January 12, 2010

Member Says Service by Registered Mail Not Permitted by the Residential Tenancies Act

I found this decision under “Selected Decisions” section of the Board’s Website.  These decisions were selected by the Board because they:
  • interpret or explain an area of law;
  • provide a clear analysis of a point of law;
  • apply or distinguish decisions of a court of competent jurisdiction, including the Divisional Court;
  • apply an Interpretation Guideline of the Board or provide clear reasons for not applying an Interpretation Guideline; and/or
  • raise new or interesting issues.
 The Selected Decisions are examples of the types of decisions the Board makes but these decisions:
  •  are not binding on Members of the Board who may be considering the same, or similar, issues in a subsequent case and
  • are not intended to reflect the official position of the Board on how to interpret or apply the Residential Tenancies Act, 2006, the Statutory Powers Procedure Act or any other law.
 With this in mind, let's look at  TEL-23178 (2009).  This is what the Member had to say:


“Determinations:
 1.         The Landlord served the Tenant the N4 Notice of Termination as well as the L1 application and the Notice of Hearing by registered mail [emphasis mine]. The N4 Notice of Termination was returned to the Landlord as unclaimed by the Tenant. The L1 application and  Notice of Hearing have not been signed for, by the Tenant, as of the day of the hearing.
 2.         The Tenant was not served the Notice of Termination or the application and Notice of Hearing in a manner approved by the Board [emphasis mine].  In fact the Tenant has never received a copy of the documentation. As per section 191 (2) of the Residential Tenancies Act, 2006 and Rule 5 of the Landlord and Tenant Board and specifically rule 5.1, the Board can accept a method of service other than those listed if it can be proven that the documents came to the attention of the intended party. In this matter the Notice of Termination could not have come to the attention of the Tenant as it was returned to the Landlord.”
I must admit I was startled by the highlighted statement.  After all, I had already blogged about how you had to remember to tack on five days to any notice period if you mailed a notice, as the Act deemed a document given by mail to be given five days after mailing. 

I thought maybe I was missing something.  Did the Act permit service only by regular mail rather than registered mail?  But nope, it’s right there in the Act in black and white. 

How notice or document given
 191.  (1)  A notice or document is sufficiently given to a person other than the Board,
...
 (f) by sending it by mail to the last known address where the person resides or carries on business; ...
 When notice deemed valid
 (2)  A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period.
 Mail
 (3)  A notice or document given by mail shall be deemed to have been given on the fifth day after mailing.
So what’s going on here?  I think the Member simply got it wrong, but recognized there was an issue.  I really think it really comes down to what is meant by the phrase “a notice or document is sufficiently given” in section 191 of the Act.  Does it mean

1.   that notice or document given in accordance with section 191 is valid, whether or not the document or notice came to the actual attention of the party served (an irrebuttable presumption), or


2.  a notice or documents served in accordance with section 191 is presumed to have come to the attention of the party served unless there is evidence to the contrary (a rebuttable presumption).

It seems the Member would have come down on the side option (b).

Normally the onus would be on the person who says they did not get the document to establish non-receipt in the face of a rebuttable presumption. So this causes me to question, are you better off not using registered mail to send documents to your landlord or tenant?  We know from that if you win the Publisher’s Clearing House Sweepstakes, they will show up at my door with a large novelty cheque...they don’t send you a registered letter.  Nothing good generally comes from registered mail.  So can the other party in the dispute avoid service by simply not picking up their registered mail?  I think it would be open to the Board to find (and likely would find) in the appropriate case that a party can’t evade service by simply ignoring registered mail.


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