Some Limitation Periods

Landlord applications (L applications) and forms:

For filing L (landlord) applications in general:

• 1 year after the tenant vacated: L10 application if the tenant is no longer in possession of the unit at the time of filing (available only for situations when the tenant vacated on or after September 1, 2021). See L10 instructions by the LTB.

If the tenant is still in possession at the time of filing:

• For filing L2 applications:

30 days after the termination date listed on the N5, N6, N7, N8, N12, N13 (RTA ss. 46(1)).

• For filing L3 applications about tenant giving notice or agreeing to vacate:

30 days after the termination date listed on the N9 or N11 (RTA ss. 46(1) for N9 and RTA ss. 77(3) for N11).

• For filing L4 applications about breach of settlement or order:

30 days after the breach of the underlying settlement agreement / consent order (RTA ss. 78(6)).

• For filing L1 applications about non-payment of rent:

N4 is in play for as long as the rent arrears on the N4 are still outstanding and the tenant is in possession (RTA ss. 46(2)) (please get legal advice if in doubt).

An L9 application for non-payment of rent (collection without eviction) can be filed while the tenant is still in possession of the unit.

However, from section 17 of the Real Property Limitations Act:

"Maximum of arrears of rent or interest recoverable

17 (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent. R.S.O. 1990, c. L.15, s. 17 (1).

Exception as to action for redemption

(2) This section does not apply to an action for redemption brought by a mortgagor or a person claiming under the mortgagor. R.S.O. 1990, c. L.15, s. 17 (2)."

https://www.ontario.ca/laws/statute/90l15#BK16

• For filing A2 applications about unauthorized occupants:

60 days after the landlord discovered unauthorized occupancy (RTA ss. 100(2)), otherwise the unauthorized occupant turns into "deemed assignee" (same rent amount, under the same terms of the same tenancy agreement) (RTA ss. 104(4)).

• For filing L5 applications about rent increases above the guideline:

At least 90 days before the landlord intends to take the first rent increase (RTA ss. 126(3)).

• For filing LTB eviction orders with the Court Enforcement Office (to schedule an eviction by the Sheriff):

6 months after the LTB eviction order takes effect (RTA s. 81).

Tenant applications (T applications) and forms:

• For filing T (tenant) applications in general (whether the tenant is still in possession or not):

1 year after the event.

• For filing about an ongoing / recurring issues (T6 about maintenance, T2 about tenant rights):

1 year after the issue was fixed (RTA ss. 29(2), LTB Guideline 5 ("Breach of Maintenance Obligations"), LTB Guideline 6 ("Tenant Rights")).

"When a breach is a single event such as an illegal entry, the limitation period begins on the day the event happened. Where the breach is not a single event but is ongoing or recurring as may be the case with some maintenance obligations or with non-compliance with standards, then the breach occurs over a period of time and the limitation period runs from the date that the repair is completed or the standard is complied with. The landlord's obligation for maintenance is ongoing and continues until the landlord has fulfilled the obligation. In all cases the limitation period is one year."

• For collecting for ongoing / recurrent issues:

1 year for monetary remedies, but the order to repair / fix the issue itself can be for an issue where the disrepair began over a year ago (but rent abatement / other monetary order would be limited to 1 year prior to filing the application, Toronto Community Housing Corp v. Allan Vlahovich, [2010].O.J. No. 1463).

From LTB Guideline 5 ("Breach of Maintenance Obligations"):

"If the application is filed "in time" pursuant to subsection 29(2) and the breach is no longer occurring as of the date of the order, the Board may award a remedy (such as a rent abatement) for the timeframe calculated from one year prior to the application filing date to the date the breach ended . Where the breach is ongoing as of the date of the order, the potential remedy may provide for periods beyond the date of the order to the date that the breach is no longer occurring (Goodman and Pearlman v. Menyhart and Menyhart, [2009] O.J. No. 1602, and Toronto Community Housing Corp v. Allan Vlahovich, [2010].O.J. No. 1463). (Also see the section on REMEDIES THAT MAY BE ORDERED, further on in this Guideline).

