Multiple Notice's Cause Confusion (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	769
Page Categories:	[Defective Notice (LTB)], [Section 22 (RTA)], [Section 61 (RTA)], [Section 62 (RTA)],[Section 63 (RTA)], [Section 64 (RTA)], [Section 65 (RTA)], [Section 66 (RTA)]
Citation:	Multiple Notice's Cause Confusion (LTB), CLNP 769, <https://rvt.link/3p>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/03/25

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TSL-93538-18 (Re), 2018 CanLII 120835 (ON LTB)^Download

1. The Tenant made a preliminary motion to dismiss the Landlords’ application.

2. It is the Tenant’s position that because of confusion resulting from the Landlords having served the Tenant with N5 and N6 and N7 notices at the same time with the same termination date claiming in all three the same two reasons for ending the tenancy and evicting the Tenant, namely, for having removed the baseboard heaters and for fire code violations.

3. It is undisputed that an additional allegation in the N5 notice (not made part of the N6 and N7) regarding the Tenant obstructing access to the parking lot was corrected by the Tenant within the 7 day period following the service of the N5 notice. Therefore the allegation in N5 respecting parking has been voided in accordance with section 64(3) of the Residential Tenancies Act, 2006 (Act).

4. The only other issue in the N5 that is also not included in the N6 and N7 is the allegation that the Tenant interfered with the Landlords’ attempts to access the rental unit to perform maintenance. I find that this allegation has also been voided because it is not disputed that the Landlord did not seek further access to the rental unit within the 7 day voiding period.

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12. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

13. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told he can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

14. Further, I cannot see how it makes any difference in what way the Tenant is able to void the N5 notice, such as paying for the repairs within the 7-day period, when that notice is being compared with the N6 and N7 notices with respect to whether the combination of all three when served together creates confusion.

15. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s application to terminate the tenancy in the absence of valid notices of termination.

TSL-96380-18 (Re), 2018 CanLII 120849 (ON LTB)^Download

1. On March 16, 2018, the Landlord caused a first N5, N6, and N7 notices of termination to be given to the Tenant on March 16, 2018 with each containing the same schedule attached outlining the Landlord’s complaints. The N6 and N7 notices are the basis for the L2 application with a termination date of April 30, 2018.

2. A second N5 notice was given to the Tenant with a termination date of July 31, 2018. The schedule attached to the second N5 notice appears to be the same one that was attached to the first N5 notice. The second N5 notice is the basis for the L2 application with a termination date of July 31, 2018.

3. Notwithstanding the impugned conduct is common to all three notices, only the first N5 notice provides that in order to avoid eviction the Tenant has 7 days to stop the activities or correct the complained about behaviour. The N6 and N7 notices do not permit the Tenant to avoid eviction by stopping the complained of activities and paying for repairs within 7 days. In other words, simultaneously, the Tenant is being told she can and cannot avoid eviction for the same impugned conduct.

4. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices…

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

5. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told she can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

6. In file number SWL-42630-12 the Vice-Chair denied the landlord’s request for termination under the L2 application because the notices given to the tenant lacked detail and “service of two different notices in respect of the same issue, one voidable and one not, is sufficiently confusing that the tenant would reasonably have been confused by receipt of those multiple notices.”

7. I find the reasoning in file number SWL-42630-12 persuasive and as a result I find the first N5 and the N6 and N7 notices given to the Tenant are nullities. Furthermore, because the second N5 is, in fact, a first N5 but indicates on its face that it is not voidable, it, too, is a nullity.

8. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s L2 applications to terminate the tenancy in the absence of valid notices of termination.

TSL-93796-18 (Re), 2019 CanLII 87094 (ON LTB)

1. On February 27, 2018, the Landlord gave the Tenants an N5 notice and an N7 notice to end their tenancy based upon the substantially same allegation of wrongdoing as follows:

(a) In the N5 notice it is alleged: “Friday, 12th January 2018 13:58. Tenant D.A drove his truck into #.H.A indoor garage door damaging the mechanical operation of the door and dismantling the lower panel. Due to the dysfunctional garage door the attached sequence of events occurred causing the cost on page 1 of this notice ($4,276.01).

(b) In the N7 notice it is alleged: “Friday, 12th January 2018 13:58. D.A impaired the safety of the tenants in the residential complex by speeding down the ramp of # .H.A damaging the garage door and shattering his windshield. Video available.

2. Notwithstanding the impugned conduct is common to both the N5 and N7 notices, only the N5 notice provides that in order to avoid eviction the Tenants have 7 days to stop the activities and correct the complained about behaviour by paying $4,276.01. The N7 notice does not permit the Tenants to avoid eviction by stopping the complained of activities within 7 days and paying $4,276.01. In other words, simultaneously, the Tenants are being told they can and cannot avoid eviction for the same impugined conduct.

3. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination; as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

4. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that is inconsistent and therefore causes confusion. That is exactly what has occurred in the present case where the Tenants are being told they can and cannot avoid eviction for the same impugned conduct. This contradictory direction is improper and would likely confuse any reasonable tenant.

