Consent Termination (N11) Liability

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	1982
Page Categories:	[Personal Use Application (LTB)]
Citation:	Consent Termination (N11) Liability, CLNP 1982, <>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2022/08/29

Need Legal Help?
Call (888) 655-1076

Join our ranks and become a Ninja Initiate today

Residential Tenancies Act, 2006, S.O. 2006, c. 17

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

...

(3) A notice of termination need not be given if a landlord and a tenant have agreed to terminate a tenancy. 2006, c. 17, s. 37 (3).

...

39 A landlord shall not recover possession of a rental unit subject to a tenancy unless,

(a) the tenant has vacated or abandoned the unit; or

(b) an order of the Board evicting the tenant has authorized the possession. 2006, c. 17, s. 39.

...

77 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if,

(a) the landlord and tenant have entered into an agreement to terminate the tenancy; or

(b) the tenant has given the landlord notice of termination of the tenancy. 2006, c. 17, s. 77 (1).

...

(4) On receipt of the application, the Board may make an order terminating the tenancy and evicting the tenant. 2006, c. 17, s. 77 (4)

...

(6) The respondent may make a motion to the Board, on notice to the applicant, to have the order under subsection (4) set aside within 10 days after the order is issued. 2006, c. 17, s. 77 (6).

...

(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (4), if,

(i) the landlord and tenant did not enter into an agreement to terminate the tenancy, and

(ii) the tenant did not give the landlord notice of termination of the tenancy;

(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or

(c) make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order. 2006, c. 17, s. 77 (8).

TET-59931-15-RV (Re), 2016 CanLII 38298 (ON LTB)

80. This conclusion is supported by the content of the notices of termination that were served on the Tenant after this incident. On May 5, 2015, the Landlords issued a notice of termination alleging the Tenant’s behaviour was substantially interfering with a lawful right or privilege of the Landlords. The details say the Landlords want to remedy the illegal rooming house situation “but your refusal to vacate the unit interferes with my lawful rights”. Clearly this was not true. The Tenant had every right to remain in the unit until the Landlords used the process available to evict him; his refusal to vacate was not an interference with the Landlords’ rights. The same phrasing appears on a notice issued on June 5, 2015.

PE Real Estate v. Kelly 2021 ONSC 4661, RVGP 259 (ONSCDC)

[5] ... The initial closing date for the sale transaction was scheduled on August 3. 2018.

[6] The purchaser's stated intention was to reside at the subject premises on acquisition of the property. Accordingly, the landlord commenced the process prescribed pursuant to s. 49(1) of the RTA, to obtain possession of the leased premises on behalf of the purchaser. On May 31, 2019, the landlord served the tenants with a written notice of termination for the purchaser's own use effective July 31, 2018. This date was three days before the closure of the sale agreement.

[...]

[10] As a result of the tenants' decision not to vacate, it was necessary for the landlord to obtain a hearing date from the LTB by filing an application to end the tenancy and evict the tenants. While the landlord could have made such an application on or about May 31, 2018, or at any time thereafter, no such application was filed until July 31, 2018.

[11] As a result of the fact that the appelants were not going to be vacating the subject property by the original closing date, the respondent could not provide the purchaser wth vacant possession on August 3, 2018. Accordingly, the respondent negotiated an extension of the closign date with the purchaser on new terms. Those terms included extending the closing date to September 4, 2018. As well, the landlord incurred a negotiated penalty of $4,000, plus additional costs such as legal fees, property taxes, and other related expenses.

[...]

[17] The thrust of the landlord's claim was two-fold. Firstly, the landlord sought damages because the tenants' action of not vacating the premises before the closing date of the sale on August 3, 2018 caused the landlord to breach the contract of sale with the purchaser. As a result, the landlord suffered damages in several enumerated respects.

[18] Secondly, the landlord asserted that while the RTA provided the tenants with the right to challenge the termination of the lease, the Act itself only deals with issues relating thereto, but does not have jurisdiction over the type of damages the landlord suffered vis a vis the requirement to extend the closing date with the purchaser.

[...]

[31] I find that the deputy judge erred in law in concluding the landlord had a cause of action.

[32] The RTA sets out a complete code dealing with the termination of a tenancy. Section 49(1) of the RTA provides for an eviction mechanism when a landlord is required to terminate a tenancy as a result of a sale to a purchaser who, in good faith, requires possession of the leased property for their own occupation.

