Must a Landlord Pursue a Tenant At the Landlord Tenant Board or Can the Landlord Go to Small Claims Court?
The Answer Depends on Many Factors Including Who Is Initiating the Proceeding, Whether the Tenant Is Still In the Unit, and What the Legal Issue Is.
Understanding How to Determine Whether a Legal Issue Is a Landlord Tenant Board or Small Claims Court Issue
Where a dispute between a landlord and a tenant should be initiated can be very challenging to determine. For some issues, depending on whether the tenant is still living in the unit, the matter must proceed at the Landlord Tenant Board; and yet, for the same issue, if the tenant already moved out, or failed to move in, the matter is barred from proceeding at the Landlord Tenant Board. The rules on where a legal case should be started can be confusing. Further, if a case is started in an improper venue, the case may be tossed out, perhaps with the inability to start again in the proper venue. For these reasons, it is very important to review the case issues and the law requiring jurisdiction to ensure that the case is properly commenced.Definition:
For the majority of disputes arising out of the relations between a landlord and tenant involved in a residential tenancy, the Residential Tenancies Act, 2002, S.O. 2006, Chapter 17 will apply. For matters where the Residential Tenancies Act, 2006 applies and the Landlord Tenant Board is conferred with decision making authority, per the 'exclusive jurisdiction' provision stated with in section 168 of the Residential Tenancies Act, 2006, such decisions must be made by the Landlord Tenant Board and jurisdiction of the Small Claims Court is ousted; Brydges v. Johnson, 2016 CanLII 4942; Finney v. Cepovski, 2015 CanLII 48918 at 17; Efrach v. Cherishome Living, 2015 ONSC 472 at 6; Mercier v. Hawco, 2014 CanLII 141 at 6 to 7; Fraser v. Beach, 2005 CanLII 14309 (ON CA) at 15. Regrettably, the Residential Tenancies Act, 2006 provisions, and thus Landlord Tenant Board exclusive jurisdiction, can be confusing as many provisions are conditional and perhaps vague; and accordingly, subject to differences of interpretation.
In the recent decision within Kiselman v. Klerer, 2019 ONSC 6668 the Divisional Court addressed the frequently occurring, and confusing, issue regarding whether a landlord is required to pursue a former tenant for concerns of rent arrears as well as damage caused to the rental unit at the Landlord Tenant Board or at the Small Claims Court. The Division Court stated:
 The landlord brought a claim in Small Claims Court for rent arrears and damage to the property. The claim was brought after the tenant had vacated the property. The amount of the claim did not exceed the $25,000 cap, then in place under s. 207(1) of the Act. It is plain and obvious that s. 168(2) of the Act gives the Board exclusive jurisdiction to determine claims of this type between landlord and tenant. The parties had a landlord and tenant relationship, and in my view, nothing turns on the fact that the action was started after the tenant was no longer in possession. It is clear that disputes of this sort are the daily fare of the Landlord and Tenant Board. When assessing claims, the Board is in the best position to determine whether claims for rent arrears and allegations of damage to property against the tenant amount to “undue damage” or simply wear and tear as a result of the normal occupancy of a residential unit.
Multiplicity of Proceedings
Sometimes the jurisdiction conditions can cause a multiplicity of proceedings occuring in two places such as where tenancy relations break down prior to the move-in date whereas the tenant must apply to the Landlord Tenant Board for return of a rent deposit as governed by section 107(1) of the Residential Tenancies Act, 2006; and yet, the landlord may be forbidden from applying to the Landlord Tenant Board per the section 87(1) condition that require the landlord's access to the Landlord Tenant Board be available for certain matters only if the tenant is in possession of the rental unit. For example, this circumstance often occurs where a tenant tries to 'opt out' of a lease at the last moment, for whatever other reason, by failing to occupy the rental unit and then subsequently seeking return of a first and last rent deposit. Regardless of the reason the tenant seeks return of the rent deposit, the tenant must pursue the return of the rent deposit at the Landlord Tenant Board per section 107(1) which provides that the Landlord Tenant Board may hear a case about why the rent deposit should be returned and this section coupled with the section 168 exclusive jurisdiction provision imposes the absoluteness of the requirement that the rent deposit question be decided by the Landlord Tenant Board. Contrarily, in the same situation, if the landlord wishes to claim loss of rent arising from the 11th hour opt out by the tenant, the landlord must proceed to the Small Claims Court by virtue of inaccess to the Landlord Tenant Board that arises from the section 87(1) condition that the landlord may seek rent arrears from the Landlord Tenant Board only if the tenant remains in possession of the rental unit - and in this situation the tenant failed to take possession of the rental unit. It is interesting to note that the tenant may be with good reason to opt out at the last moment, the tenant may even be in the right with a good enough reason to 'win'; however, the tenant must pursue return of the rent deposit via the Landlord Tenant Board and the landlord must pursue the loss of rent at the Small Claims Court despite the multiplicity of proceedings problem that arises.
With the above said in regards to a multiplicity of proceedings, principles of natural justice may permit, and perhaps require, that one of the proceedings be stayed until a decision is made in the other forum and then the decision in the matter that was stayed may need to follow the factual decisions in the matter decided upon first. This procedural Stay of one of the two processes ensures that the risk of two opposing factual decisions are avoided whereas two opposing factual decisions would put the administration of justice into disrepute.
Whether a legal dispute between a landlord and tenant must proceed at the Landlord Tenant Board will depend on the issue in dispute. For some legal issues, the matter must absolutely be heard by the Landlord Tenant Board as a matter of 'exclusive jurisdiction'. For other legal issues the Landlord Tenant Board may be without jurisdiction and therefore lack authority to hear the matter at all. Understanding which type of legal issues must proceed at the Landlord Tenant Board and which must proceed elsewhere is highly important to ensuring that a case gets properly heard and that justice gets done.