5. Thus, it is inconsistency with respect to avoiding eviction that is the flaw in the procedure adopted by the Landlord. It would, indeed, be a rare tenant who could claim they are not confused by two notices of termination of their tenancy given to them virtually simultaneously based on substantially the same conduct where one is voidable and the other is not.

6. For these reasons, I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is inconsistent and confusing and causes both notices before me to be defective. I cannot consider the Landlord’s L2 application to terminate the tenancy in the absence of valid notices of termination.

TSL-84761-17 (Re), 2017 CanLII 84842 (ON LTB)

2. First of the more compelling of these submissions, mentioned more as an aside than as a determination, related to the widespread practice of attaching a single schedule attached to several notices of termination. In my experience, this can cause confusion to tenants, especially if one of the notices it is attached to is a voidable N5. Separate schedules are desirable for clarity, so that a tenant wanting to defend an application based on such notices can clearly understand what alleged acts might apply to which notice.

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4. In any event, the most compelling of the Tenants’ arguments related to the two cover letters enclosing the notices of termination served on the Tenants. Each contained standard wording on law firm letterhead indicating who the firm represented, which notices of termination were enclosed and that they were being served in accordance with the Residential Tenancies Act, 2006 (the ‘Act’). Below but above the signature line (along with the standard wording “govern yourself accordingly”) were further statements that entirely misstated the law. In the letter enclosing the behavioural notices of termination, the wording was: “you will note that you must move out of the above-noted rental unit on or before May 19, 2017.” In the letter enclosing the arrears of rent application, the wording was: “you will note that must void the notice or move out of the rental unit by April 21, 2017.”

5. In fact, tenants need not vacate rental units as a result of notice of termination, where the Landlord and Tenant Board’s pre-printed forms say: “you do not have to move out if you disagree with what the landlord has put in this notice.” The approved notices of termination go on to say that the landlord can apply to evict a tenant after a hearing, essentially repeating what is provided in subsection 43(2) of the Act.

6. Subsection 43(1) of the Act also provides that notices of termination shall be in the approved form, which these were, but the cover letters directly contradicted them. It is, in my view, analogous to altering the pre-printed forms with text to contradict them.

7. Even more egregious is that the misleading letters were on a law firm’s letterhead, likely on top of the notices of termination, with the correct statements buried in the smaller print of the notices. There is nothing wrong with enclosing a form of demand letter with a notice of termination (although I am uncertain of the point), but enclosing one that is misleading cannot be.

8. The notices of termination preceding the applications were therefore determined to be void at the hearing and termination of the tenancy could not be ordered.

TSL-01555-18 (Re), 2019 CanLII 87006 (ON LTB)

10. The Landlord submits the Tenant has to testify she is confused by these inconsistent notices of eviction in order for the Board to conclude that the procedure adopted by the Landlord of giving her voidable and void notices of eviction is void for uncertainty and a nullity. Because it is a logical tautology that statements that are inconsistent are confusing, there can be no contradiction by way of testimony from a Tenant or in any other way that would make the tautology untrue. Indeed, it might be interesting to have such testimony from a tenant but it would be a frivolous and vexatious exercise.

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13. The Landlord made reference to the interim decision in TSL-97995-18-IN (Re) by a Vice-Chair, who has since left the Board, in which she disagreed with the original decision in essence because she was informed the Landlord has engaged in a longstanding practice of making a tenant’s impugned conduct common to all three notices when only the N5 notice provides that in order to avoid eviction a tenant has 7 days to stop the activities or correct the complained about behaviour but the N6 and N7 notices do not permit a tenant to avoid eviction by stopping the complained of activities within 7 days. The review decision gave no reason why the logical tautology that was relied upon in SWL-42630-12 is incorrect.

14. With respect, I view this reasoning as avoiding the question regarding whether there is a logical tautology in delivering inconsistent notices of eviction.

15. Furthermore, one need only look to civil procedure adopted by the courts when an inconsistent pleading is delivered, unless it is presented in the alternative, to understand it is intolerable: see for example Zamani Homes v. 11025982 Ontario, 2015 ONSC 5590 (CanLII), 2015 ONSC5590 (CanLII) and BNP Paribas v. Bartlett, 2012 ONSC 5315 (CanLII). Accordingly, I decline to follow the decision in TSL-97995-18-IN (Re). I find the procedure adopted by the Landlord is void for uncertainty.

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21. Further, the rule of law requires that adjudicators apply the doctrine of stare decisis. Stare decisis is a legal principle that obligates courts and tribunals to follow historical cases when deciding a similar case. It commands adjudicators to treat like cases alike not just so that there be consistency but also so that adjudicators work together to articulate, establish and follow general legal norms so that there is constancy and predictability in the law. Accordingly, following sensible prior decisions of the Board does not amount to bias.

SWL-14168-18 (Re), 2018 CanLII 88624 (ON LTB)

1. The Landlord served the Tenant with a Notice to Terminate a Tenancy Early (N5) and a 10-Day Notice to Terminate a Tenancy Early (N7).