[33] It was an error to attribute responsibility (and by extension legal liability) to the tenants as a result of the landlord having to extend the closing date of the transaction for several reasons.

[34] The agreement of purchase and sale was made between the landlord and the purchaser. In no way did that agreement create any legal obligation on the tenant.

[35] Only the landlord could trigger a hearing before the LTB to effect an eviction.

[36] A tenant with a notice to vacate has the right to either vacate in accordance with the notice or challenge the eviction. If a tenant does not vacate (like in this case), the landlord has a statutory right to make an application for an eviction order under s. 43(1) and s. 69(1) of the RTA. Once a notice is given, an application can be made by a landlord to the LTB at any time for an eviction hearing.

[37] In this case, the landlord could have made such an application at any time after May 31, 2018. However, the landlord made the application on July 31, 2018.

[38] The powers of the LTB are extensive and are prescribed in s. 83 of the RTA. They include the power to grant an eviction, delay, or postpone same: see s. 83(1)(a)&(b). The LTB can also make an order for arrears.

[39] I have concluded that the deputy judge made a number of palpable and overriding errors in her interpretation of the RTA and her conclusion that the tenants were liable for failing to give the landlord sufficient notice of the intention to challenge the May 31, 2019 eviction notice.

[40] To reiterate, the RTA creates no obligation on tenants to provide notice of intention to challenge the eviction notice. Notwithstanding that, the deputy judge determined that if the tenants were having issues, they "should have provided that information to the landlord ahead of time; rather than the day before the notice was to take effect." The deputy judge imposed a notice obligation on the tenants when no such obligation is required in the RTA. That is, she erred in attributing "fault" or legal "responsibility" to the tenants in waiting until just before the termination date set out in the notice to indicate they were not vacating. The tenants were under no obligation pursuant to the RTA to indicate their intention not to vacate by any specific date, or during any specific time period. In reviewing the transcript, it is evident that the deputy judge did not fully appreciate that the obligation to take the necessary steps to evict pursuant to the RTA rests solely with the landlord.

[...]

[41] The deputy judge erroneously concluded that, as part of the statutory process for eviction, the tenants were obligated to give notice of their intention to challenge the eviction notice at an earlier (unspecified) date. However, the RTA does not prescribe a timeline or deadline by which a tenant must give notice of an intention to challenge an eviction notice. It was an error to conclude there was any timeline or deadline, or that there was a shared legal responsibility in that respect.

[42] Pursuant to s. 71 of the RTA, a landlord can make application to the LTB immediately upon giving notice of eviction under s. 69 of the RTA. Given this provision, it was an error in law for the deputy judge to conclude that the tenants were in any way required to give notice - reasonable or otherwise. The landlord had control of the process by law and failed to take steps in a timely manner to appear before the LTB. [...]

[43] The deputy judge erred in interpreting the Act in a manner that ignored, or otherwise disregarded, the statutory and unambiguous rights of the tenants to challenge the eviction notice by not vacating the premises. Section 43 of the RTA provides a tenant who receives a notice of termination the right to refuse to vacate the premises until there is an order by the LTB terminating the tenancy and evicting the tenant. By her ruling, the deputy judge shifted the responsibility from the landlord to give notice of eviction and proceed to the LTB in a timely manner to a joint responsibility that includes an obligation for tenants to state their intention. This is contrary to the provision of s. 43 of the RTA.

[44] Section 37(1) of the RTA provides that a tenancy may be terminated only in accordance with the Act.

[45] Pursuant to the order of the LTB dated August 20, 2018, the tenancy between the parties did not legally terminate until August 26, 2018.

[46] It was patently unreasonable for the deputy judge to hold the tenants liable for not vacating the premises during the term of the tenancy.

[47] It was an error to hold the tenants liable to the landlord with respect to its dealings with a third party without a finding that the tenants violated the RTA in any manner.

[48] The deputy judge found that the tenants "knew or ought to have known that the landlord required vacant possession." That phrasing denotes that the tenants had some type of legal obligation to the landlord regarding his dealings with the purchaser. No such duty existed in contract or tort. In the context of the statutory scheme for evictions of a tenant in the event of a bona fide sale to a third-party purchaser intending to use the premises, it was an error in law to conclude that the tenants' failure to act - to either notify earlier or vacate on or before July 31, 2018 - was actionable.

