Legal Memo

SUBJECT: Jurisdiction of LTB to award damages for pain and suffering and punitive damages.

As per your instructions I researched on the question and have the following findings to offer:

Brief Answer: The LTB has jurisdiction to award damages for pain and suffering; however, it

does not have jurisdiction to award punitive damages.

The Board has jurisdiction to award damages for pain and suffering under section 30(1)9 and

section 31(1)(f) of RTA. Section 174 of the Act further supports the proposition that the Board

has the residual power under subsection 30(1)9 of the Act to award general damages for a breach

of a landlord's obligations under the Act or a lease, including damages for pain and suffering.

The power of Board to award such compensation for breach of lease, was established in case of

Mejia v. Cargini1. In this case, the Ontario Superior Court awarded $4,000.00 for damages

arising from the breach of the tenant's contractual right to quiet enjoyment, in addition to the

abatement of rent of $900.00 ordered by the tribunal. However, the court in this case awarded

such damages based on section 35 of Tenant Protection Act 2 (Now Repealed), which reads

similar to section 31(1) of Residential Tenancies Act.

This decision was further confirmed by Ontario Superior Court in case of Taft v. Whitesands

Apartments3. In the present case, the landlord's agents had engaged in harassment of the

appellant Ms. Taft by intimidating her and had substantially interfered with her reasonable

enjoyment of her unit. The appellants appealed on the grounds that the Board erred in law in

awarding the abatement and that it erred in law with respect to the test for aggravated damages.

1
2007 CanLII 2801
2
Tenant Protection Act, 1997, SO 1997, c 24.
3
[2009] OJ No 3198.
While determining the test for aggravated damages, the court relied on the case of Fidler v. Sun

Life Assurance Co. of Canada4, where the Supreme Court of Canada explained that there is a

difference between true aggravated damages and damages for mental distress arising out of a

breach of contract. Usually, true aggravated damages arise from aggravating circumstances, and

they rest on a separate cause of action, such as a tort, rather than the breach of contract. In

contrast, damages for mental distress for breach of contract can be awarded only if it was in the

reasonable contemplation of the parties, at the time of entering into a contract, that one of the

objects of the agreement was to secure a psychological benefit. If so, damages for mental distress

on breach of the contract would reasonably be in the parties' contemplation.

Further in case of File No. TST-015795, the Board determined that the amount for pain and

sufferings the Tenant seeks is reasonable as it is arising from the Landlord's failure to repair and

maintain the rental unit and comply with applicable standards.

In regard to the punitive damages, the Board does not have jurisdiction to award such damages.

This was determined by Superior Court of Justice in case of Campbell v. Maytown Inc.6, stating

that the Tribunal has jurisdiction to order the payment of an amount of money up to $10,000.00

for special or compensatory damages but has no jurisdiction to award exemplary or punitive

damages.

In order to enforce punitive damages, the only feasible option is to approach Superior Court of

Justice, small claims division. In case of Sigrist v. McLean7, Ontario Superior Court of Justice

determined that Punitive or exemplary damages will be awarded against a landlord where its

exercise of distress was oppressive and there have been aggravating circumstances. The court
4
[2006] 2 SCR 3 at para 52.
5
2009 LNONLTB 5.
6
2005 CanLII 49966.
7
2011 ONSC 7114
found the defendant’s conduct regarding the eviction and distraint to be not only unlawful, but

also unreasonable, excessive, and reprehensible and awarded punitive damages of $50,000.