Two Year Limitation Applies in Slip and Fall Case between Landlord and Estate of Tenant - Letestu Estate v. Ritlyn Investments 2017 ONCA 442

June 12, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Letestu Estate v. Ritlyn Investments         2017 ONCA 442

Ontario Court of Appeal case that affirms that the Limitation Act and  the 2 year limitation period applies to actions brought against a Landlord for personal injury damages where the damages exceed the limits of the Small Claims Court, which is in excess of $25,000.00

Date of Decision: June 1, 2017
Heard Before: Justice H.S. LaForme, K. van Rensburg J.A., and Grant Huscroft J.A.

OVERVIEW

In December 2011, the Letestu Estate commenced an action for damages for injuries the deceased suffered when he allegedly slipped and fell over a damaged carpet in his residential rental unit. The action claims $500,000 in damages from Ritlyn Investments, the owner and manager of the apartment building. It was commenced 23 months after the alleged slip and fall.

Ritlyn Investments moved to strike the claim on the basis the Superior Court had no jurisdiction to hear it under rule 21 of the Rules of Civil Procedure.

The motion judge dismissed the estate’s action concluding the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board, and was outside the one-year limitation period prescribed the Residential Tenancies Act. The estate appealed the decision.

On appeal, it was concluded that the motion judge erred in law in his determination that the Superior Court lacks jurisdiction over the claim because it was commenced after the one-year limitation period under the Act had expired. A plain reading of the relevant statutory provisions leads to the contrary conclusion.

 A plain reading of the four relevant provisions of the Act demonstrates the Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. In this case, the Superior Court has jurisdiction. The Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the Board has jurisdiction over a tenant’s or former tenant’s claim for damages (as well as other claims within the Board’s authority) where the “essential character of the claim” is for non-repair and within its monetary jurisdiction.

Because the estate claimed damages exceeding the monetary limit 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.  And, through the operation of s. 207(2), the court would be able to make any order the Board could have made in addition to any relief it could grant in a court proceeding.

The Appeal Court Justices 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 erred in following the reasoning and concluding that the court lacked jurisdiction over the action.

There is simply no basis for importing the limitation period prescribed by the Act. The limitation of actions is governed by the Limitations Act, 2002, 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.

Accordingly, the Superior Court has jurisdiction over the action and the claims are not statute-barred and the appeal is allowed.

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