2. On February 25, 2018, the Landlord served the Tenant with a Notice to Terminate a Tenancy Early (N5). Since this was the first Notice to Terminate a Tenancy Early (N5) the Landlord served, the Tenant had 7 days in order to void that notice. Therefore, he had until March 4, 2018, to void the Notice to Terminate a Tenancy Early (N5) by complying. The Notice to Terminate a Tenancy Early (N5) was invalid, however, because it contained no details and had a termination date that was less than 20 days from the date it was given.

3. The Application to Terminate a Tenancy and Evict a Tenant (L2) also seeks termination based on the 10-Day Notice to Terminate a Tenancy Early (N7) served on February 22, 2018. The Tenant argued that the application should be dismissed because it was filed on February 26, 2018. I am satisfied that serving the Notice to Terminate a Tenancy Early (N5) after serving the 10-Day Notice to Terminate a Tenancy Early (N7) caused confusion by suggesting to the Tenant that he could void the notice by complying with the Notice to Terminate a Tenancy Early (N5), although the N5 was invalid.

TSL-12596-19 (Re), 2021 CaseLawNinja E (ON LTB)^Download

Landlord Application:

4. The Landlord served the Tenant with a Notice to End your Tenancy for Causing SeriousProblems in the Rental Unit or Residential Complex (N7) and a Notice to End your Tenancy for Interfering with Others, Damage or Overcrowding (N5). Both notices were issued on December 16, 2019 with different termination dates. The N5 Notice was voidable as it was the first N5 Notice.

5. The voidable date for the N5 Notice was December 23, 2019. The Landlord said the Tenant continued the conduct during the voiding period and failed to pay the damage amount claimed on the form. Therefore, I find the Tenant failed to void the notice.

6. The Tenant's Legal Representative argued the Landlords could not serve the Tenant with a first N5 and a N7 Notice at the same time because it would be confusing to the Tenants the first N5 Notice is voidable and the N7 Notice is not voidable. The Tenant submitted several orders from the LTB to support his position.

7. I have reviewed Order TSL-93538-18 and several other similar decisions and find that it is reasonable to conclude the Tenant would be confused by receiving a N5 Notice authorizing the Tenant an opportunity to void the notice and save the tenancy and at the same time serving the N7 Notice were there is no opportunity to void and the Tenant must vacate. How would the Tenant know what to do especially when the attached Schedule A to the notices are exactly the same and describe the same events and seek the same payment for damages.

8. Although the guidelines allow for the Landlords to serve several notices at the same time,it is important that while doing so the Landlord does not create confusion for the Tenant. In my view, giving a Tenant a voidable notice along with a non-voidable notice citing thesame issues is confusing. As a result, I find that I must dismiss the Landlords’ application.

9. Although I have dismissed the application, the Tenant should be advised that had the Landlord only filed the N5 Notice that the outcome may have been different. Given there has been no determination made on the merits of the Landlord’s claim, the Landlord is not precluded from serving a new notice should they choose to do so.

Danigelis v Rosacia, 2022 CanLII 83418 (ON LTB)

18. Arrears of rent are properly claimed under section 87 of the Act:

87 (1) A landlord may apply to the Board for an order requiring a tenant or former tenant to pay arrears of rent if,

(a) the tenant or former tenant did not pay rent lawfully required under the tenancy agreement; and

(b) in the case of a tenant or former tenant no longer in possession of the rental unit, the tenant or former tenant ceased to be in possession on or after the day subsection 18 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force. 2020, c. 16, Sched. 4, s. 18 (1).

19. The Act and the LTB’s procedures provides that a landlord may claim rent arrears under section 87 by filing an L1 application if also seeking termination for the arrears, and L9 application seeking arrears only, or an L10 application if seeking arrears after a tenant has vacated a unit.

20. Landlords have in the past attempted to assert that a tenant’s failure to pay rent constitutes substantial interference justifying service of an N5 notices of termination given under section 64 of the Act. I consider the order of Vice Chair Carey in TEL-73936-16 (Re), 2016 CanLII 88462 (ON LTB), at para 8, to be a succinct and authoritative statement of the Board’s approach to such efforts:

Although the failure to pay money to a landlord is arguably substantial interference with a lawful right, privilege or interest, a landlord cannot use section 64 of the Act to evict a tenant for non-payment of rent. This is because the Act sets out a comprehensive scheme applicable to proceedings for non-payment of rent. (For example, see sections 59, 74, 82, and 88.) It is a general rule of statutory interpretation that where the Act includes specific provisions that directly address a subject, it is not open to the Board to use more general provisions to deal with the same subject.

21. As section 88.1 mirrors section 64 in that both address a tenant’s conduct that substantially interferes with a lawful right, privilege or interest, a landlord, I consider that the same principle must be applied to attempts to claim arrears under section 88.1.

22. For the foregoing reasons, a claim for arrears is not properly brought by an application under section 88.1, and is dismissed.