The most recent decision that considered the proper application of subsection 29 (2) was that of the Divisional Court in Toronto Community Housing Corp. v. Vlahovich, [2010] O.J. No. 1463. In Vlahovich, the Court stated:

"In light of the one year limitation period in s. 29 (2), the Board can only make a determination that a landlord has breached an obligation under s. 20 (1) during the one year period before the making of the application. Accordingly, the remedy that may be granted may only be granted in relation to breaches during that one year period."

In Vlahovich, the Divisional Court explained that, "properly understood" the earlier decision of the Divisional Court in Goodman v. Menyhart, [2009] O.J. No. 1602, was not inconsistent with the Court's approach in Vlahovich. The Court emphasized that the Divisional Court panel in Goodman v. Menyhart had ordered that an abatement can extend back one year before the application had been made and no further. The Court in Vlahovich stated that in Goodman v. Menyhart, the only issue was whether the limitation period should extend back twelve months from the order of the Board or from the filing of the application. In that case, and, consistent with the reasoning in Vlahovich, the limitation period extended back one year from the filing of the application."

Note:

1.

From LTB Guideline 6 ("Tenant Rights"):

"There is no limitation period in the RTA for T2 applications alleging that landlord breached the obligation to make the tenant's property available in the 72 hour period after the tenant is evicted by the Sheriff."

This essentially results in a 2-year limitation period from the Limitations Act, section 4 ("basic limitation period") for a breach of RTA section 41. See, for example, SOT-72153-16 (Re), 2016 CanLII 88171 (ON LTB), at para 2, <https://canlii.ca/t/gw4r8#par2>.

Limitations Act, section 4:

"Basic limitation period

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4."

2.

In case of an illegal lockout, an LTB order under RTA subsection 31(3) "that the landlord allow the tenant to recover possession of the rental unit and that the landlord refrain from renting the unit to anyone else":

15 days after the order was issued if it is not filed within those 15 days with the sheriff who has territorial jurisdiction where the rental unit is located;

45 days after the order was issued if it is filed within the first 15 days with the sheriff (RTA ss. 31(5)).

• For filing T3 applications about discontinuance or reduction of services of facilities in the rental unit or residential complex:

1 year after the service was discontinued or reduced (RTA ss. 130(5)).

• For filing T4 applications about landlord's failure to comply with (conditions in) the agreement to increase rent above the guideline:

2 years after the date the rent increase took effect (RTA ss. 122(2)).

• For filing T5 applications about bad faith eviction (N12 / N13):

1)

1 year after the former tenant vacated or was evicted (T5 is not available to current tenants) (RTA ss. 57(2)).

2)

2 years after the former tenant vacated or was evicted if the T5 is for failure to afford the tenant right of first refusal under RTA section 53 for N13 for Reason 2 (extensive repairs / renovations) (T5 is not available to current tenants) (RTA ss. 57.1(2))

• For filing a T1 application about rebate of money the landlord owes:

1)

1 year since the amount was collected for void or unlawful rent increases (Reason 1 on a T1 application) (RTA ss. 135(4)), also note that void rent increase would be "deemed not to be void" after 12 consecutive payments unless the tenant files a legal challenge during that time (RTA s. 135.1) and an unlawful rent increase would be "deemed to be lawful unless an application has been made within one year after the date the increase was first charged and the lawfulness of the rent increase is in issue in the application" (RTA ss. 136(2)).

2)

1 year since the amount was collected for illegal fees or charges under RTA section 134 (Reason 2 on a T1 application) (RTA ss. 135(4)).

3)

1 year since the amount was illegally retained for deposits (Reason 3 on a T1 application) (RTA ss. 135(4), Div. Ct. in Dollimore v. Azuria Group Inc., (2001) 152 O.A.C. 57 (DC))

4)

1 year since the amount was illegally retained for interest on Last Month's Rent deposit (Reason 5 on a T1 application) (RTA ss. 135(4), Div. Ct. in 626114 & 626115 Ontario Ltd. v. Tirado, 2005 CanLII 36461 (ON SCDC), <https://canlii.ca/t/1lrk9>)

Etc

• For filing S2 Motions to Set Aside an Ex Parte Eviction Order:

10 days after the eviction order is issued (RTA ss. RTA ss. 77(6))

• For filing Requests to Re-Open an Application based on a mediated agreement or settlement order:

30 days after the order is issued (RTA ss. 78(5)).

