Failure to Provide Particulars (N5)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-04
CLNP Page ID:	1868
Page Categories:	[Defective Notice (LTB)]
Citation:	Failure to Provide Particulars (N5), CLNP 1868, <https://rvt.link/52>, retrieved on 2024-05-04
Editor:	Sharvey
Last Updated:	2023/07/04

Leaf v. Gonzalez, 2023 ONSC 3899

[1] This is an appeal of the Review Order of the Landlord and Tenant Board dated November 16, 2022, which upheld the Board Order of November 9, 2022, granting the Landlords’ application for a termination and eviction order against the Tenants. The Tenants’ principal arguments are that the Board erred by finding the Notice of Termination valid, and by barring the Tenants from providing evidence, which they wished to give at the hearing.

...

[5] Subsection 43(2) of the Act provides that a notice of termination “shall also set out the reasons and details respecting the termination ...”. Similarly, section 65(2) of the Act requires the landlord to “set out the grounds” for the termination in the notice. It is not a question of law alone whether the details or grounds must include times. Rather, the issue of the sufficiency of the notice is dependent on the circumstances, or facts of each case.

[6] Counsel for the Appellants took us to cases she suggested make times of events a requirement of all notices. See: Metro Capital Management Inc., Re, 2002 CarswellOnt 8691, [2002] O.J. No. 5931; York University v York, 2021 CanLII 139918 (ON LTB); HOL-04139-19 (Re), 2019 CanLII 87555 (ON LTB); Parent v Girard, 2021 CanLII 143620 (ON LTB). However, those cases must be considered in context. In some cases, specific times may be necessary to provide adequate notice, but those cases do not amend the Act, which does not require specific times be included in notices. What the Act requires is that notice provides the “grounds” or “reasons” for termination, not times.

[7] Even if the sufficiency of notice could be a question of law, as the Tenants have argued that the failure to include times created procedural unfairness, there was no procedural unfairness to the Tenants arising from the failure to specify times in the notice. The grounds were clearly specified in two pages of what the Board called “meticulously detailed” allegations providing numerous dates when marijuana was smoked by the Tenants, which caused health issues for the Landlords’ children who lived in the house. The specific health issues were also included in the notice. While some cases may require times to be included, (complaints of noise during the night might be such a situation), they were not necessary here. Many dates were given, and the Tenants did not dispute that they smoked marijuana in the unit.

[8] Further, the fact that the Board on review stated, incorrectly, that the Landlords also provided times of the use of marijuana in no way detracts from the Board’s finding that notice was sufficient. As the Review decision stated at para. 8 in words equally applicable to the proceeding before us:

The Tenants are attempting to once again raise the same objection that they raised at the hearing. They take issue with the Member's finding that the N7 notice of termination contained sufficient particulars and details for the Tenants to know the case against them, and therefore be prepared to defend themselves against these allegations. The Tenants were well aware that the main point in dispute was the Tenants’ marijuana smoking and its effects on the Landlords and the Landlords’ children. This was clearly set out in the N7 notice of termination. Both sides gave extensive evidence in a hearing that took about 3 hours. In fact, the Tenants themselves admitted that they smoked marijuana in the rental unit, as stated by the Tenants in their request for a review in paragraph 1f. To now allege that there were insufficient particulars in the notice of termination is merely an attempt to rehash evidence that was already provided and considered at the hearing, in the hope of a better result.

[9] We can put it no better.

...

[12] The appeal is dismissed. The Appellants shall pay costs to the Respondents in the amount of $3,000.

Ball v. Metro Capital Management Inc., Re, 2002 CarswellOnt 8691

[11] A notice by a landlord under section 64 of the Act, in addition to being a formal Notice to Terminate a Tenancy Early, is also a "notice to comply". Accordingly, as the tenant has the option "to comply", particulars of the allegations are essential to make the notice meaningful.

[12] 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.

