Landlord and Tenant Law questions answered for tenants and landlords by Ottawa lawyer Michael Thiele.
Thursday 5 January 2023
How to deal with a Tenant's Non-Payment of Rent
Tuesday 3 January 2023
Chasing a former tenant for compensation for damages!
A former tenant damaged the rental unit. How do you get them to pay for the damages that they caused?
I get this question often enough and the answer today is different than it was a short while ago. The core of the question is whether you have to sue in the Small Claims Court or if you can file a claim at the Ontario Landlord and Tenant Board.
The old (and not current) rule was that if the tenant was out of possession then you could only pursue a claim in the Courts. Typically that meant the Small Claims Court if the claim was under $35,000.00 (the jurisdictional limit of the Small Claims Court). If the cost of repairs exceeded the sum of $35,000 and you intended to pursue that higher claim (and thought it worthwhile) then you could file a claim in the regular Superior Court of Justice either under the simplified rules or regular rules. Claims for amounts in the Superior Court but not Small Claims Court are best pursued by hiring a lawyer (you can not retain a paralegal for such claims).
THE CURRENT LAW
Today, the current rule is that you must file a claim for damage to the rental unit against a former tenant at the Ontario Landlord and Tenant Board if the damages were caused by the tenant during the course of their tenancy. Note that “tenant” includes another occupant or other person permitted in the residential complex by the tenant. The damage caused by the tenant also, to be recoverable, must have arisen from willful or negligent conduct and the damage must be “undue”.
How did this happen? The Ontario legislature amended section 89 of the Residential Tenancies Act to include former tenants and now the Landlord and Tenant Board has jurisdiction over these former tenants for actions taken during the tenancy. The fact that the LTB has jurisdiction over these former tenants for these kinds of claims has also now clarified that the Small Claims Court no longer has that jurisdiction (except for transitional cases that were ongoing at the time of the legislative amendments).
It is important to recognize that the ability to file a claim against former tenants at the LTB comes with a shorter than expected limitation period of one year (see RTA section 89 (1.1)). The usual 2 year limitation period that typically applied for claims in the Superior Court seems to have been shortened. Though, arguably the one year period is clearer in that the period runs from the date that the tenant gave up possession and not from when the damage was done.
The Form that you will be using to file with the Ontario Landlord and Tenant Board against the former tenant is the Form L10. For those wondering if there are other claims that can now be made against former tenants at the LTB take a quick look through the forms because indeed there are–including rent arrears.
And lastly, if you are in the unfortunate position that your former tenant caused more than $35K worth of damage and it is indeed worthwhile to sue (because recovery seem possible) then you may still file a claim in the Superior Court of Justice. Whether such a claim is time limited to one year from the date of the tenant vacating the unit is not entirely clear.