Ontario Landlord Court Options Beyond the LTB: Small Claims, Superior Court, and Provincial Offenses

Introduction

Welcome to another episode here of CRESI’s Ontario Landlord Series. Today we’re going to get into litigation with our friend and colleague, Gibrian Malicki-Sanchez from Malicki Sanchez Law. He’s a lawyer who specializes in helping landlords through their tenant issues at all different levels of the court system — a litigation expert and a friend of mine.

Let’s bring him in. Gibrian, how are you today? Good, Kevin, it’s great to be back on your podcast.

Thanks for having me here to discuss this topic. For landlords with tenant issues, if it’s not something that’s going to be handled at the board, what are the different levels of courts and situations that pertain to each level if you’re in a litigation situation with a tenant?

When the LTB Won’t Help You

That’s a good question, Kevin. Yes, landlords can find themselves in situations where the Landlord and Tenant Board won’t take on their matter, and there are a few other courts that can deal with that. Let me set the table here to explain how a landlord ends up in that situation, where they do have tenants but the Landlord and Tenant Board won’t hear their case.

Everything is governed by the Residential Tenancies Act for residential tenancies in Ontario. That’s section 183(2) of the Act — it says the board has exclusive jurisdiction to determine all applications under the Act with respect to all matters in which jurisdiction is conferred on it by the Act. So what we can understand from that is that the Landlord and Tenant Board only handles matters that fall within the Residential Tenancies Act.

If your issue isn’t covered by the Act, the Landlord and Tenant Board can’t help, even if you’re clearly the landlord. Let me tell you about a few of those exemptions, set out in sections 5 to 7 of the Act. This isn’t a comprehensive list, just a few examples.

You might be a landlord with a short-term rental property for the vacationing public — someone who owns an Airbnb. You could own student residences; with a few limited exceptions, those aren’t covered by the Act. You can be the owner of a mixed-use commercial-residential property where the predominant use is commercial.

And the well-known one: you can be the owner of a property with shared accommodation, where you share a bathroom or a kitchen with the occupants. Those are exempt from the Act. Now, even though the Landlord and Tenant Board won’t hear your case in those situations, the common issues of non-payment of rent, property damage, or over-holding tenants still come up. That’s where these other courts come in.

You should understand that small claims court can deal with monetary issues — non-payment of rent and damages. Right now the jurisdictional limit for that is $35,000. That limit is increasing to $50,000 in October 2025.

Small Claims Court Updates ($50K Limit!)

You mentioned that to me the other day, that the limit was going up. That’ll help — that’s an extra $15,000 for people to go after.

If it goes higher than that amount, there’s the Superior Court of Justice. You can claim any amount there. The Superior Court of Justice can also deal with claims the Landlord and Tenant Board would typically make orders for, like eviction-type orders to get an over-holding occupant out.

That’s really helpful to know. There was an amendment to the Residential Tenancies Act back in September 2021 that allows landlords to bring claims against tenants who vacated the property for rent arrears or damages within one year of them moving out.

Now, in small claims court, there’s a two-year limitation period for bringing a claim. So some people might wonder: can a landlord sue a tenant in small claims court after the one-year window under the Residential Tenancies Act has lapsed, since it no longer falls under the Act? The answer is no — because it’s still under the exclusive jurisdiction of the Residential Tenancies Act, it’s still bound by that one-year limitation period.

That leads to another question — what if there are issues that do fall under the Residential Tenancies Act? Can you still bring claims in small claims court if the Landlord and Tenant Board isn’t going to give you the remedy you want? It’s possible. In those situations, the court applies something called the Essential Character Test to determine the essential character of the issue.

The leading case on that, from 2015, is called Efrach v. Cherishome. If anybody ever wants to cite that in small claims court, they can rely on that test.

Some of the issues that might bring you into small claims court, or even Superior Court, are personal injury claims, like slip-and-fall claims, or personal injury arising from assault, or claims such as defamation. There could also be other claims related to the tenancy itself, like separate contracts. Let’s say there’s a lease agreement —

obviously the tenant can occupy the property, but what if there’s a separate contract where the landlord is paying the tenant for services, such as landscaping or snow removal for the entire complex? Is that contract tied to the lease itself, or is it a completely separate contract?

Separate Contracts vs. Lease Agreements

It could be a separate contract. What you can do is bring an application to the Landlord and Tenant Board if you’re not sure, and see if they determine whether they have jurisdiction over it. If they say they don’t have jurisdiction, then you can bring it to small claims court.

It’s not what we call res judicata — that’s a case that’s already been tried on its merits. It would just be determined that the Landlord and Tenant Board doesn’t have jurisdiction, so you can bring it to small claims court or Superior Court instead.

I’ve dealt with a case before where I had proceedings in both the Landlord and Tenant Board and the Superior Court. It’s a situation that isn’t too common in Ontario but is very common in the US, and should be more popular here — a rent-to-own agreement, where you agree to rent the property to a tenant, and as long as they make the rental payments and pay a bit of a premium on top as a deposit, they have the right to buy the property.

If that contract goes south — let’s say you want to evict the tenant for whatever reason, like personal use — that particular issue will go through the Landlord and Tenant Board. But if the tenant wants to sue for breach of contract, that’s dealt with in the Superior Court.