[49] The landlord's damages were not caused by the tenants' refusal to vacate the premises - an exercise of their statutory right to challenge the eviction notice. Rather, it was the failure of the landlord to take timely steps to ensure that the LTB hearing was conducted before the termination date (and by extension, the closing date). That caused the landlord to have to renegotiate the agreement of purchase and sale.

[...]

[58] The deputy judge erred in not concluding that the minutes of settlement resolved all issues arising out of the tenancy. It was an overriding and palpable error to find that a cause of action existed outside the regime of the RTA.

[59] The agreement of purchase and sale was between the landlord and a third party. The tenants were in no way a party (legally or beneficially) to that transaction.

[60] But for the application to the LTB, there could be no issue for the landlord being unable to provide the purchaser with vacant possession on August 4, 2018.

[...]

[64] The RTA regulations and the LTB rules prescribe a complete code governing when a tenant may be liable. The listing of those conditions is limiting.

[65] There is nothing in the RTA addressing "forced delays in selling the property." The failure to include that consideration in the RTA does not mean that, by default, a common law entitlement to make such a claim exists.

[66] Furthermore, and, in any event, there can be no common law claim for such damages on the evidence of this case.

[67] The deputy judge refers to the date of notice which, in her view, was an actionable delay caused by the tenants' exercise of their statutory right to challenge the eviction notice. All of that is grounded in an interpretation of the wording of the scheme and the provisions available pursuant to the RTA that allow a landlord to evict a tenant for a purchaser of the leased premises. It cannot be both ways. If the claim is grounded in the Act, then the minutes of settlement and resultant LTB order are a complete resolution of all issues.

[68] Alternatively, if the landlord is correct and the board cannot rule on "damages" for forced delays in selling the property, then the deputy judge committed different errors in law. That is, she grounded a claim for damages in either a non-referenced statute, or a common law duty of care or contract not covered by the RTA. In either way, she committed a reversible error.

[...]

[71] I reject the landlord's submission that the failure of the tenants to raise the issue of the landlords' subsequently filed claim for damages before the LTB provides a basis for its claim. No party can be required to raise a jurisdictional issue in anticipation of a claim in a different legal jurisdiction that has not even been contemplated or filed.

[72] In any event, such a "failure" cannot legally confer jurisdiction on the Small Claims Court judge to award damages at common law when no such jurisdiction exists."

Pinto v. Regan and White v. Regan, 2021 ONSC 5502 (CanLII)

[26] On a motion to set aside an eviction Order under s. 77(6), the moving party is almost always the tenant. For that reason, the determination under s. 77(8)(b) of whether it would not be unfair to set aside the Order is normally focused on the fairness to the respondent landlord. As the moving party, the tenant would logically take the position that it would be fair for the Board to make the requested order, having regard to all the circumstances.

[27] Section 77(8)(b) does not specify which party bears the onus to prove the fairness or unfairness on a motion to set aside an eviction Order. Nor does it provide that either party is to satisfy the Board that the Order to set aside an Order must not be made if making that Order would not be fair, as that would put the burden on the respondent in either case. By using the double negative, the legislature placed the onus on the tenant to satisfy the Board that, having regard to all the circumstances, it would not be unfair to make the order requested.

[28] The Member had a positive duty under s. 77(8)(b) to grant the Order on each motion if it was satisfied it would not be unfair to make that order. In order to determine whether making that Order would not be unfair, the Board was required to make its order “having regard to all the circumstances”. The broad language to consider “all the circumstances” I take to mean the factual matrix that provides the context in which the dispute between the parties arose in its widest sense. This requirement reinforces the remedial nature of the RTA and its purpose to protect tenants’ rights: Musse, at paras. 53 and 58; Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1, at para. 19.

[29] If the Member made a decision on a motion under s. 77(6) without regard to all the circumstances, or by ignoring items of evidence the law required him to assess when he made findings of fact and reached conclusions, there was an error of law made: Canada v. Southam Inc., at para. 41. If the appellants can show that the Member incorrectly identified or interpreted the legal standard, failed to apply the proper test or ignored evidence he was bound to consider, he made an error of law: Yatar, at para. 28. Similarly, if the Member applied an incorrect standard than that prescribed by statute in the performance of his statutory duty, the result is an error of law: Musse, at para. 48.

