L1 to L10 (Filing Error)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-03
CLNP Page ID:	2115
Page Categories:	[Section 87 (RTA)]
Citation:	L1 to L10 (Filing Error), CLNP 2115, <https://rvt.link/3n>, retrieved on 2024-05-03
Editor:	Sharvey
Last Updated:	2023/02/15

Danigelis v Rosacia, 2022 CanLII 83418 (ON LTB)

18. Arrears of rent are properly claimed under section 87 of the Act:

87 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay arrears of rent if,

(a) the tenant or former tenant did not pay rent lawfully required under the tenancy agreement; and

(b) in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force. 2020, c. 16, Sched. 4, s. 18 (1).

19. The Act and the LTB’s procedures provides that a landlord may claim rent arrears under section 87 by filing an L1 application if also seeking termination for the arrears, and L9 application seeking arrears only, or an L10 application if seeking arrears after a tenant has vacated a unit.

20. Landlords have in the past attempted to assert that a tenant’s failure to pay rent constitutes substantial interference justifying service of an N5 notices of termination given under section 64 of the Act. I consider the order of Vice Chair Carey in TEL-73936-16 (Re), 2016 CanLII 88462 (ON LTB), at para 8, to be a succinct and authoritative statement of the Board’s approach to such efforts:

Although the failure to pay money to a landlord is arguably substantial interference with a lawful right, privilege or interest, a landlord cannot use section 64 of the Act to evict a tenant for non-payment of rent. This is because the Act sets out a comprehensive scheme applicable to proceedings for non-payment of rent. (For example, see sections 59, 74, 82, and 88.) It is a general rule of statutory interpretation that where the Act includes specific provisions that directly address a subject, it is not open to the Board to use more general provisions to deal with the same subject.

21. As section 88.1 mirrors section 64 in that both address a tenant’s conduct that substantially interferes with a lawful right, privilege or interest, a landlord, I consider that the same principle must be applied to attempts to claim arrears under section 88.1.

22. For the foregoing reasons, a claim for arrears is not properly brought by an application under section 88.1, and is dismissed.