Failed to Vacate on Notice (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-06
CLNP Page ID:	1930
Page Categories:	[Interference of Reasonable Enjoyment (LTB)]
Citation:	Failed to Vacate on Notice (RTA), CLNP 1930, <7X>, retrieved on 2024-05-06
Editor:	Sharvey
Last Updated:	2022/06/22

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

22 A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located for all usual purposes by a tenant or members of his or her household. 2006, c. 17, s. 22.

...

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

(2) If a notice of termination is given in accordance with this Act and the tenant vacates the rental unit in accordance with the notice, the tenancy is terminated on the termination date set out in the notice. 2006, c. 17, s. 37 (2).

(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.

PE Real Estate v. Kelly 2021 ONSC 4661

[28] The tenants submit the deputy judge committed an error in law in concluding that the landlord had a cause of action arising from the tenants' failure to vacate the premises prior to the original termination date of July 31, 2018.

[29] The landlord argues that by overstaying the July 31, 2018 notice of termination date (and the August 4, 2018 closing date) for the sale of the subject property, the tenants caused the landlord to breach the agreement of purchase and sale. As a result, the tenants are liable for damages to compensate the landlord for the costs incurred to extend the closing date.

[30] Further, the landlord submits that whiles. 43(2)(c) gives a tenant an unqualified right to dispute an eviction hearing at the L TB, that right does not mean they were in lawful possession on July 31, 2018, or on August 4, 2018.

[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 enor 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) ands. 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.

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[40] To reiterate, the RTA creates no obligation on tenants to provide notice of intention to challenge an 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. The exchange with the student-at-law representing the tenants demonstrates that misunderstanding, at pp. 53 and 54:

THE COURT: Right. Yes. If the landlord applies for an order, the tenant is entitled to dispute the application of course.

MR. BATTISTON: And in this circumstance, Your Honour, that is in fact what my client was doing in this instance, and they have that legal right to do under this act.

THE COURT: Right. But how is the landlord to know that your client is not going to vacate the rental unit under the N2 - or N12, pardon me?

MR. BATTISTON: So under ...

THE COURT: So you're saying every landlord should be bringing an application right away.

MR. BATTISTON: If a landlord has an instance in which they need a tenant gone from that premises, best practice would suggest then, Your Honour, that an application for eviction would be filed subsequent to the N12, to ensure that tenant is evicted from that property, and so that whatever circumstance that the N 12 was served for can proceed without a potential breach, or some other instance, Your Honour.

THE COURT: So you're saying it's fully on the landlord, so there should be no costs payable at all, is that right?

MR. BATTISTON: Correct, Your Honour. Yes.

THE COURT: All right. Go ahead.

...

[42] Pursuant to s. 71 of the RTA, a landlord can make application to the LTB immediately upon giving notice of eviction under to 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. Pursuant to the RTA, the landlord had the unfettered and unqualified right to have filed such application two months earlier. Had the landlord done so, the hearing before the LTB would have been held well in advance of the original closing date. In that manner, the landlord could have obtained vacant possession.

[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 a 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 provisions 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.