Where Can A Landlord Recover Unpaid Utilities?

Deputy Judge Winny recently decided a Small Claims Court case dealing with a residential tenancy matter, which he said highlights the "imperfect intersection" between the jurisdictions of the Small Claims Court and the Landlord Tenant Board.

The Landlord had gone to the LTB to seek arrears of rent, including several hundred dollars for unpaid utility bills.  The adjudicator orally stated that the utilities were outside the Board's jurisdiction, and declined to award such damages, instead just awarding the 'rent' component of the arrears.

The Board's formal order made no reference to utilities.

Deputy Judge Winny disagreed with the adjudicator, finding, "In my view the board had jurisdiction over the claim for unpaid utilities."  Because the Board had jurisdiction, the Small Claims Court didn't.

This is immensely frustrating for a litigant, where you have a claim, but every venue to pursue it tells you, "This isn't our department."  The legal system can sound a bit like a telecom company, passing you from department to department.  (Kind of reminds me of the Mehedi case, where Mehedi kept getting bounced between the Court of Appeal and the Superior Court for a motion to set aside a judgment.  The difference is that, notwithstanding ridiculous delays, Mehedi probably will eventually have his case heard.)

Deputy Judge Winny expressed concern that the Board hadn't referenced the utilities in its formal order, but essentially suggested that the Landlord should have appealed the order under the Act, instead of pursuing the claim at Small Claims Court.

Commentary

For the most part, I agree with Deputy Judge Winny's analysis:  Utilities are within the jurisdiction of the Landlord Tenant Board, and the LTB was probably wrong to find otherwise, and the ideal avenue for the Landlord would have been to seek reconsideration or to appeal the decision.

However, I don't agree that the Deputy Judge should have embarked upon an analysis of the Board's jurisdiction in the first place.

Here's the thing:  The Board's process is quite informal.  In an ideal world, we'd see written reasons as to why the Board dismissed the claim for utilities, but ultimately, oral reasons (even without a transcript) are probably going to end up being sufficient, within the context of the Board's process.

On the facts of this case, the Deputy Judge had a formal order from the Board that did not dispose of the utility claim, but an uncontested accounting of oral reasons that the claim was dismissed for jurisdictional reasons.

If the Deputy Judge was able to regard the Board as having dismissed the claim as being outside of the Board's jurisdiction, and I would argue that the basis was there to so conclude, then this would most likely result in what we call "issue estoppel", or "res judicata".  The Board, being a body of competent jurisdiction, had decided finally and specifically the question of the Board's own jurisdiction over utility claims, in a proceeding between the same parties.  Simply, it is not open to the Small Claims Court to re-open the question, even if it disagrees with the answer the Board gave.

By treating the question as being subject to res judicata, the Deputy Judge could have proceeded to consider the merits of the claim and award damages if appropriate, without even opining about the jurisdictional question (or perhaps expressing his doubts about it in obiter), and without creating a precedent as to the Small Claims Court's jurisdiction.  A messy solution in certain conceptual ways, but it would have gotten at the justice of the case.

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The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.