25 R.P.R. (3d) 57 (Ont. Gen. Div.). [SS: claim for a non-RTA declaration]
 Furthermore, in their statement of claim, the appellants sought numerous grounds of relief, including equitable relief and a certificate of pending litigation, which the Landlord and Tenant Board would have had no jurisdiction to order. [SS: claim for a non-RTA equitable relief and more]
 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 theirproceeding in the Superior Court. Having done so, that court had all the jurisdiction that the Board would have had. So that's another strike against the RTA having 'exclusive jurisdiction' - a party may seek in the courts 'residual' non-RTA residential landlord and tenant remedies that they had before the RTA existed.
 ... Simply put, the Superior Court had jurisdiction to grant any and all of the relief claimed by the appellants. The Board did not. Any jurisdiction it did have was, by virtue of s. 207(2), non-exclusive.
. Statutes May Derogate the Court's Jurisdiction if Done in "Unequivocal Terms"
The legal issue 'battle-ground' under which these exclusivity issues are being fought is that where a statute (of which the RTA is one) may 'derogate' from a court's jurisdiction. That means where a statute may dictate that a court no longer had power that it used to have.
For that answer we go to first principles, in the related case of R v Parker v. Yundt et al (Ont Sup Ct, 2012)]. It states that a legislature may derogate from the Superior Court's otherwise universal jurisdiction if done by “legislation in unequivocal terms”:
 The Courts of Justice Act, R.S.O. 1990, c.C.43, s. 11(2) provides this court “all the power and authority historically exercised by the courts of common law and equity in England and Ontario.” It is uncontroverted that the jurisdiction of this court is broad. . Letestu, Limitations and Further Weakening of the RTA's Exclusive Jurisdiction
 It has, however, long been settled by this court and the Court of Appeal that this court’s jurisdiction may be limited by legislative provisions. While in Michie Estate v. Toronto (City), 1967 CanLII 202 (ON SC),  1 O.R. 266, Stark J. of the High Court determined the court had jurisdiction to deal with a land title issue, in para. 11 he stated the then Supreme Court of Ontario had broad universal jurisdiction “unless the Legislature directs from this universal jurisdiction by legislation in unequivocal terms”.
 The Michie Estate case, supra, was supported by our Court of Appeal in 80 Wellesley St. East v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA),  2 O.R. 280 where Brooke J.A. said as follows at p. 282:
As a superior Court of general jurisdiction, the Supreme Court of Ontario has all of the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court's jurisdiction is unlimited and unrestricted in substantive law in civil matters. Similarly, in Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 Juriansz, J.A. in para. 8 sets out that it has long been settled that the jurisdiction of a Superior Court may be limited by statute. Reference is made to the leading case on this principle, Board v. Board, 1919 CanLII 546 (UK JCPC),  A.C. 956 (P.C.).
There's more. The court's plainly do not tolerate derogation from their authority lighly.
Remember the RTA 207(2) phrasing that "the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board"? That, clearly was meant to provide that the court would 'otherwise' use RTA law respecting other necessary legal things. It's as close to saying: 'as though in their shoes", as you can get in law.
That was tested in the case of Letestu Estate v. Ritlyn Investments Limited (Ont CA, 2017), where the issue was which limitation period applies to a court-brought RTA lawsuit: the one-year limitation under the RTA or the standard two-year limitation under the Limitation Act, 2002. The lawsuit was filed 23 months after the events, so it mattered. The court reversed the lower court and held with the two-year period from the Limitations Act (and the Trustees Act), thus against weakening the 'exclusive jurisdiction' of the RTA:
 In arriving at this conclusion, the motion judge followed Efrach v. Cherishome Living, 2015 ONSC 472,  O.J. No. 293 (Div. Ct.), a decision of a single judge of the Divisional Court upholding an appeal from the Small Claims Court. The appeal judge in Efrach agreed with the Deputy Judge’s characterization of the claim as one of non-repair and held that the Board had exclusive jurisdiction. In the part of her decision that is relevant here, she refused leave to amend the claim to permit damages exceeding the monetary jurisdiction of the Board, and to transfer the action to the Superior Court. She reasoned that, after the expiry of the one year limitation period for making a claim to the Board, the claim could not be transferred to the Superior Court since that court “can only exercise powers that the Board could have exercised if the proceeding had been before the Board”: at para. 21.. Summary
 While we express no opinion on the result in Efrach, we disagree with the conclusion that the one year limitation period for applications to the Board applies to actions before the Superior Court for non-repair. The motion judge here erred in following the reasoning in /Efrach/ and concluding that the court lacked jurisdiction over the action.
