Sheriff Fee's - Re: Set-Aside Order s.78(11)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-12
CLNP Page ID:	1755
Page Categories:	Payment of Rent (LTB), Set Aside
Citation:	Sheriff Fee's - Re: Set-Aside Order s.78(11), CLNP 1755, <4B>, retrieved on 2024-11-12
Editor:	MKent
Last Updated:	2022/03/16

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Khan v. Campbell, 2021 ONSC 6521 (CanLII)

[5] Section 74(11) of the Residential Tenancies Act clearly defines what must be paid by the Tenant to have the Board set aside an eviction order thereunder. The payment of enforcement fees under the Administration of Justice Act is not among the payments required and the inclusion of those fees in its determination of whether the Tenant was entitled to relief was a legal error.

[6] As we are unable to determine from the Board’s decision or the record before us whether the Tenant met the requirements of s. 74(11), it is appropriate to grant the Tenant’s appeal and remit the matter to the Board for a new hearing. There shall be no order as to costs.

New Hope Non-profit Dwellings Inc v Oliver, 2021 CanLII 86815 (ON LTB)

4. At the hearing the Landlord’s legal representative requested an order that the Tenant compensate the Landlord for the non-refundable Sheriff’s fee. The Landlord filed the ex parte eviction order on February 12, 2021. The Landlord was entitled to file from February 10, 2021 onwards. The ex parte order gave the Tenant until February 8, 2021 to file a set aside motion. The Tenant filed this motion on February 16, 2021.

5. The Landlord’s legal representative submitted that the Tenant should be responsible to pay for this fee because it was his breach of the original order that led to this cost. The Tenant submitted that he had received the ex parte order after the February 8, 2021 deadline and acted promptly after that. Further, the Board granted the Tenant’s request to extend time to file this motion and in the endorsement the Board explicitly stated that the Tenant acted as promptly as he could.

6. The Landlord’s legal representative’s submission is based on the Tenant’s conduct that gave rise to the ex parte order and is not based on any of the Tenant’s conduct in relation to the proceedings themselves. An order for the payment of enforcement costs should only be made where the tenant has engaged in conduct in the proceedings that contributed to the expenditure of those costs. The endorsement for the request to extend time was made based only on the Tenant’s submissions in his request; it wasn’t testimony subject to cross-examination. However, the Landlord gave no evidence that the Tenant failed to act promptly and so, based on the Tenant’s testimony and on his request to extend time, I am not satisfied, on a balance of probabilities, that the Tenant’s conduct contributed to this cost. Accordingly there will be no order requiring the Tenant to pay costs to the Landlord.

7. In the circumstances it is appropriate to cancel order TEL-09926-20 and replace it with an order requiring the Tenant to pay arrears and to pay rent for April 2021. This order is issued after two weeks from the hearing date and so the Tenant will be ordered to pay the remaining arrears two weeks from the order date. The parties were told in the hearing that the Tenant would be ordered to pay rent for April 2021 on or before April 1, 2021.