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LIMITATION OF ACTIONS - Conflict between limitation periods - Which limitation period applies

Thursday, July 20, 2017 @ 8:21 AM  


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Appeal by the estate from a motion judge’s decision dismissing the estate’s action for damages for injuries. Twenty-three months after the deceased’s alleged slip and fall over damaged carpet in a rental unit, the estate had commenced an action against the respondent owner and manager of the apartment building for damages for injuries. On the eve of trial, the respondent moved to strike the claim on the basis the Superior Court had no jurisdiction to hear it. The motion judge dismissed the estate’s action, after concluding the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board over the subject matter, and was outside the one-year limitation period prescribed under s. 29(2) of the Residential Tenancies Act. The estate appealed.

HELD: Appeal allowed. The motion judge erred in law in determining the Superior Court lacked jurisdiction over the claim because it was commenced after the one-year limitation period had expired. A plain reading of the relevant statutory provisions led to the contrary conclusion. The Residential Tenancies Act did not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the Board had jurisdiction over a tenant’s or former tenant’s claim for damages where the “essential character of the claim” was for non-repair and within its monetary jurisdiction. Because the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the Board, there was no question that the appellants were entitled to commence their proceeding in the Superior Court. The Court disagreed with the conclusion that the one-year limitation period for applications to the Board applied to actions before the Superior Court for non-repair. There was no basis for importing the limitation period prescribed by the Residential Tenancies Act for applications to the Board into an action of this kind. The limitation of actions was governed by the Limitations Act, 2002. As the action was commenced within two years of the deceased’s death, there was no question of the expiry of any limitation period to bar the action. The Superior Court had jurisdiction over the action and the claims were not statute-barred.

Letestu Estate v. Ritlyn Investments Ltd., [2017] O.J. No. 2835, Ontario Court of Appeal, H.S. LaForme, K.M. van Rensburg and G. Huscroft JJ.A., June 1, 2017. Digest No. TLD-July172017007