Year to Year Tenancy Agreement (RTA)

TSL-92810-18 (Re), 2018 CanLII 120864 (ON LTB)

12. The Board has already determined in order TSL-79981-16 that the only permitted termination date for the tenancy that complies with the notice requirements in subsection 50 (2) of the Act is October 31 of the applicable year. Applying the maxim of res judicata, I find that this determination should be applied in the matter before me. As a result, I must find that the Landlord’s N13 does comply with subsection 50 (2) of the Act as it fails to specify a termination date of October 31, 2018.

13. I did consider the Landlord’s submissions concerning section 38 of the Act, as it was not specifically mentioned in order TSL-79981-16. The lease term clearly contemplates that this is a tenancy which automatically renews, “year-to-year” unless it is terminated. I do not see that sub-section 38 (1) therefore applies to this as there is no “fixed term” or end without positive action from either the Tenants or the Landlord. Likewise, I do not see that sub-section 38 (2) applies. Sub-section 38(3) speaks to a periodic tenancy – a form of tenancy which by common law definition continues indefinitely until terminated by either of the parties – but speaks to a situation in which it ends without having been renewed or terminated. I therefore do not see that this subsection applies either. I also do not see the absence of a deemed month to month tenancy pursuant to section 38 as problematic from a policy perspective. These parties voluntarily chose to enter into such an arrangement after having an opportunity to consider both the negative and positive aspects from each of their perspectives.

14. For the reasons stated, the N13 is invalid because it does not have a date of termination that is the end of the term of the tenancy. In the absence of a valid notice of termination, the Board cannot consider the Landlords’ application. The Landlords declined to withdraw the application.