Service by Email (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2282
Page Categories:	Hearing Process (LTB), Defective Notice (LTB)
Citation:	Service by Email (LTB), CLNP 2282, <https://rvt.link/8w>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/09/25

McNab v Pullara, 2021 CanLII 115491 (ON LTB)

28. The Board’s Rules, as well as the Act set out what is considered proper service of a notice of entry, as well as what details must be contained in the notice of entry in accordance to s. 27 of the Act. With respect to email service for a notice of entry, the Board’s Rule 3.4, 3.5 and 3.6 state the following:

3.4 Parties may consent in writing at any time to service by email.

3.5 Consent to service by email may be revoked at any time by giving notice in writing to the person or party.

3.6 Where a party does not consent to service of a document by e-mail, the LTB may permit the document be served by e-mail on such terms as are just.

29. Having regard for the Board’s Rules about email service, I have carefully considered the evidence of both parties, including the documentary submissions. It is clear from the evidence before me that both parties communicate primarily by email. Further, when AC sent notice of entry to the Tenant on September 7, 2020, the Tenant did not disagree with the method of service and engaged in an email exchange with AC about the notice of entry. In fact, the copy of the email attached to the application demonstrates the Tenant having agreed to the entry as he was hoping his windows would be repaired by the contractors. The Tenant even stipulated to AC that he would ensure he would be home when she and the contractors attended on September 8, 2020. I am satisfied that his incident does not meet the threshold of an illegal entry. Rather, I find AC gave notice to the Tenant that she and contractors needed access to the rental unit and the Tenant consented to them entering his unit. As the Tenant consented to the entry, there is no basis for which I can find AC illegally entered the unit. My finding may have been different and in favor of the Tenant had the Tenant told AC this notice of entry was not proper and that he would not consent to her entering the unit on September 8, 2021. It is apparent to me that the Tenant is well versed in the provisions of the Act as he previously told AC that her notices of entry were not in compliance with the Act. He did not advise AC of those provisions with respect to this notice of entry.

Flipca Ltd v Campbell, 2021 CanLII 73633 (ON LTB)

14. The Tenant also submitted that by operation of s.12 of the Residential Tenancies Act, 2006 (the ‘Act’), his obligation to pay rent was suspended at the time that he was ordered to pay rent. Section 12 of the Act provides that if the parties enter into a written lease, the landlord must give a copy of the lease (which must provide a name and address for service for the landlord) no later than 21 days after the tenant signs the lease and if there is no written lease, the landlord must provide the tenant with an address for service no later than 21 days after the commencement of the tenancy.

15. However, in order HOL-05498-19, issued October 22, 2019 (amended November 27, 2019), the Board found that the Landlord had given the Tenant an address for service by email in June 2019, prior to when the Landlord started to charge rent to the Tenant and that this satisfied the substance of the requirement at s.12 of the Act. I upheld this finding in a review order issued in November 2019. The purpose of s.12 of the Act is to ensure that a tenant has an address for service for the landlord. Once the tenant has the landlord’s address for service, any suspension on the payment of rent imposed by s.12 of the Act is lifted. In any event, as mentioned above, this issue was raised in the appeal of HOL-05498-19 and the Divisional Court dismissed the appeal.

16. The Tenant gave no evidence that there is any relevant circumstance that would support a conclusion that it would not be unfair to set aside the ex parte eviction order. On the other hand, the Landlord is owed arrears of over $40,000.00. I am therefore not satisfied, having regard to all of the circumstances, that it would not be unfair to set aside the eviction order. In fact, I am satisfied that to set aside the eviction order would be profoundly unfair to the Landlord.

Social Justice Tribunals Ontario Common Rules

A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to: promote the fair, just and expeditious resolution of disputes, allow parties to participate effectively in the process, whether or not they have a representative, ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

A3.2 Rules and procedures are not to be interpreted in a technical manner.

...

A4.2 The tribunal may vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.

