January 11, 2010

Ball v. Metro Capital Corporation - the Downfall of Many an Eviction Notice

I wanted to discuss the Divisional Court decision in Ball v. Metro Capital Property [2002] O.J. No. 5931 (Divisional Court).  This is probably one of the most referred to, and in my opinion, most often misapplied decisions by the Landlord and Tenant Board.  For those who are unfamiliar with the decision making hierarchy, Board Members decisions may be either:

  • appealed to the Divisional Court on a question of law, or
  • reviewed by the Board for errors of fact or law. 

Decisions made by the Divisional Court are binding on Members of the Board, who are required to follow the decision in making future decisions. 

In the Ball case, the landlord served the tenant with an eviction notice (Form N5) alleging she was interfering with the enjoyment of the landlord. Under the portion of the form entitled “Details About the Reasons for this Notice", the landlord stated:
 "The tenant has seriously interfered with the reasonable enjoyment of the premises by the landlord by harassing building staff and office employees to the point of inhibiting them from performing their daily duties."
The landlord did not provide any further particulars of these allegations.
The Court found that the Notice failed to meet the requirements of the Act, and dismissed the Landlord’s eviction application.  In reviewing the sufficiency of the details in a Form N5, the Court said there were several reasons for requiring the landlord to provide the reasons and details.
The tenant needs to know the specific allegations against her in order:
  • to be in a position to know the case that must be met;
  • to decide whether to dispute the allegations made against her before the Tribunal (now the Board); or
  • to consider whether to stop the conduct or activity or correct the omission within seven days and thereby void the notice.
In the circumstances of a case where a landlord accuses a tenant of "harassing its employees", it is particularly important that the notice clearly sets out sufficient details as the tenant and ultimately the Board may need to distinguish between whether the actions complained of constitute "harassment" or whether they are actions of a "rightfully assertive tenant".
The Court went on to point out that in this case, in addition to being an eviction notice, it also acted as a "notice to the tenant to comply". As the tenant has the option "to  comply", particulars of the allegations are essential to make the notice meaningful.
This was followed by the following statement, which is often referred to by Members of the Landlord and Tenant Board:
Particulars should include, dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant.
At the hearing it is simply too late to provide the missing particulars. 
Essentially, the real question is does the particulars provided in the notice sufficient information to the tenant so that they know the case being alleged against them.  A notice with essentially identical wording was found to be valid in Kuzyk v. SK Properties [2001] O.J. No. 5260 (Div. Ct.).  In Kuzyk, the Court said that:
“given the long history between this particular landlord and tenant, and the tenant’s familiarity with the issues, the Notice was sufficient to satisfy the requirements of the legislation at this stage.”
  1. Provide as much detail as possible in your notices of termination or risk having the eviction notice thrown out. 

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