January 11, 2010

A Questionable Decision by the Landlord and Tenant Board?

In SP and TP v. AS and GS (2009) SWL-23161 the Board found the Eviction Notice alleging persistent late payment of rent was invalid.  It’s not clear whether the Tenants raised the issue or the Board Member raised it on her own. 

Here is what the Board had to say:

The Notice of Termination (form N8) given to the Tenants on January 16, 2009 is defective. On the Notice, the Landlords provided a list of NSF cheques tendered by the
Tenants, and the dates of N4 notices and other notices, letters and e-mails, but the Landlords failed to provide information relevant to the Notice of Termination, specifically
the date the rent was due and the date the rent was paid, for each relevant month. On the Notice, the Landlords also stated that there has been only one month since the Tenants moved in that the rent was paid in full and on time, which conflicted with the Landlords’ own evidence at the hearing. The Landlords also included unnecessary, inflammatory statements on the Notice, specifically: “Every month there are excuses and attitude. No more benefit of the doubt. Enough is enough!” The Notice of Termination is so defective that it is void and cannot form the basis for an eviction order.
 That’s the total decision.  I question whether this decision is good law, however. 


Exactly what about this notice makes it “so defective that it is void and cannot form the basis of an eviction order”?

Is it the failure to set out the date the rent was due and the date the rent was paid?  This is the approach suggested in the instructions provided by the Board for completing the notice.  I agree that such an approach would be the preferred approach. I don’t believe, however, that the failure to set out this detailed information makes the notice ineffective for the purpose it was designed for.  We must keep in mind the purpose of the notice is so that the tenant is aware of the allegations against them and to decide whether to dispute the allegations against them before the Board.  

I wonder why the references in the Eviction Notice to various NSF cheques, notices for non-payment of rent, letters and emails were seen as insufficient to bring this home to the tenants in this case.  Surely tenants are aware when the rent is due and a landlord  need not be set out for the Tenant to know the allegations against them. 

At the same time, if there had been no evidence before the Member as to when the rent is due, the Member could rightfully dismiss the eviction application, independent of whether there was a valid notice, as was done in Resen Holdings Ltd. v. Carmichael (1985), 51 O.R. (2d) 449, 36 R.P.R. 204 (Dist. Ct.).  Keep in mind that the Landlord must given evidence that will support their case. This would include evidence of when the rent was due, and when it was late.


Or was it the fact that the evidence varied from what may have been stated in the eviction notice?  I believe there a difference between the evidence not supporting a finding of persistent late payment of rent, and one where the notice is invalid.  Otherwise, just how much variance will be tolerated by the Board?

Or is it the fact that the Landlord included what the Member saw as inflammatory statements?  I see the Landlord expressing frustration, but I fail to see the statements as inflammatory.  Even if it were so, should that result in the notice being thrown out?  Is it not more appropriate to focus on the allegations rather than the emotions?     

The member seems to suggest all three factors contributed to the notice being invalid.  Whether taken alone or together, the issues don't appear to be significant enough to invalidate the notice of eviction. I can only wonder if there was something more going on than is evident by these short findings.  

What is perhaps not so obvious is the fact that the landlord did not wait until after the termination date in the notice to bring the application.  This was a 60 day notice.  The notice was given on January 16, 2009, and the Board hearing was February 10, 2009.  Section 71 of the Residential Tenancies Act permits a landlord to bring the application for eviction immediately after the notice is given where the notice is based on the allegation of persistent late payment of rent (among other allegations).  However, the eviction order cannot be enforced until after the termination date in the notice. 

Brining the application immediately allows the landlord to get the hearing (and hopefully any request for review) out of the way before the termination date arrives.  But keep in mind, if you do bring the application for eviction before the termination date in the notice, you may be trading off the ability to claim your application fee of $170.00.  If the application is filed before the termination date, the Board will likely deny you the costs of your application under their Costs Guideline.   Had the landlord waited in this case, they would have likely had to endure a significant number of additional months where they risked late (or no) rental payment.

LESSONS LEARNED

  • Read the instructions that accompany a notice of termination.  It will provide you a useful guide in completing the notice of eviction. 
  • When evicting for persistent late payment of rent, avoid general statements and personal commentary.  Be as factual as possible.  Provide a complete rent history for the period in question, which should include the date the rent is due, the amount due, and the date payments made. In another decision TEL-19265 the Board also found that a notice was void where a list of late payments had not been set out in the notice, saying:

    The second notice dealt with the issue of persistently late payments. The Divisional Courts of the province of Ontario have found that a notice is void if it lacks details such as dates and times. As this notice contained no dates of infractions of late payment, I have dismissed the portion of the application that dealt with this notice.

  • Consider whether or not to bring the application immediately after you serve the eviction notice.  If you believe the tenant will move, then you may wish to wait and see.  If you believe that the tenant will dispute the application, you may wish to bring the application sooner.  

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