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Limitations Act decision clears the way for tenant's action against landlord


Tenants who are injured due to negligence caused by their landlords can breathe easy after the Court of Appeal overturned a decision finding that a one-year limitation period applied, says Ottawa personal injury lawyer Najma Rashid.

The plaintiff in the case was injured in January 2010 after tripping over a carpet in his apartment, but a claim against his landlord was not filed in court until December 2011.

Although the province’s Limitations Act sets a two-year deadline for court proceedings, a Superior Court judge struck the claim after finding it fell within the exclusive jurisdiction of the Landlord and Tenant Board, which has a one-year limitation period set by Ontario’s Residential Tenancies Act (RTA).

“We can all breathe a sigh of relief after the appeal court’s decision because it confirms that the Limitations Act applies and that the Superior Court does have jurisdiction over alleged acts of negligence against landlords,” Rashid, a partner with Howard Yegendorf & Associates.

She says the initial decision made waves among personal injury lawyers.

“It put a great amount of fear in the legal community because we always understood that the Limitations Act is unambiguous in applying a two-year limit on court proceedings,” she says. “The lower court transported the one-year limitation period from the administrative tribunal into the court actions in negligence, so the appeal court decision just restores the law.”

The unanimous three-judge panel of the province’s top court wrote that the motion judge got it wrong when he ruled the board had exclusive jurisdiction over the claim. For example, the RTA allows tenants to claim for non-repair by landlords when the amount of damages is over the $25,000 Small Claims Court limit. In this case, the plaintiff claimed $500,000.

“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 appeal court judges wrote.

In addition, the RTA permits a judge “to make any order the Board could have made in addition to any relief it could grant in a court proceeding,” the judgment reads.

Had the appeal court ruled the other way and upheld the Superior Court’s judgment, Rashid says it could also have sparked a rash of solicitors’ negligence actions in similar cases where the shorter deadline would have resulted in claims being dismissed.