The floor tiles are chipped. There is a crack in the drywall. The carpet is torn and unsecured. The bathtub leaks onto the floor.
In residential premises, a tenant can trip, slip, or fall due to any of these conditions. If injured, can the tenant sue their landlord for negligence? And if so, what are the time limits for commencing such an action?
Many Ontarians are familiar with the 2-year limitation period for starting lawsuits. What is less-known is that certain legal proceedings fall outside of that limitation period. Section 2 of the Limitations Act of Ontario states that the 2-year limitation period applies to court proceedings. Matters brought in front of administrative tribunals are not “court proceedings.”
Where a tenant is injured due to a defect or state of disrepair in the rental premises, then, subject to a court of appeal directive on the matter, the Superior Court of Justice does not have jurisdiction over the legal proceedings. Instead, the Landlord and Tenant Board, an administrative tribunal established under the Residential Tenancies Act, has exclusive jurisdiction to hear the tenant’s complaint.
On January 11, 2010, Armand Letestu tripped over a worn carpet in his living room, sustaining injuries. Twenty-three months later, he sued his landlord for negligence, for failure to repair the carpet and for failing to abide by his obligations under the Occupier’s Liability Act. The landlord brought a motion to strike the claim, on the basis that the Court did not have jurisdiction but rather Mr. Letestu should have brought his complaint before the Landlord and Tenant Board.
The Court agreed with the landlord. As long as the “substance” of the dispute was disrepair and unsafe living conditions caused by the landlord, then the Residential Tenancies Act was the governing statute for the dispute.
Under the Residential Tenancies Act, all claims under $25,000 must be heard by the Board. Claims over $25,000 may proceed in the Superior Court of Justice; however, the Residential Tenancies Act imposes a one-year limitation period for the commencement of such a lawsuit.
Because of that ruling, Mr. Letestu was out of luck. His claim against the landlord exceeded $25,000, but he started his court action after the 1 year limitation period expired.
The decision, Letestu v. Ritlyn Investments 2016 ONSC 6540, is presently under appeal. Ultimately the Court of Appeal will determine whether the essence of this complaint is one of negligence under the Occupier’s Liability Act, in which instance the Superior Court would have jurisdiction over all court actions for damages and, just as importantly, the 2-year limitation period under the Limitations Act would also apply.
Mr. Letestu died of cancer in 2011, but his estate may yet be successful in pursuing damages against the landlord, depending on the Court of Appeal’s decision.