Rescind Notice of Termination (N9)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1178
Page Categories:	[Notice of Termination by Tenant (LTB)]], [Section 44 (RTA)], [Section 46 (RTA)], [Section 47 (RTA)], [Section 77 (RTA)]
Citation:	Rescind Notice of Termination (N9), CLNP 1178, <https://rvt.link/46>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/02/15

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

44 (1) A notice under section 47, 58 or 144 to terminate a daily or weekly tenancy shall be given at least 28 days before the date the termination is specified to be effective and that date shall be on the last day of a rental period. 2006, c. 17, s. 44 (1).

(2) A notice under section 47, 58 or 144 to terminate a monthly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a rental period. 2006, c. 17, s. 44 (2).

(3) A notice under section 47, 58 or 144 to terminate a yearly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that date shall be on the last day of a yearly period on which the tenancy is based. 2006, c. 17, s. 44 (3).

(4) A notice under section 47, 58 or 144 to terminate a tenancy for a fixed term shall be given at least 60 days before the expiration date specified in the tenancy agreement, to be effective on that expiration date. 2006, c. 17, s. 44 (4).

(5) A tenant who gives notice under subsection (2), (3) or (4) which specifies that the termination is to be effective on the last day of February or the last day of March in any year shall be deemed to have given at least 60 days notice of termination if the notice is given not later than January 1 of that year in respect of a termination which is to be effective on the last day of February, or February 1 of that year in respect of a termination which is to be effective on the last day of March. 2006, c. 17, s. 44 (5).

...

46 (1) A notice of termination becomes void 30 days after the termination date specified in the notice unless,

(a) the tenant vacates the rental unit before that time; or

(b) the landlord applies for an order terminating the tenancy and evicting the tenant before that time. 2006, c. 17, s. 46 (1).

(2) Subsection (1) does not apply with respect to a notice based on a tenant’s failure to pay rent. 2006, c. 17, s. 46 (2).

...

47 A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47.

...

77 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if,

(a) the landlord and tenant have entered into an agreement to terminate the tenancy; or

(b) the tenant has given the landlord notice of termination of the tenancy. 2006, c. 17, s. 77 (1).

(2) The landlord shall include with the application an affidavit verifying the agreement or notice of termination, as the case may be. 2006, c. 17, s. 77 (2).

(3) An application under subsection (1) shall not be made later than 30 days after the termination date specified in the agreement or notice. 2006, c. 17, s. 77 (3).

(4) On receipt of the application, the Board may make an order terminating the tenancy and evicting the tenant. 2006, c. 17, s. 77 (4).

(5) An order under subsection (4) shall be effective not earlier than,

(a) the date specified in the agreement, in the case of an application under clause (1) (a); or

(b) the termination date set out in the notice, in the case of an application under clause (1) (b). 2006, c. 17, s. 77 (5).

(6) The respondent may make a motion to the Board, on notice to the applicant, to have the order under subsection (4) set aside within 10 days after the order is issued. 2006, c. 17, s. 77 (6).

(7) An order under subsection (4) is stayed when a motion to have the order set aside is received by the Board and shall not be enforced under this Act or as an order of the Superior Court of Justice during the stay. 2006, c. 17, s. 77 (7).

(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (4), if,

(i) the landlord and tenant did not enter into an agreement to terminate the tenancy, and

(ii) the tenant did not give the landlord notice of termination of the tenancy;

(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or

(c) make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order. 2006, c. 17, s. 77 (8).

TET-88074-18 (Re), 2018 CanLII 113147 (ON LTB)

28. So the first question for the Board is whether or not the evidence is sufficient to make a finding that the Tenant did not understand that he was ending his tenancy when he signed the Form N9.

29. Based on the evidence before the Board I accept that the Tenant regrets the decision now but I do not accept the argument that he did not understand he was ending his tenancy. The Support Worker testified that after she read the notice to him line by line she asked him if he understood what signing it would mean. He replied that it meant he would be ending his tenancy. That is convincing evidence of capacity to terminate a tenancy. In other words, he understood it meant he would be moving. The fact that he may not have understood what was waiting for him in the long-term care setting and might not have consented to terminate the tenancy if he did does not negate the evidence that he understood the nature of the document he was signing and the consequences of doing so.

...

35. The doctrine of undue influence leads to rescission of contracts where:

… one party is deemed not to have exercised its free and independent judgment in entering into the contract because another party exercised improper influence on him…

Cases of undue influence are divided into two broad categories. Presumed undue influence covers cases where the transaction at issue occurred between parties involved in specific relationships. Transactions occurring outside the bounds of these relationships fall into the category of undue influence.

… in cases of presumed undue influence, the presumption requires that the transaction is one that calls for an explanation in the sense that it is a transaction that ::lies beyond transaction ordinarily encountered in such relationships.

A. S. and J. A. (Contributors), Halsbury’s Laws of Canada – Contracts (2013 Reissue) at HCO-145.

[Emphasis in original.]

TST-67898-15-RV (Re), 2016 CanLII 38258 (ON LTB)

11. What appears to have happened according to the text messages is that after the agreement was entered into the Landlord called the Board for information and was correctly told that where there is a fixed term lease the earliest date of termination on a notice to terminate by a tenant is the last day of the fixed term and where rent is payable monthly the notice must be given at least 60 days prior to the date of termination. On October 15, 2014, he sent a text to the Tenants saying he had discovered this information and was reneging on the part of the agreement that pertained to returning the deposit. The Landlord was not entitled to do that. Once parties enter into a tenancy agreement or enter into an agreement to terminate that tenancy, one party to the agreement is not free to unilaterally change the terms and conditions of the agreement or cancel it. (See: Musilla v. Avcan Management Inc., 2011 ONCA 502 (CanLII).)