...

[38] The facts on each appeal suggest that the respondent’s intention to obtain vacant possession of each unit on a permanent basis without having to give notice to each appellant under s. 50 was behind each transaction. The real substance of those transactions was not considered by the Member on either motion. Nor did the Member consider if the respondent was acting in good faith when he interacted with each appellant to obtain their signatures on the N11.

[39] The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, established the organizing principle of good faith applicable to all contracts. This principle requires the performance of contractual duties and obligations honestly, not capriciously or arbitrarily, and with regard to the legitimate contractual interests of the other party: see Bhasin, at paras. 63 and 65. The relationship between a tenant and a landlord is contractual in nature and requires that they discharge the obligations they owe to one another in good faith. This duty of good faith includes how the parties conducted themselves toward each other at the end of that relationship.

[40] Section 202 of the RTA imposed a statutory duty on the Member to determine questions of fact and to apply governing principles of law to ascertain the real substance of the transactions and activities regarding the rental units at issue, and the good faith of the parties to the N11. The Member did not consider all the evidence to determine the element of good faith on the part of the respondent other than making a passing reference in the Reasons. The Member did not take the totality of the evidence into account when he applied the substantive law. This amounted to an error of law.

Rabczak v. Dunford, 2020 ONSC 3031 (CanLII)

[12] Under ss. 77(1) to (4) of the Residential Tenancies Act, 2006, a landlord may apply to the Landlord and Tenant Board for an eviction order without notice to the tenant where the tenant has agreed in writing to leave. The application may be made before the agreed upon final date of the tenancy. But the eviction order cannot be effective before that date.

[13] A tenant who receives an eviction order under s. 77 is entitled to request an order to set aside the eviction order. Under s. 77(8)(b), after holding a hearing concerning the tenant’s request, the board “shall make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so.” [Emphasis added.]

[14] That is, even if the tenant has agreed in writing to leave, the board is required to refuse an eviction order where it would not be unfair to do so in all the circumstances. The Legislature has granted the board a broad, fact-based discretion to apply to assess the fairness of the parties’ situation.

[15] Section 83(1) of the statute also provides a similarly worded discretion to the board based on fairness in the circumstances that applies despite anything else in the statute to the contrary. Moreover s.83(2) of the statute positively prohibits the board from granting an eviction order “unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1)”.

Smith v. UndercoverWear Ltd., 1993 CanLII 5587 (ON SC)

[26] UndercoverWear submits that Ms Smith interfered with its contractual relations with its other C.I.A.’s when she spoke negatively about selling UndercoverWear and encouraged those C.I.A.’s to sell NuSkin as an easier way to make money. In Prosser & Keeton’s The Law of Torts, 5th ed. (1984), the authors state at p. 978:

It is usually said that tort liability may be imposed upon a defendant who intentionally or improperly interferes with the plaintiff's rights under a contract with another person if the interference causes the plaintiff to lose a right under the contract or makes the contract rights more costly or less valuable.

[27] The authors continue at p. 979:

But neither interference with contract relations or interference with prospective advantages necessarily involves falsehood: and neither necessarily involves an independent tort. It may be sufficient for liability that the defendant has acted intentionally to interfere with a known contract or prospect, that he has caused harm in so doing, and that he has acted in pursuit of some purpose considered improper. Although this “improper” interference was once described as “malicious”, it is now clear that no actual spite has been required at all, and the term has gradually dropped from the cases, leaving a rather broad and undefined tort in which no specific conduct is proscribed and on which liability turns on the purpose for which the defendant acts, with the indistinct notion that the purposes must be considered improper in some undefined way.

[28] The basis of liability for interference with contract is intent. Therefore, the wrongdoer must know of the existence of the contract between the other party and a third party. Further, he or she must act with the knowledge that interference will result by his actions, and that the wrongdoer must act for an improper purpose. In Prosser & Keeton, the authors state at p. 982:

But it is not necessary to show such improper means to establish liability and the defendant may be held even for peaceable persuasion, so long as he knows his persuasion will interfere with the plaintiff’s contract and so long as the interference is regarded as “improper under the circumstances.”