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• For filing Requests to Review an Order:

30 days after the order is issued (LTB Guideline 8 ("Review of an Order"))

• For filing appeal to the Divisional Court:

30 days after being given the order (RTA s. 210)

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An interesting LTB ruling on how limitation periods might apply to a T2 application and a T3 application:

TST-79596-16-IN (Re), 2016 CanLII 88770 (ON LTB), <https://canlii.ca/t/gw52r>

"24. I find that the limitation period in subsection 130(5) should be treated differently from the limitation period in subsection 29(2). First, Guideline 6 only deals with the limitation period in subsection 29(2). However, it does say that when a breach is a single event, the limitation period begins on the day the event happened. In this case, the root of the T3 application is single event – the one-time removal of the on-site superintendent. Second, the wording of the limitation period in subsection 130(5) is clear that an application cannot be filed more than one year after the discontinuance of a service. This section seems to address, and render irrelevant, the notion that the unavailability of the discontinued service is ongoing. Therefore, I find that the limitation period in subsection 130(5) clearly bars the addition of the Potential Parties because the Tenant asked to have them added after April 21, 2016 when the limitation period expired."

________________

"T2 Application

16. At the October 20^th Prehearing the Tenant testified that as a result of the removal of the on-site superintendent, the Tenant has experienced and continues to experience multiple disturbances, including difficulties receiving rent receipts, having his rent cheques cashed on unpredictable days and inconsistent garbage collection.

 

17. The Board’s Guideline 6 pertaining to tenants’ rights provides guidance with respect to the application of the limitation period in subsection 29(2) of the Act. The guideline states that when a Landlord’s breach of the Act is a single event, the limitation period begins on the day the event happened. However, where the breach is not a single event but is ongoing or recurring as may be the case with some instances of interference with reasonable enjoyment, then the breach occurs over a period of time and the limitation period runs from the date that behaviour causing the interference with reasonable enjoyment ceases.

 

18. In the present case, the Tenant provided evidence that the interference with his reasonable enjoyment is ongoing and it has not ceased. Therefore, I find that the one-year limitation period in respect of this application has not yet begun to run, let alone expired. Accordingly, I find that the Tenant’s request to amend the T2 Application to add the Potential Parties is not dismissed for being out of time.

 

19. Accordingly the next step in my analysis is to apply Rule 16 of the Board’s Rules of Practice. Rule 16.4 sets out a non-exhaustive list of factors that the Board must consider when determining whether to grant amendment to an application.

 

20. The factors that support granting the amendments are:

 

•         The amendment was requested in good faith and it necessary to ensure that those who were affected by the removal of the on-site superintendent have the opportunity to have their claims heard. Based on the Tenant’s honest and candid testimony at the prehearings, I am satisfied that the Tenant’s request to add the Potential Parties was made in the honest, but mistaken belief that the amendment would be automatic as long as the merits hearing had not begun.

•         Any prejudice the Landlord would suffer by adding the Potential Parties is minimized by the fact that the Tenant is not seeking to change any of the issues in the T2 Application, only to add parties. Therefore, the proposed amendments should not delay, extend or render more complex the Landlord’s preparation for the merits hearing.

•         If the proposed amendments are granted they should not delay the start of the proceedings. Preliminary issues were addressed at the prehearings, which should have the effect of streamlining the hearing. I also mentioned to the Tenant at the prehearings that if the proposed amendments were granted, he would also be expected to organize his evidence so that common issues are presented in a way that minimizes repetition of evidence. At the same time, some delay in the length of the hearing would be inevitable if the Potential Parties were added because each applicant would have to establish their entitlement to a remedy.

 

21. The factors that support denying the amendments are:

 

•         I am not convinced that the amendment was requested as soon as the need for it was known. The Tenant testified that he sought legal advice prior to filing the applications and he was aware of a one-year limitation period at issue. Nevertheless, the Tenant filed the application on the second-last day of that limitation period and only then did he reach out to other tenants in the residential complex and canvas whether they were interested in joining the applications.

•         If the amendments are granted the Landlord will also suffer the obvious prejudice of having to face greater potential liability because there will be more claimants.

