An interesting case came to my attention just in time for it to be my turn to write the firm’s weekly Blog. The case is Kiselman v. Klerer, 2022 ONCA 489. This is a decision of the Ontario Court of Appeal overturning two decisions below it, the first in Small Claims and an appeal of that decision to the Divisional Court.
According to the Court of Appeal both the Deputy Small Claims Court Judge and the Divisional Court Judge were incorrect.
The facts of this case are that a Residential Landlord sued their former tenant for arrears of rent and damages to the premises in Small Claims Court after the tenant moved out.
I’m going to pause here to point out this matter was started in 2017 under the Ontario Residential Tenancies Act, 2006 (“the Act”). That is no longer the Act that governs residential Landlord and Tenant issues in Ontario and this case may have a different outcome if it were started in 2022.
Anyway, back to the case. At the time the Small Claims Action was started the Act said the Landlord an Tenant tribunal had exclusive jurisdiction for matters if the tenant was still in the unit. You’ll recall from the facts above the tenant had moved out, so “plain reading” of the Act says that it doesn’t have exclusive jurisdiction.
There were at least three decisions of the Small Claims Court Deputy Judges at that time that said despite that wording, if the Landlord could have with due diligence moved when the tenant was still in possession the Act applied and they had to go to the Landlord and Tenant Board, not the Small Claims Court.
Those decisions were not appealed by the Landlords who lost. That may have been because they didn’t have counsel, didn’t have the funds to Appeal or just didn’t want to carry on. Regardless, it’s important to keep in mind they were all Small Claims Court decisions.
In Canada we have the doctrine of stare decisis, this means that Courts below are governed by the decisions of Courts that are levels higher than them. Courts at the same level are persuasive, but not binding.
The Divisional Court appears to have forgotten that when it accepted the tenant’s argument on Appeal and agreed that the matter should be before the Landlord and Tenant Board.
Fortunately, the Landlord chose to appeal to the Court of Appeal. In this decision the Court pointed out the clear wording of the act meant Small Claims had jurisdiction and there was nothing to support the Small Claims Court decisions that decided the opposite. Finally, five years after they started their Small Claims Action the Landlord was able to continue their Small Claims Court action.
They received $ 3,500.00 in legal fees (I’m sure the actual fees were closer to $ 20,000.00) and now they’re back in the cue …. Which means maybe they’ll have Judgment in 2024 given the backlogs.
The point of this blog is not to rail on about Court delays, but it is to point out that Appeals matter. When parties with legitimate positions don’t Appeal, the Courts can be clogged with numerous similar decisions that are not correct. Yes, economics factor into Appeal decisions, but ultimately, our legal system relies on the bravery of parties to Appeal incorrect decisions.
Inga B. Andriessen, Principal Lawyer