Can a landlord obtain damages from a tenant for damage caused to the roof of a residential unit where the tenant is no longer paying rent?

23. In Merlihan v. Hunter, [2009] O.J. No. (Sm. Cl. Ct.), at para. 11-13, I held that the landlord could have and ought to have exercised the statutory right of inspection, which would have permitted discovery of a damage issue prior to the tenant’s departure. There was an existing application for early termination for arrears of rent and the landlord could have asked for compensation for the damage in that same application. Therefore the board’s exclusive jurisdiction under s. 168(2) of the Residential Tenancies Act, 2006 was triggered and the court’s jurisdiction over that issue was ousted.

24. On the other hand, in Mercier v. Hawco, [2014] O.J. No. 56 (Sm. Cl. Ct.), I found that the court had jurisdiction over a claim for damage to the premises which occurred after the tenant vacated the premises. The tenant had left pets in the unit for 24 hours after moving out, during which time they caused the damage.

25. The case at bar is similar to Merlihan v. Hunter, supra, in that the damage could have been discovered earlier through an inspection of the premises and could in law have been put to the board, which dealt with an application between these parties. If it had been discovered earlier, the damage could have been made part of the application as issued, or given its discovery after the application was launched, could have been made part of the application by amendment pursuant to ss. 200(1) or 201(1)(f) of the Act.