Incorrect Information Regarding How to Void the Notice (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-04
CLNP Page ID:	767
Page Categories:	Defective Notice (LTB)
Citation:	Incorrect Information Regarding How to Void the Notice (LTB), CLNP 767, <https://rvt.link/53>, retrieved on 2024-05-04
Editor:	MKent
Last Updated:	2023/03/27

TSL-95762-18 (Re), 2018 CanLII 111695 (ON LTB)

1. The Landlord’s main complaints in this application were contained in an N5 notice to terminate the tenancy for substantial interference with reasonable enjoyment. The Tenant brought a preliminary motion that I find the N5 to be invalid because it contained incorrect information regarding how it could be voided. I granted the motion.

2. The rental unit is a condo unit. The N5 set out various instances in which the Tenant is alleged to have made excessive noise and parked in the wrong parking spot. The N5 also stated that because the condo management company received complaints about the Tenant’s behaviour, the Landlord was charged condo fees totaling $1,141.30.

3. The Landlord also wrote, at various points in the N5, that it could be voided by the Tenant taking various steps to reduce noise, taking various steps to park in different ways, and paying the Landlord $1,141.30.

4. The problem with the N5 is that the Landlord did not have the authority to decide how it could be voided. The right to void an N5 comes from section 64 of the Residential Tenancies Act, 2006 (the ‘RTA’):

64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

(2) A notice of termination under subsection (1) shall,

(a) provide a termination date not earlier than the 20th day after the notice is given;

(b) set out the grounds for termination; and

(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.

(3) The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.

5. In other words, to void the notice, the Tenant must “stop the conduct or activity” or “correct the omission” that substantially interfered with the Landlord’s rights. What steps the Tenant takes to stop the conduct is up to the Tenant. The Board’s N5 form states that “you have 7 days to stop the activities or correct the behaviour described,” and that is all the information about voiding that needs to be on the notice.

7. Most seriously, the N5 also stated that the Tenant had to pay the Landlord $1,141.30 to void it. That, too, was not true. The Landlord had no authority to demand that the Tenant reimburse him for condo fees. Subsection 134(1)(a) of the RTA prohibits the Landlord from collecting, requiring, or attempting to collect any penalty or like amount of money not authorized by the RTA. There is no authority in the RTA for the Landlord to collect condo fees, even if the fees were assessed because of the Tenant’s conduct.

8. In short, the N5 fundamentally misstated the law by telling the Tenant that to void it, he had to take specific steps, some of which he did not actually have to take. The N5 did not comply with subsection 64(2)(c). Instead of requiring the Tenant to cease the conduct that substantially interfered with the Landlord’s reasonable enjoyment, it required him to do things that he did not have to do.

9. The Landlord argues that, even if the offending portions of the N5 are invalid, the rest of the N5 should still be valid. I do not agree. The N5 fundamentally misstated the law regarding how it could be voided. The Tenant, on receiving the notice, cannot be expected to have known that he could void it by complying with some parts of it and ignoring the rest. The notice was misleading in its entirety.

10. Since no valid N5 has been served, the portion of the Landlord’s claim respecting substantial interference is dismissed.