Letestu Estate v. Ritlyn Investments Limited, 2017 ONCA 442

Court of Appeal reverses 1 year limitation imposed by SCJ for some Occupier’s Liability claims

Released June 1, 2017 | Full Decision [CanLII]

This action arose out of a trip and fall which occurred on January 18, 2010.  The Plaintiff, Armand Letestu (now decesased), was walking in his apartment when he tripped and fell on a worn, torn and unsecured carpet at the threshold of the living room.  The apartment building was owned by the Defendant and the carpet had been worn for some time.  There had been numerous complaints and despite knowing of the condition of the carpet the Defendant did nothing to remedy the state of disrepair.

As a result of the fall the Plaintiff suffered injuries to his knees, resulting in a serious infection requiring extensive hospitalization as well as a closed head injury.  The Plaintiff was 75 years old on the date of loss and he died from complications from cancer on May 14, 2011.

The Statement of Claim was issued in December 2011 on behalf of the Estate seeking damages for personal injuries.  The matter proceeded through the litigation and in September 2016, on the eve of trial, the Defendant brought a motion to strike the claim on the basis the Superior Court had no jurisdiction to hear the action as the matter had not been issued within one year of the date of loss.

In His ruling on the motion, Justice Sloan held that the matter was within the exclusive jurisdiction of the Landlord and Tenant Board (“Board”).   As a result of that finding, he held that the action had to be commenced within one year pursuant to section 29(2) of the Residential Tenancies Act (“Act”), before the Superior Court of Justice could assume jurisdiction over the claim.  In coming to his conclusion, the motions judge relied upon Efrach v. Cherishome Living, 2015 ONSC 472 (Div. Ct.).

The Plaintiff appealed and the matter was heard on May 18, 2017.  The Court of Appeal held that the Board did not have exclusive jurisdiction over the matter as the Plaintiff’s claim exceeded the monetary jurisdiction of the Board and the operation of section 207(2) of the Act.  The Court of Appeal held that the Superior Court of Justice had jurisdiction and could make any order that the Board could have made in addition to any relief it could grant in a court proceeding.

The Court of Appeal further held that it was the Limitations Act, 2002 which applied to the proceeding and found that it was unnecessary to determine the factors that would have taken the claim outside of the Board’s jurisdiction.  They went on to add that the applicable limitation period would have been two years from the date of loss and may well have been two years from the date of the death of the Plaintiff pursuant to the Trustee Act.

This decision is of significant importance to Plaintiffs across the province, as well as to LawPro who was placed on notice of countless potential claims in the event the one year limitation was upheld.  As a result of this Decision, the two year limitation period stands, as well as the unfettered jurisdiction of the Superior Court.

Read the full decision on CanLII
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