 

22. However, I find that the most important and practical factor that must be considered falls under the category of “any other relevant factors”. As already determined, the limitation period for the T2 Application has not yet expired. Therefore, there is nothing in the legislation or the Rules that would stop the Potential Parties from filing their own application(s) if the amendments were denied. Section 183 of the Act requires the Board to adopt the most expeditious manner of determining the questions arising out of a proceeding while ensuring that those who are directly affected by the proceeding have the right to be heard. I find that adding the Potential Parties to the existing T2 Application, which has already gone through a CMH and two prehearings would be in-keeping with the Board’s obligations under section 183.

 

23. Accordingly, the proposed amendments to the T2 Application are granted and the Potential Parties are added as applicants to the application. Therefore, for the remainder of the order, the Tenant and the Potential Parties will be referred to as the “Tenants” in regards to the T2 Application only.

 

 

T3 Application

 

24. I find that the limitation period in subsection 130(5) should be treated differently from the limitation period in subsection 29(2). First, Guideline 6 only deals with the limitation period in subsection 29(2). However, it does say that when a breach is a single event, the limitation period begins on the day the event happened. In this case, the root of the T3 application is single event – the one-time removal of the on-site superintendent. Second, the wording of the limitation period in subsection 130(5) is clear that an application cannot be filed more than one year after the discontinuance of a service. This section seems to address, and render irrelevant, the notion that the unavailability of the discontinued service is ongoing. Therefore, I find that the limitation period in subsection 130(5) clearly bars the addition of the Potential Parties because the Tenant asked to have them added after April 21, 2016 when the limitation period expired.

 

25. At the August 10^th Prehearing, the Landlord’s legal representative argued that the Tenant’s proposed amendments to both the T2 and the T3 Applications should be denied and he cited subsection 21(1) of the Limitations Act, 2002 in support of his position. That provision provides:

 

If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to an existing claim.

 

26. The Landlord’s Legal representative also relied on the decision in Meady v. Greyhound Canada et al (2007, Canlii 16633 ON SC), which interprets the above provision in the Limitations Act, 2002.

 

27. In preparation for the October 20^th Prehearing, I issued interim order TST-73104-16-IN2 on August 16, 2016. In that order, I asked that the parties come to the next prehearing prepared to make submissions about whether the Limitations Act, 2002 applies to proceedings at the Board. Neither party made new arguments with respect to this issue at the October 20^th Prehearing and I am not aware of any court or Board decisions that have dealt with this issue before.

 

28. Based on language found in the Limitations Act, 2002 I am not satisfied that this legislation applies to proceedings at the Board. Subsection 2(1) of the Limitations Act, 2002, is the “application” section and it states: “This Act applies to claims pursued in court proceedings other than..” and is followed by a list of proceedings commenced under different pieces of legislation. However, the term “court proceedings” appears to exclude from that statute’s application proceedings before tribunals like the Board. In addition, the Act does not refer to the Limitations Act, 2002. Although I have found that the Limitations Act, 2002 does not apply to Board proceedings I essentially agree with the wording of subsection 21(1) as it applies to the Tenant’s attempt to add new parties after the limitation period in subsection 130(5) had expired.

 

29. As the decision in Meady v. Greyhound Canada interprets the application of subsection 2(1) of the Limitations Act, 2002 to a court proceeding, I do not find it applicable to the Board’s proceeding or the T3 Application before me. There are too many differences between Meady and the case before me, including significant differences in the length of the applicable limitation periods, the wording of the rules of procedure at the Superior Court of Justice versus the Board’s Rules and the role of costs at both forums (for compensating newly-added parties who have been added improperly). As the parallels between Meady and the case before me are too remote or hard to identify, I find that Meady is not useful for my analysis.

 

30. I see no reason to override the limitation period in subsection 130(5) of the Act. According to that provision, the limitation period in relation to the Tenant’s claim in the T3 Application expired on April 21, 2016. As the Tenant requested that additional tenants be added as applicants to the application after this date, those requests for amendments/additions of parties are out of time. Therefore, the amendments to the T3 Application are denied.

 

31. Pursuant to my discretion under section 198(2) of the Act. The applications are severed. The applications will still be heard together."

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