 There is simply no basis for importing the limitation period prescribed by the Act for applications to the Board into an action of this kind. The limitation of actions is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
and, pursuant to s. 19, the limitation periods listed in the schedule to that Act (including s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23 which requires a tort action by an estate to be commenced within two years of the deceased’s death). As the action was commenced within two years of the deceased’s death (and indeed within two years of the alleged slip and fall), there is no question of the expiry of any limitation period to bar the action.
This jurisdictional problem with the RTA's 'exclusive jurisdiction' is that the relevant RTA provisions don't meet the 'unequivocal terms' standard to override the inherent jurisdiction of the Superior Court.
Litigants will have to be very careful in these jurisdictional matters as there are more potential ones to come. It's very obvious that 'pro'-exclusive jurisdiction parties will want to wave s.168(2) [the RTA's exclusive jurisdiction] about in the other side's face, and pro-court will want to argue cases like Kaiman and Letestu to weaken it. You can expect more arguments like this, for instance as below.
2. More Problems to Come and Issues They Raise
(a) More Problems
More jurisdictional problems can be expected, like these samples show:
(b) Problem-Applicable Law
- Similar Causes of Action
A tenant advances an RTA 29(1)4 application against a landlord for harassment before the LTB, doesn't succeed - but later sues in court for 'intentional infliction of mental suffering' on essentially the same facts [in either the Small Claims or the Superior Court]. Can the tenant maintain the action or will it fall under issue estoppel and/or abuse of process?
Change the scenario such that the facts of dispute are partially different, through the tenant changing their allegations and/or the passage of time. Same question.
Change the facts again so that they are different but could have been raised before the LTB. Same question.
- Similar Remedies
A landlord advances a termination and eviction application (only) before the LTB, doesn't succeed - but later sues in court for damages over $35,000 to the premises [in either the Small Claims or the Superior Court] and seeks termination and eviction (again). Can the landlord maintain the action or will it fall under issue estoppel and/or abuse of process?
Change the scenario such that the facts of dispute are partially different, through the landlord changing their allegations and/or the passage of time. Same question.
Change the facts again so that they are different but could have been raised before the LTB. Same question.
All this talk of 'exclusive jurisdiction' is very edifying, but it is really proxy for concerns that arise with two practical situations:
(1) Which legal body (if any) can hear the claim?, and In either case, when the 'exclusive jurisdiction' line is crossed, then the negative response of the legal body is to either rule that they 'have no jurisdiction' to hear it, - or, if they feel that the issues have already been litigated, to rule that the doctrine of issue estoppel 'bars' the issues being re-heard before it. In either case, the law strives to only allows 'one shot' at the issue.
(2) When a party loses a claim before one body, when is it prevented by issue estoppel from re-advancing it before the other body?
The issue can get quite involved from a 'fact' perspective. A specific RTA remedy may turn into a difference court remedy by the addition or subtraction of a few facts - or at least it can be argued to do that. But both courts and the LTB will be watchful for duplicating adjudications over the same facts - that's what issue estoppel is all about.
For those court remedies sought that are plainly not included in the RTA's juridiction (such as restitution, equity, certificates of pending litigation and some declarations - to cite some examples from the passages from Kaiman, quoted above), the issue won't be as contentious amongst the parties. But for issues that are 'close' or plainly duplicative of express RTA remedies, we can expect to see the law of issue estoppel and abuse of process appear:
Case Note: So we can see that the law (whether at the hands of the court or tribunals) will strive to avoid re-litigation, so the party must make sure that they 'get it right, the first time' - in the present context, that means 'jurisdictionally-right'.
In Kazen v. Whitten & Lublin Professional Corporation (Ont CA, 2020) the Court of Appeal sets out the test for issue estoppel:
 As the motion judge set out, relying on Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC),  2 S.C.R. 248, the test for issue estoppel consists of three parts:Case Note:
i. the same question has been decided;
ii. the judicial decision which is said to create the estoppel was final; and
iii. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised [or] their privies.
Winter v. Sherman Estate (Ont CA, 2018) shows us that where the strict elements of issue estoppel are not met, the law will still avoid re-litigation by application of the doctrine of abuse of process:
 Further, the appellants too narrowly construe the doctrine of abuse of process. This doctrine is flexible and unencumbered by the specific requirements of res judicata or issue estoppel: Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII),  2 S.C.R. 227, at para 40; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII),  3 S.C.R. 77, at para. 42. Where a precondition for issue estoppel has not been met, such as mutuality of parties, courts have turned to the doctrine of abuse of process to preclude re-litigation of the same issue: C.U.P.E., at para. 37. While the doctrine is similar to issue estoppel in that it can bar litigation of legal and factual issues “that are necessarily bound up with the determination of” an issue in the prior proceeding, abuse of process also applies where issues “could have been determined”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII),  2 S.C.R. 460, at para. 54; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633 (CanLII), 363 D.L.R. (4th) 470, at para. 13; McQuillan v. Native Inter-Tribal Housing Co-Operative Inc. (1998), 1998 CanLII 6408 (ON CA), 42 O.R. (3d) 46 (C.A.), at paras. 8, 10. As such, the doctrine of abuse of process is broader than res judicata and issue estoppel and applies to bar litigation that, if it proceeded, would “violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: C.U.P.E., at para. 37.
