Partly Vague (Notice of Termination)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-05
CLNP Page ID:	1787
Page Categories:	Defective Notice (LTB)
Citation:	Partly Vague (Notice of Termination), CLNP 1787, <4Q>, retrieved on 2024-05-05
Editor:	MKent
Last Updated:	2021/10/25

SWL-16024-18 (Re), 2018 CanLII 88648 (ON LTB)

4. In response to the complaints received, on March 9, 2018, the Landlord served the Tenant with a first N5 Notice of termination (the ‘first N5 Notice’) pursuant to subsection 64(1) of the Residential Tenancies Act, 2006 (the ‘Act’). The first N5 Notice lists four dates for the allegations. The first two entries, January 8 and March 7, 2018 list only the dates when the Tenant was issued written notices with respect to earlier incidents, but offer no references to when these events were alleged to have occurred.

5. With respect to the first two entries, I find that the first N5 Notice is unduly vague and lacks necessary references to specific dates and times for the incidents alleged. While the Landlord’s Agents may well have intended to lead direct evidence of the Tenant’s alleged misconduct at the hearing that prompted them to serve the written warnings, the problem lies in the actual text of the originating document – the first N5 Notice – which is the document against which the respondent Tenant must craft her answer. I find on the balance of probabilities that the vague allegations contained in first two entries of the first N5 Notice frustrated his ability to fully and properly respond to the application. If the Tenant is deprived of the ability to know the precise dates of various allegations prior to the hearing, the missing information necessarily compromises his defence.

6. According to the Ontario Divisional Court’s decisions in both Kuzyk v. S.K. Properties and Ball v. Metro Capital Property and Lockhurst, if a Notice of termination issued by a landlord is confusing to the degree that a reasonable person could not understand the precise actions or omissions that caused the landlord to pursue eviction, a Member would find it defective. Specifically, the Court in Ball stated that “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.”

Hryciuk v. Ontario (Legislative Assembly), 1996 CanLII 4013 (ON CA)

As to why the court should interfere even though Judge Hryciuk had taken no clear objection to the process, Hartt J. cited the following observation of Le Dain J. in Cardinal v. Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 at p. 661, 24 D.L.R. (4th) 44:

. . . I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

Ontario Football Conference v. Brampton Minor Football Association, 2020 ONSC 1061 (CanLII)

[23] The fundamental principles associated with the administration of justice and civil procedure include the need to ensure that justice not only be done but be seen to be done, following a procedure that is just and fair. The duty of procedural fairness requires that litigants have the opportunity to present their case fully and fairly. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at paragraph 28; Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC), [2007] O.J. No. 1497 (S.C.J.), at paragraph 29.

William Punnett Housing Co-operative Inc. v. Njoku, 2014 ONSC 5197 (CanLII)

[45] In Neill-Wycik Co-operative College Inc. v. Swick,[57] a member was denied procedural fairness when he was not given adequate notice of the details of the case he had to meet, which, in the particular circumstances, required that he receive particulars of the date and the nature of the alleged violation of the co-operative’s by-law, the identification of the complainants, and the evidence to be relied on. See also: Forestwood Co-operative Homes Inc. v. Gellert;[58] Quigley v. Charles Darrow Housing Co-operative Inc.;[59] Superior View Housing Co-operative Inc. v. Black; and Beaver Hall Artists' Co-operative Inc. v. Berry.

[46] In Chisolm Place Housing Co-operative Inc. v. Hickox, a family of members was denied procedural justice in the rush to have them evicted after a series of nasty confrontations with another member. Justice Leach dismissed the co-operative corporation’s application for a writ of possession and found numerous violations of the principles of natural justice. The members were not provided with adequate notice of the allegations against them and the supporting evidence. They were not provided with an opportunity to be heard. Justice Leach discussed the minimum requirements of natural justice and procedural justice at paragraphs 43 to 47 of his judgment as follows:

43. As emphasized in Neill-Wycik Co-operative College Inc. v. Swick, supra, at paragraph 15, natural justice and procedural fairness do not require Co-operative Boards, (or meetings of a Co-operative's general membership for that matter), to address issues of this nature by conducting trials or otherwise providing members with the full panoply of rights that exist in either the civil or criminal context.

44. For example, there is no requirement that such assemblies act only on evidence or exhibits under oath, that all witnesses must testify in the presence of affected members, or that affected members must be afforded rights of cross-examination.

45. Generally, the requirements of procedural fairness can vary depending on the nature of the particular complaint.

46. At a minimum, however, natural justice and procedural fairness require that a Co-op member facing eviction be fully informed as to the nature of the case he or she has to meet, and be provided with a reasonable opportunity to meet it. This includes reasonable notice of a hearing, advance provision of a clear understanding as to why membership and occupancy rights may be terminated, advance disclosure of the documentation, information and witnesses upon which the Board and/or General Membership will rely, and an opportunity to be present and heard.

47. Moreover, as acknowledged by counsel for the applicant, there must, at the very least, be compliance with the procedural requirements mandated by the Co-operative Corporations Act, supra.