[13] The appellants determined that the respondent had leased the premises to another party in December of 2017. Their application to the LTB was commenced in June of 2018, several months after the one-year anniversary of their having vacated the premises. Their position is that the cause of action against the respondent was not discovered by them until December of 2017 and the one-year limitation provided by the RTA would only begin to run at that time. In support of their position they rely on sections 4 and 5 of the Limitations Act, 2002, S.O. 2002, c. 24.

[14] I agree with the LTB that the application was not brought within the applicable limitation period.
[15] The appellants concede that their application was brought under s. 57(1)(b) of the RTA. Section 57 (2) of the RTA provides that no application may be made under s. 57(1) more than one year after the former tenant vacated the rental unit.

[16] Section 4 of the Limitations Act, 2002 provides generally that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 5 of that Act provides, among other things, that a claim is discovered on the day which the person making the claim knew or ought reasonably to have known that the damage had occurred.

[17] Clearly, the commencement of the limitation period in s. 57(2) of the RTA conflicts with the commencement of the limitation period in s. 4 and s. 5 of the Limitations Act, 2002.

[18] Section 3(4) of the RTA provides that if a provision of the RTA conflicts with the provision of another Act, the RTA applies. It follows that s. 57(2) of the RTA prevails over s. 4 and s. 5 of the Limitations Act, 2002.

[19] I am also not persuaded that the common law principle of discoverability has any application when considering s. 57 of the RTA.
[20] At para. 37 of Peixeiro v. Haberman 1997 CanLII 325 (SCC), [1997] S.C.J. No. 31 the Supreme Court of Canada held that the discoverability rule is an interpretative tool for the construing of limitations statutes and ought to be considered each time a limitations provision is in issue. The court adopted the following passage from Fehr v. Jacob (1993) 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):

…When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed.

[21] Section 57(2) sets the time from which the clock runs from a precise event, namely, the date the tenant vacates the rental unit. The starting of the clock is in no way dependent upon the state of the tenant’s knowledge. It follows that the discoverability rule cannot be used as proposed by the appellants to extend the one-year period prescribed by the legislature.