I will walk through these cross-over potentials in detail in s.3 below.
(c) Non-RTA Remedies in Small Claims Court
These jurisdictional problems can be expected to be heightened when the 'competing' court is the Small Claims Court. The obvious 'exclusive jurisdiction' regime intent is that the Small Claims Court gets 'cut out' of an further legal action, RTA or otherwise. But the doctrine in Kaiman counters that, and it makes no distinction between the Small Claims Court (with it's $35,000 monetary limit) and the full Superior Court (with it's unlimited jurisdiction).
I see no barrier to arguing that the Small Claims Court has residential L&T (though non-RTA) jurisdiction, just as the full court had in Kaiman. We mustn't allowed the adoptation of the Small Claims Court monetary jurisdiction as the threshold between the LTB and the Superior Court for solely-RTA matters [RTA 207(2)], to effect other principles of court jurisdiction [lacking as they do "unequivocal (statutory) terms" that limit them].
That said, in Small Claims Court you have the additional complication of it's limited remedial jurisdiction: ie. monetary compensation under $35,000 and recovery of possession of personal property to that value. So injunctions or declarations are unavailable, although equitable remedies - as long as they conform to the court's remedial jurisdiction - are allowed: 936464 Ontario Limited cob as Plumbhouse Plumbing & Heating v Mungo Bear Limited 74 OR (3d) 45 (Ont Div Ct, 2003).
Case Note: Bye Estate v. Adair
In Bye Estate v. Adair (Div Ct, 2020) the Divisional Court considered (and dismissed) a tenant's appeal on a jurisdictional issue between the Small Claims Court and the LTB. The issue was the enforcement through the Small Claims Court of a RTA s.194 (board-assisted) agreement involving the chattel property of a deceased tenant and the (apparently) spouse:
 To determine whether it is the Board or a court that has jurisdiction over a dispute involving a landlord and a tenant, it is not the nature of the dispute that governs. The key question in such disputes relates to whether the essential character of the dispute, in its factual context, arises either expressly or inferentially from the statutory scheme: Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14 (CanLII),  1 S.C.R. 360, at para. 39. So, in Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801, the Court held at para. 44:Continue to Next Part of Chapter
“If the essential character of the dispute, in its factual context, arises from the statutory scheme, it does not matter that the claim is asserted for a cause of action which is ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. The characterization of the dispute is resolved by whether the subject matter of the dispute expressly or inferentially is governed by the statute[.]” The jurisdiction of the Board is set out in the RTA. The Board has exclusive jurisdiction to determine all applications under the RTA with respect to all matters in which it is given jurisdiction by the RTA. Because of this exclusivity of jurisdiction, if the Board has jurisdiction, then the Small Claims Court does not, even though both have a monetary jurisdiction of $25,000: Efrach v. Cherishome Living, 2015 ONSC 472, at paras. 5-6.
 Here, the following factors point to the exclusivity of the Board to deal with the issues raised by the appellant:
a. Bye had brought an application to the Board for consideration; Based on these factors, I find that the Board had exclusive jurisdiction over this dispute. The mediation related to the collection by an executrice of the belongings of a deceased tenant, pursuant to jurisdiction conferred on the Board under ss. 91 of the RTA. An agreement was entered into by the appellant under the authority of s. 194 of the RTA. The “essential character” of this dispute therefore relates to the scheme of the RTA in at least the two ways adverted to by the deputy judge in his decision dismissing the Claim: through sections 91 and 194 of the RTA.
b. It was on the basis of Bye’s application that the appellant, who claimed all along to be Bye’s executrice, took part in mediation provided by the Board;
c. After Bye’s death, the appellant was evidently concerned about retrieving Bye’s belongings, something permitted to an executor by s. 91(2)(b) of the RTA;
d. The appellant voluntarily engaged in mediation offered by the Board;
e. The mediation resulted in a mediated agreement, pursuant to s. 194 of the RTA, in which issues relating to s. 91 of the RTA were dealt with, apparently on agreement of the parties;
f. In the agreement, signed by the appellant, Bye is indicated as a “tenant”, and the respondents as “landlord”;
g. The appellant was advised in the agreement that she signed that she had a year from the date of the agreement to seek to reopen Bye’s application under the Rules of the Board.