[13] In the circumstances of this case, according to the materials, there were problems in the building relating to hot water. Where a landlord alleges a tenant of "harrassing its employees", it is particularly important that the notice clearly sets out sufficient details for a tenant to be put on notice that the particular acts complained of are alleged by the landlord to be "acts of harrassment" as compared to legitimate inquiries of a "rightfully assertive tenant".

[14] The Member of the Tribunal erred in failing to find that the Notice served on the Tenant was invalid for lacking in the required details.

TEL-79009-17 (Re), 2017 CanLII 60227 (ON LTB)

10. The Landlord’s application alleging substantial interference with reasonable enjoyment must be dismissed because the Landlord’s notices of termination fail to meet the mandatory requirements of the Act.

12. The notices and certificates of service filed by the application indicate the Landlord served the Tenant with a notice of termination pursuant to s. 64 of the Act on March 13, 2017. So the seven day voiding period runs from March 13, 2017 to March 20, 2017. But the second notice filed with the application pursuant to s. 68 of the Act concerns an incident that occurred on March 19, 2017 which is within the 7 day voiding period. So based on the Landlord’s documents alone she cannot assert the Tenant rendered the first notice void. However, the date of termination on the first notice is such that the Landlord can amend her application to be based on the first N5 notice. I have amended the application accordingly on my own motion.

13. The difficulty that arises with the Landlord’s first notice of termination is that it is vague and lacking in particulars. All it says is:

I got many complain from other tenants about Apt 1 always screaming, yelling swearing and he go to other door, scary some body, too loud music too smocking with drinking, it is really interfered to other tenants. [Quoted as written.]

14. The reason this is a problem is because subsection 43(2) of the Act says a notice of termination given by a landlord to a tenant must also set out the reasons and details for the notice.

15. In order to assist the parties to understand the issue, I provided them both with a copy of the Divisional Court’s decision in Ball v. Metro Capital Property, (2002) O.J. No. 5931. I then stood the hearing down so the parties could provide submissions.

16. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”. The notice here clearly does not meet this requirement.

17. The Landlord argues that she brought with her to the hearing all of the evidence the Board could require including details such as dates and times.

18. The problem with this argument is that a notice of termination cannot be amended and the rationale for the rule in Ball v. Metro Capital Property is that the Tenant has the right to know the allegations in advance of the hearing so he can prepare to defend the application. In addition, a notice like this one is voidable so sufficient particulars are required so a tenant knows what he or she must do to void the notice; absent sufficient detail the tenant functionally loses the right to void the notice.

19. Given the above, I find that the notice of termination served on the Tenant pursuant to s. 64 of the Act fails to meet the mandatory requirements of the Act. The Landlord’s application based on this notice must therefore be dismissed.

TSL-72419-16 (Re), 2016 CanLII 71312 (ON LTB)

21. In Ball v. Metro Capital Property, [2002] O.J. No. 5931, the Divisional court found that an N5 Notice must include the dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant. The Court explained that one of the reasons that these particulars are required is for the tenant to be in a position to know the case that he or she must meet. For this reason, I find that the Second N7 was required to include a description of how the tenant’s conduct gave rise to the elements of an “inconsistent use” application as well as accurate dates of the events referenced. Without this information the Tenant could not have reasonably been expected to meaningfully prepare for and defend himself at the hearing against the Landlord’s allegations. Accordingly, I find the Second N7 is invalid because it is deficient in detail and it contravenes both subsection 63(2) of the Act and the principles set out in Ball v. Metro Capital Property.

TEL-97779-19 (Re), 2019 CanLII 87719 (ON LTB)

4. The Landlord served the Tenant with a notice of termination pursuant to section 62 and another notice under section 63 of the Act for damages.

5. As I stated at the hearing, these two notices are lacking the requirement of “reasons and details” as further defined in the Divisional Court decision Ball v. Metro Capital Property, [2002] O.J. No. 5931.

6. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”.

7. Neither of these notices detail the damage that the Landlord believes the Tenant is responsible for; therefore, they must be denied.

TEL-79009-17 (Re), 2017 CanLII 60227 (ON LTB)

13. The difficulty that arises with the Landlord’s first notice of termination is that it is vague and lacking in particulars. All it says is:

I got many complain from other tenants about Apt 1 always screaming, yelling swearing and he go to other door, scary some body, too loud music too smocking with drinking, it is really interfered to other tenants.

[Quoted as written.]

14. The reason this is a problem is because subsection 43(2) of the Act says a notice of termination given by a landlord to a tenant must also set out the reasons and details for the notice.

15. In order to assist the parties to understand the issue, I provided them both with a copy of the Divisional Court’s decision in Ball v. Metro Capital Property, [2002] O.J. No. 5931. I then stood the hearing down so the parties could provide submissions.

16. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”. The notice here clearly does not meet this requirement.

17. The Landlord argues that she brought with her to the hearing all of the evidence the Board could require including details such as dates and times.

18. The problem with this argument is that a notice of termination cannot be amended and the rationale for the rule in Ball v. Metro Capital Property is that the Tenant has the right to know the allegations in advance of the hearing so he can prepare to defend the application. In addition, a notice like this one is voidable so sufficient particulars are required so a tenant knows what he or she must do to void the notice; absent sufficient detail the tenant functionally loses the right to void the notice.

19. Given the above, I find that the notice of termination served on the Tenant pursuant to s. 64 of the Act fails to meet the mandatory requirements of the Act. The Landlord’s application based on this notice must therefore be dismissed.

TSL-09845-19 (Re), 2020 CanLII 31301 (ON LTB)

9. The Landlord’s N5 notice of termination states that the Landlord found cigarettes and ashes on the Tenant’s balcony when they visited the rental unit. The Landlord did not have details regarding the alleged behaviour and did now know whether the Tenant had voided the N5 by ceasing to smoke in the rental unit.

10. I find that the N5 notice of termination that the Landlord’s L2 application was based on is invalid. The N5 notice does not set out the details as required by subsection 43(2) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (Act), which requires a notice of termination to set out the reasons and details respecting the termination.

11. The Divisional Court, in Ball v Metro Capital Properties, [2002] O.J. No. 5931 (Div.Ct.) held that sufficient detail must include the dates and times to fully inform the tenant of the issues that will be raised at the hearing, so they are able to adequately prepare and respond to those issues. Divisional Court decisions are binding on members of the Board and must be followed.

12. As the N5 notice fails to comply with the Act and lacks sufficient details to meet the requirements of the Act and the Ball case, this portion of the Landlord’s application must be dismissed.

13. Nonetheless, even if there had been sufficient details, the Landlord did not have evidence to show that the Tenant had continued the offending behaviour during the voiding period.

TSL-75792-16 (Re), 2016 CanLII 71255 (ON LTB)

4. The L2 Application is based on an N5 Notice of Termination in which the Landlord alleged that the Tenants substantially interfered with the reasonable enjoyment or another lawful right, interest or privilege of the Landlord or another tenant.

5. In the N5 Notice, the Landlord provided the following reasons for the notice:

• JS and boyfriend drink and smoke on the floor in the basement

• Too many visitors going up and down the stairs making noise inside and outside apartment

• MS’ father sleeps on the floor in the unfinished basement

• MS and boyfriend call me using language and threats and they want me to join a conspiracy with the to give them a new lease so that they can avoid paying the hydro and also get Toronto Hydro to put the Hydro back on

• Removed smoke detector covers in corridor and basement

• They stored a lot of their garbage belongings in basement

• At least 5 people reside in a one bedroom apartment about 400 square feet plus visitors, relatives and friends with no electricity (disaster, dangerous)

6. For each of the reasons listed in the N5 Notice, the Landlord provided the following date and time: “May/June, 2016”.

7. In the case of Ball v. Metro Capital Property, [2002] O.J. No. 5931, the Divisional Court stated that an N5 Notice of Termination must include particulars of the allegations. The Court stated, “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.”