SWL-47601-13 (Re), 2013 CanLII 40026 (ON LTB)

5. The Tenants gave the Landlord a notice to terminate their tenancy effective May 15, 2013 and they did not move out of the rental unit by the termination date set out in the notice. This notice lead to the Landlord filing an application to terminate the tenancy under Form L3. The Tenants issued this notice to terminate the tenancy in writing to the Landlord as part of an ultimatum over their demands that the Landlord effect repairs to a number of maintenance issues they had with the house. As part of these demands, the Tenants declared their intention to withhold payment of rent. While the Tenants clearly had no authority to withhold payment of rent, I find that the wording of the notice of the Tenants’ notice to terminate too ambiguous to be relied upon as a bona fide intention to terminate the tenancy on a specific date, in part because it was contingent on the Landlord providing a receipt for a $500.00 deposit that the Tenants ultimately never paid. Therefore, the Landlord’s application for termination on this ground is dismissed.

TSL-08785-10 (Re), 2010 CanLII 65599 (ON LTB)

1. In accordance with subsection 200(4) of the Residential Tenancies Act, 2006 (the ‘Act’), I consent to the withdrawal of the T2.

2. The L3 was dismissed for three reasons:

(a) the notice of termination was not on the form approved by the Board as required by subsection 43(1) of the Act;

(b) the notice was purportedly effective September 1, 2010, not the last day of a rental period as required by subsection 44(2) and section 47 of the Act; and

(c) the notice was missing the complete address of the rental unit as required by subsection 43(1)(a) of the Act.

SWL-19827-18-SA (Re), 2018 CanLII 141518 (ON LTB)

3. In the first week of July 2018, the Tenant experienced medical problems. Her doctor advised her that it was not wise to move further away from the hospital. The Tenant attempted to tell the Landlord’s Agent in person, by phone and by registered letter that she had changed her mind and wish to rescind her notice to terminate.

4. Sometime in July 2018, the Landlord’s Agent delivered to the Tenant a letter advising that the Landlord was relying on the Tenant’s notice to vacate and was not willing to rescind it.

5. The Tenant has lived in the building for 10 years, in this unit since 2014. She is 79 years old and has serious medical issues.

...

10. Section 47 of the Act provides that a tenant may terminate a tenancy at the end of a period of the tenancy or the end of a term of the tenancy for a fixed term by giving a notice to the Landlord in accordance with section 44.

11. Section 44 provides that notice to terminate a monthly tenancy shall be given at least 60 days before the date the termination is specified to be effective and that the date shall be the last day of a rental period.

12. Section 77 provides that a Landlord within 30 days of the termination date given by the Tenant, a Landlord may apply for an order terminating tenancy and upon receipt of the application the Board may make an order terminating tenancy.

13. Subsection 77(4) provides that a Tenant may make a motion to set aside the Board’s order within 10 days after it is issued.

14. Subsection 77 (8) provides:

(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (4), if,

(i) the landlord and tenant did not enter into an agreement to terminate the tenancy, and

(ii) the tenant did not give the landlord notice of termination of the tenancy;

(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or

(c) make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order.

15. According to this section, I must make an order setting aside the ex parte order if I find that the parties did not enter into an agreement and the Tenant did not give the Landlord a notice of termination. Although the parties did not enter into an agreement, I am satisfied that the Tenant did give a valid notice. Therefore, the requirements of s 77(8)a have not been met and I am not required to set aside the order.

16. Subsection 77(8)b allows me to set aside the order if I am satisfied it would not be unfair to do so “having regard to all the circumstances”.

17. The circumstances I have considered :

a.) The Tenant is elderly and in ill health;

b.) The Tenant has lived in the premises, which are near the hospital, for over 10 years;

c.) Moving would cause the Tenant significant inconvenience and stress;

d.) The Tenant made serious efforts to communicate with the Landlord that she wished to change her mind;

e.) The Landlord failed to produce any reliable evidence that allowing the Tenant to stay would cause the Landlord any significant disadvantage. Although BH did produce a receipt in support of her argument that she had re-rented the Tenant’s unit, the receipt was dated well before the Tenant gave her notice, the prospective Tenant has moved into another apartment, not even the one she originally agreed to rent, and BH failed to produce a copy of the lease with the prospective tenant. The primary reason that BH gave for wanting to enforce the eviction of the Tenant was that the prospective tenant had wanted a two bedroom unit and the Landlord had a waiting list for units. BH did not lead any evidence about the relative rental rate between one bedroom and two bedroom units or whether the rents charged to a new tenant are generally higher than that charged to a sitting tenant.

18. Although I acknowledge that Landlords should be able to rely upon tenants’ notices to terminate and they may suffer financial consequences if a tenant defaults, the Landlord in this case failed to produce any evidence that in this case, the Landlord would suffer any loss. When I asked BH what prejudice would be caused to the Landlord if I let the Tenant stay, she queried whether the Landlord might be sued by a prospective tenant. She did not testify that any prospective tenant had threatened to sue or that the Landlord was at any legal risk or that she had obtained legal advice to answer her question before posing it to me. In fact, BH said that she was willing to allow the Tenant to stay a further 60 days which suggests that there is no immediate need for the Tenant’s unit based on the Landlord’s reliance on her notice.

19. In light of all the circumstances, I am satisfied that it would not be unfair to grant the Tenant’s motion because the Tenant produce evidence that it would be harmful for her to move and the Landlord failed to produce any evidence that it would be prejudicial to the Landlord to allow her to stay.