Rent-to-Own Strategy Breakdown

What are landlords going after for breach of contract? From what I understand about rent-to-own, and what I’ve seen talking to people in Ontario, when a tenant doesn’t make good on their agreement, the landlord gets to keep the asset and all deposits, and the tenant is evicted and has to move on, losing everything they’ve put in. Sadly, some of the people I’ve spoken to about this were more inclined to have it happen that way than to have the tenant actually make good and take on the property — investors found it a lucrative investment because they were able to recoup the deposits, then re-rent the same investment property on another rent-to-own deal after collecting another deposit.

It didn’t always seem great for the tenant, from what I’ve heard — it can be good or bad for both sides depending on the situation. Yeah, I love talking about the strategy for these — let me get into it a bit more, because I’m passionate about residential tenancies in Ontario.

It’s good for tenants because it lets them get into a property and start building equity, living in a home they want to live in now, rather than waiting until they can get mortgage approval. Say you have a growing family and think, “I could afford a house with two more bedrooms in five to ten years, but I can’t wait — I need it now.” You don’t want to just rent and lose all your equity — you want to build equity and buy it later. So they get into that arrangement.

And it’s good for landlords for the reasons you just mentioned — it’s added security. One missed payment is a breach of contract, and the tenant forfeits their deposits. They could potentially be evicted through the Landlord and Tenant Board, but most importantly, it’s the financial damages the landlord can claim in Superior Court. Typically, you’d want to deal with the eviction aspect in the Landlord and Tenant Board,

because that’s where they’ll find they have exclusive jurisdiction over the tenancy itself, but the damages will be dealt with in Superior Court or small claims court, depending on the amount. With rent-to-own agreements, that amount can often get higher than $35,000 or $50,000.

Why Rent-to-Own Works for Both Parties

You’re normally getting a more qualified tenant, too, because they’re looking for something long-term — something their family is going to grow into — and they’re more committed, because they have those deposits on the line. It can work well for both sides, as long as it’s done properly.

And they tend to maintain the property better, because they’re taking ownership of it. A lot of benefits — very popular in the US, and it should be more popular here in Ontario. I want to touch on one more thing here — a different type of court you can use when landlord-tenant issues arise, and that’s using the offenses under the Residential Tenancies Act.

Provincial Offenses Under the RTA

There are a few limited examples of tenant offenses, set out in section 233. For example, if a tenant changes the locks without permission and doesn’t give a key to the landlord, or if they’re harassing or obstructing the landlord from seeking legal relief — that’s pretty broad, but it includes things like a landlord serving proper notice of entry to do a repair, and the tenant denying them. Now the landlord can’t seek their legal remedy of getting in there to fix the issue. The tenant can be exposed to a finding that they’ve committed a provincial offense, which carries a fine of up to $50,000 for individuals.

That’s set out in section 238 of the Act. Where do you go for that? The Landlord and Tenant Board isn’t the one who makes a finding of guilt and applies these fines against tenants.

What a landlord has to do is file a complaint with the Rental Housing Enforcement Unit. With our technology these days, you can Google “Rental Housing Enforcement Unit,” and they have a step-by-step guide on how to do it and where to contact them. Then the Provincial Offenses Court will take on the case and prosecute the person under the Provincial Offenses Act. It’s a good tool to keep in mind, because a lot of times landlords will file an application because a tenant is interfering with the landlord’s rights or responsibilities, or harassing them.

This is just another way of dealing with that situation. But keep in mind, if you’re trying to negotiate a settlement with a tenant, and try to get them to pay some sort of compensation or to stop what they’re doing, you cannot threaten them with criminal or provincial-offense proceedings. You can’t tell them that if they agree to your offer, you’re not going to file the offense. It’s something you’ll have to decide to use on your own initiative, separately.

Choosing the Right Legal Path

Every situation is different, and this option might be better than that one depending on the specifics. It’s about understanding what options are available so you can choose which path to go down and hopefully recoup some money from whatever’s gone on in your property, in your situation. So some takeaways, Kevin: if you’re a landlord, get informed about whether or not the Landlord and Tenant Board will cover your issue.

Or if you’re in a particular situation, know whether it does — that way you can streamline your remedy and go to the right venue at the right time. That will save you time and give you a better chance of success at getting the remedy you want. Know that small claims court and Superior Court exist, but those are reserved for very specific cases.

If you’re in doubt, it’s best to consult a lawyer who has experience with landlord-tenant issues at small claims court or Superior Court. Otherwise, you risk your case being thrown out because small claims court lacks jurisdiction.

Key Takeaways & Final Thoughts

I know that was a lot of information about what levels of jurisdiction we can go through and what different court systems we might need. If anything ever comes up and we have questions, we can always reach out to Gibrian here at Malicki Sanchez Law. You can always refer to the RTA to see what’s covered and what’s excluded. Any last thoughts to wrap up the day?

I just hope I brought some light to some unknown areas that landlords might not have been familiar with, and that there’s typically always an option to deal with your issue in a legal and productive way. Thank you again so much for having me on your podcast. Appreciate it.

Thanks so much, everybody. We’ll talk to you soon. Bye for now. Please remember, this podcast is for informational purposes only.

The advice shared may not apply to your unique situation. Always seek personalized advice from a qualified professional before making any investment decisions. Hey everybody, thanks so much for joining us this week.

I hope you enjoyed the episode. If you’re finding it informative and useful, make sure to like, subscribe, and share with a friend so that we can keep getting the information out there to Ontario landlords, and keep on joining us. We’ll see you next time.