8. In addition, subsection 43(2) of the Act states that a notice of termination shall set out the reasons and details respecting the termination.

9. As noted above, the N5 served on the Tenants does not contain any dates with respect to the allegations.

10. At the hearing, the Landlord’s evidence was similarly deficient in detail and the Landlord was not able to provide specific dates for any of the issues he claimed to have observed. Without any specific dates, I am unable to conclude whether the Tenants voided the N5 Notice in accordance with subsection 64(3) of the Act.

11. Without the details regarding the events set out in the N5 Notice, the Tenants were not reasonably able to know the case they had to meet. The Tenants were entitled to this information even if they chose not to attend the hearing. Therefore, in accordance with the decision in Ball and section 43(2) of the Act, I find the N5 Notice deficient in detail because it lacks specific dates for the events listed in it. The Landlord testified that he is not seeking any of the costs he listed in the L2 Application for allegedly having to repair or replace any damaged property. Therefore, no order will issue for that portion of the L2 Application.

12. Based on the Landlord’s lack of details – specifically, dates – in the N5 Notice and in his testimony at the hearing, no order will issue for the L2 Application.

TSL-76417-16 (Re), 2016 CanLII 100316 (ON LTB)

7. In the N5, the Landlords allege that the Tenant plays loud music; argues loudly; uses vulgar language toward them, other tenants and neighbours; has overcrowded the rental unit and stores items in the stairwell contrary to the fire department’s direction.

8. The Landlords’ allegations that the Tenant plays loud music, argues loudly and uses vulgar language cannot be considered by the Board because the N5 contains insufficient details about this conduct. The Landlords did not make out their claim that the rental unit is overcrowded. However, I am satisfied on a balance of probabilities that the Tenant has continued to store items near the stairwell in violation of the fire department’s instructions and that this has substantially interfered with the reasonable enjoyment or another lawful right, interest or privilege of the Landlord or another tenant.

Loud music, arguments and vulgar language – insufficient details and notice voided

9. In the N5, the Landlords describe this allegation as “loud music, arguing loud, using vulgar language to the Landlords, tenants, neighbours” and the dates and times of these events are described as “ongoing”.

10. In Ball v. Metro Capital Property, [2002] O.J. No. 5931, the Divisional Court held that an N5 must have details or particulars, including dates and times of the alleged offensive conduct, together with a detailed description of the alleged conduct engaged in by the tenant. This information is required for a tenant to know the case to be met and to prepare for the hearing accordingly.

11. In the present case, I find that the N5 did not include sufficient particulars of this allegation as no specific incidents of this offensive conduct were described. Without this information the Tenant could not reasonably be expected to know how to prepare to respond to the Landlords’ claim.

12. The lack of particulars with respect to this allegation also contravened section 43(2) of the Act, which requires a notice of termination to set out the reasons and details respecting the termination. Accordingly, since the N5 lacks sufficient details regarding the Landlords’ claim that the Tenant plays music and argues loudly and uses vulgar language, I find that the N5 is invalid with respect to these allegations and they are dismissed.

13. Even if there was enough detail in the N5, these allegations would be dismissed anyway because the Tenant voided the N5 in this regard.

14. The Landlords served the Tenant with the N5 on July 16, 2016. According to subsection 64(3) of the Act, the Tenant had 7 days from the day the N5 was served to correct the offending conduct and void the notice. Therefore, the relevant voiding or remedy period in this case ran from July 17, 2016 to July 24, 2017.

15. The Landlords did not present any evidence that the Tenant played music loudly, argued loudly or used vulgar language during the voiding period. Accordingly, I am not convinced that it is more likely than not that the Tenant did not void the N5 in this regard.