Failure to File the Declaration/Affidavit (N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2257
Page Categories:	[Personal Use Application (LTB)]
Citation:	Failure to File the Declaration/Affidavit (N12), CLNP 2257, <https://rvt.link/7r>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2024/04/01

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

71.1 (1) A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).

Non-compliance with subs. (1)

(2) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).

Previous use of notices under s. 48, 49 or 50

(3) A landlord who, on or after the day subsection 11 (2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application,

(a) indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different rental unit; and

(b) set out, with respect to each previous notice described in clause (a),

(i) the date the notice was given,

(ii) the address of the rental unit in respect of which the notice was given,

(iii) the identity of the intended occupant in respect of whom the notice was given if the notice was given under section 48 or 49, and

(iv) such other information as may be required by the Rules. 2020, c. 16, Sched. 4, s. 11 (2).

Non-compliance with subs. (3)

(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3). 2020, c. 16, Sched. 4, s. 11 (2).

...

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year; or

(b) a notice of termination under section 49, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2017, c. 13, s. 13.

(1.1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination given under section 48 before the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2017, c. 13, s. 13.

Landlord and Tenant Board Rules of Procedure

...

4.4 Where the LTB permits an application to be filed using TOP, any related Notice of Termination, affidavit, or Certificate of Service must be also uploaded at the time of filing.

4.5 If the Notice of Termination, affidavit or Certificate of Service cannot be uploaded at the same time as the application is filed using TOP, they must be filed with the LTB within 5 calendar days of filing. Failure to file these documents in time may result in administrative dismissal of the application.

...

6.6 A landlord's application for compensation for arrears, damage or misrepresentation of income will not be accepted unless the landlord confirms the tenant is in possession of the rental unit.

6.7 An application to terminate a tenancy and evict a tenant for non-payment of rent will not be accepted on or before the termination date in the notice of termination.

6.8 An application to terminate a tenancy and evict a tenant based on a notice to terminate the tenancy pursuant to section 62, 64 or 67 will not be accepted if filed before the seven day remedy period in the notice of termination has expired.

6.9 An application to terminate a tenancy and evict a tenant will not be accepted if filed more than 30 days after the termination date in the notice, unless it is an application based on the tenant's failure to pay rent.

6.10 An application which is incomplete because it does not include documents required by the RTA, regulations or Rules will not be accepted.

Vine v Mcewen, 2021 CanLII 146465 (ON LTB)

5. Subsection 72(1) of the Act requires the Landlord to file a declaration or an affidavit sworn by the person who personally requires the rental unit, certifying that the person in good faith requires the rental unit for his or her own personal use for at least one year.

Rita Garofalo; Gabriella Maia -and- Stephanie Juffs ONLTB LTB-L-059986-22

2. On October 12, 2022, the Landlords gave the Tenant an N12 notice of termination with the termination date of December 14, 2022. The Landlords claims that they require vacant possession of the rental unit for the purpose of residential occupation by their child. The Landlords also filed a declaration which they both signed that affirmed they would be moving into the unit. This declaration accompanied the application on October 17, 2022 when the application was filed. On April 5, 2023, the Landlords filed another declaration signed by their child.

3. Section 71.1 (1) of the Act, states, “A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).”

4. Section 71,1(2) of the Act states, “The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).”

5. The Board’s Rules allows a declaration to be submitted. In this case the termination notice was given under section 48 of the Act and the declaration that the Landlords rely on is from a child and it was filed almost 6 months after the application was filed. The Board cannot consider the merits of the application because the Landlord have not met the statutory requirement of section 71.1(2) which makes it mandatory for the Board to refuse to accept the application. I considered Order HOL-12135-21 and I am not bound by another Member’s decision. I will point out that the order did not include reasons to explain the conclusion reached having granted eviction when section 71.1 was not met.

6. The declaration by the Landlords that accompanied the application when it was filed doesn’t meet the statutory requirement of section 72(1)(b) of the Act because it was not an affidavit sworn [declaration] by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use.

Star Towers Ltd. v Wakunick-Fuery et al, 2023 ONLTB 64356 (CanLII)

36. Given my finding that the L2 applications must be dismissed based on: (a) the failure of the Landlord to provide compensation to MW; and (b) the fact that the N13 notices upon which they are based are invalid, I do not need to consider the application of subsections 71.1(3) and (4), but I will.

37. The issue with the application of subsection 71.1(4) in practice is that there is no process for 'screening' applications filed electronically under section 69 of the RTA based on sections 48, 49 or 50 to determine if they are compliant with subsection 71.1(3). Indeed, there is no way the LTB could, as a practical matter, determine if a landlord had disclosed on an L2 application all of the notices under sections 48, 48 or 50 that were delivered in the preceding two years because landlords are not required by the RTA to 'register' the delivery of an N12 or N13 notice.

38. In my view, the correct way to interpret subsection 71.1(4) is to prohibit the LTB from making an order under section 69 terminating the tenancy and evicting the tenant where it is established that the landlord has not complied with subsection 71.1(3). In this case, I dismissed the L2 applications based on other grounds and, as a result, did not need to consider whether the Landlord had complied with subsection 71.1(3).

Muller v Ball, 2021 CanLII 152588 (ON LTB)

1. The Landlord filed two second N5 Notices of termination. One N5 Notice had a termination date of August 10, 2021 and the other had a termination date of September 20, 2021. Both second N5 Notices were non-voidable Notices of termination issued under section 68 of the Act.

2. The Board has no jurisdiction to terminate the tenancy based on a second N5 Notice when a first N5 Notice has not been given to the Tenant pursuant to sections 62 and 64 of the Residential Tenancies Act, 2006 (the 'Act'). The Tenant had no opportunity to void and correct the problem as a voidable first N5 Notice was not given.

3. The Landlord may have given a first N5 back in May 2021 but that Notice was not accompanied to the L2 application as required by section 53 of General, Ontario Regulation 516/06. An application cannot be amended at the hearing in this case nor can the Notice of Termination be corrected.