CET-77956-18 (Re), 2019 CanLII 87784 (ON LTB)

40. In this application, the Landlords alleged that the Tenants have been persistently late with paying the rent. At the outset of this hearing, the Tenants questioned the service of the N8 notice of termination at the root of the application. The Tenants stated that they only received the N8 notice because it was left on their front step. The Landlords’ Legal Representative submitted that a copy of the N8 notice was also emailed to the Tenants’ Legal Representative of record at that time.

41. At the final date of this matter, the Tenants presented an affidavit from their former Legal Representative which refuted the Landlords’ Legal Representative’s submission of service of the N8 notice by email. Regardless of the Legal Representatives dispute on service by email, there was no dispute that the Tenants received a copy of the N8 notice at their rental unit.

42. The N8 notice provided a list of dates when the rent was received for the period of December 1, 2016 to October 31, 2018. There was no dispute that no rent was paid to the Landlords for the period of June 1, 2018 to October 31, 2018. The Landlords’ submitted that the rent was also late for the period of January 2018 to May 2018.

43. The Tenants disputed this allegation and submitted that pursuant to section 12 of the Act, because there was no address for the Landlords in their Agreement, their obligation to pay rent was suspended. The Tenants further disputed that the rent was paid late. They stated that the Landlords’ Agent failed to deposit cheques on time and/or failed to pick up the rental payments.

Landlord and Tenant Board Rules of Procedure

1.6 In order to provide the most expeditious and fair determination of the questions arising in any proceeding the LTB may:

a. waive or vary any provision in these Rules and may lengthen or extend any time limit except where prohibited by legislation or a specific Rule;

...

Service by Email

3.5 Parties may consent in writing at any time to service by email.

3.6 Consent to service by email may be revoked at any time by giving notice in writing to the person or party.

3.7 Where a party does not consent to service of a document by e-mail, the LTB may permit the document be served by e-mail on such terms as are just.

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

191 (1) A notice or document is sufficiently given to a person other than the Board,

...

(g) by any other means allowed in the Rules. 2006, c. 17, s. 191 (1).

Same, tenant or former tenant no longer in possession

(1.0.1) Despite subsection (1), a notice or document is sufficiently given to a tenant or former tenant who is no longer in possession of a rental unit,

...

(d) by any other means allowed in the Rules. 2020, c. 16, Sched. 4, s. 29.

Same, Part V.1

(1.1) Despite subsection (1), for the purposes of Part V.1, a notice or document is sufficiently given to a person other than the Board,

...

(g) by any other means allowed in the Rules. 2013, c. 3, s. 42.

When notice deemed valid

(2) A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period. 2006, c. 17, s. 191 (2).

St. Denis v Smith, 2022 CanLII 118571 (ON LTB)

7. Section 191 of the RTA provides that a notice is sufficiently given under the RTA if it is done so in accordance with the Board’s Rules. Rule 3.1h allows for service via email if the recipient has consented to it service by email.

8. I find that the Tenant has established two illegal entries. First, assuming without deciding that a text message constitutes an email within the meaning of the Rules, I heard no evidence that the Tenant consented to service by email, as required by Rule 3.1h. As such, I find that the text message notice of entry sent on February 26 did not comply with s. 27, and thus the subsequent entry was illegal. I note that the Tenant was essentially given 24 hours of actual notice of the entry for a legitimate purpose, however that speaks more to remedy than it does to whether there was a breach.

9. I further find that the February 29 incident at midnight also constitutes an illegal entry. I accept the Tenant’s uncontradicted evidence that the Landlord did not provide 24-hour written notice for the Superintendent’s entry. Moreover, while s. 26(1) of the RTA allows an entry without notice in cases of emergency or where the tenant consents, there was no evidence supporting a finding that either of these circumstances apply.

10. The illegal entry of a rental unit is a breach of privacy. The leading case with respect to breach of privacy is Wrona v. Toronto Community Housing Corp., [2007] O.J. No. 423 (Ont. Div. Ct.). In that case the Tenant was provided with notice but the notice failed to meet the mandatory requirements of the RTA. The Court awarded the tenant $1,000.00