Substantial Compliance (Affidavit N12)

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Date Retrieved:	2024-11-01
CLNP Page ID:	2365
Page Categories:	[Hearing Process (LTB)]
Citation:	Substantial Compliance (Affidavit N12), CLNP 2365, <https://rvt.link/bl>, retrieved on 2024-11-01
Editor:	Sharvey
Last Updated:	2024/08/23

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

71.1 (1) A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).

(2) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).

...

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year; or

(b) a notice of termination under section 49, unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use. 2017, c. 13, s. 13.

212 Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient. 2006, c. 17, s. 212.

Legislation Act, 2006, S.O. 2006, c. 21, Sched. F

84 Deviations from a form whose use is required under an Act do not invalidate the form if,

(a) they do not affect the substance and are unlikely to mislead; and

(b) the form is organized in the same or substantially the same way as the form whose use is required. 2006, c. 21, Sched. F, s. 84.

Price v. Turnbull's Grove Inc., 2007 ONCA 408 (CanLII)

[24] The Supreme Court of Canada and this court have frequently cited with approval the following approach to statutory interpretation, as set out in Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See for example, Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at paras. 21 and 23; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26; Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, at para. 106; Canada Post Corp. v. Key Mail Canada Inc. (2005), 2005 CanLII 30837 (ON CA), 77 O.R. (3d) 294, [2005] O.J. No. 3653 (C.A.), at para. 16, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 422.

[25] Under this interpretative approach, the import of ss. 127(1), 127(4) and 141 of the Act must be ascertained by reference to the context in which they appear in the Act, the language employed by the legislature, and the scheme and purpose of the Act.

TSL-75466-16 (Re), 2016 CanLII 71279 (ON LTB)

6. The applicable statutory notice provisions above are mandatory in nature and require strict compliance (Re Bianchi et al. and Aguanno et al., 1983 CanLII 1967 (ON SC)). In Re Bianchi, supra, the termination date was not at the end of the term as mandatorily required by the Act, so the Divisional Court found the notice defective. Here, the identification of the rental unit is, similarly, a mandatory requirement of the Act.

7. I considered s. 212 of the Act, which provides that substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient. However, in my opinion, while the application of s. 212 to situations of non-compliance with non-mandatory requirements of the Act may be appropriate, a parallel application of that section to mandatory legislative requirements amounts to an error in law, could not have been an exercise contemplated by the drafters of the legislation and would lead to absurd results. For example, in the instant case, given that at the time when the N4 notice was served, the unit was not designated as “2A”, the application of s. 212 would allow the Landlord to bring the unit into harmony with the N4 notice after the notice was served.

CET-28082-12 (Re), 2013 CanLII 4275 (ON LTB)

6. However, in some circumstances, it is possible to find that a notice that is not in the approved form substantially complies with the requirements of the Act. This is pursuant to section 212 of the Act. This substantial compliance does not apply to the email.

7. Subsection 43(1) of the Act sets out the mandatory requirements of a notice to terminate a tenancy. The notice must identify the rental unit. The Landlord’s email does not identify the rental unit. It must be signed by the person giving the notice. The Landlord’s email is not signed. Therefore, the email does not substantially comply with the requirements of the Act.

8. As a result, the first requirement of subsection 57 (1) (a) of the Act has not been met. The Landlord did not give the Tenants an N12 notice of termination or any valid notice of termination.

CEL-02248 (Re), 2007 CanLII 75937 (ON LTB)

Section 212 of the Act states:

212. SUBSTANTIAL COMPLIANCE SUFFICIENT - Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.

The aspects of s. 43 of the Act are mandatory and the purpose is to ensure that the recipient of the notice is aware of the information. Guideline 10 states that when making a determination of whether a notice is adequate one should consider if “it communicates the necessary elements clearly enough that a tenant would be expected to understand it and the options they have.”

The Legislation Act (the ‘LA’)

The LA assists in determining the substantial compliance of forms. Section 46 of the LA states that “[e]very provision of this Part applies to every Act and regulation.” It expresses the test to determine substantial compliance of a form. Section 84 provides that:

Deviations from a form whose use is required under an Act do not invalidate the form if,

(a) they do not affect the substance and are unlikely to mislead; and

(b) the form is organized in the same or substantially the same way as the form whose use is required.

Both of these elements must be met in order for the notice to be valid

Analysis

In beginning the analysis of the issue, I took into consideration the approach as cited with approval in the Supreme Court of Canada and the Court of Appeal for Ontario. The “approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (Price v. Turnbull’s Grove Inc., 2007 ONCA 408 (Ont. C.A.) par. 24).

The Act’s purpose, as stated in s. 1 of the Act, is to “provide protection for residential tenants from … unlawful evictions … to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.” One must take an even-handed approach when determining the issue before us and cannot automatically conclude that since the Old N12 was revised it must be non-compliant with the Act. Before a conclusion such as this can be made, proper analysis must be conducted, which includes answering the question of whether the Old N12 communicates to a tenant the necessary elements, as stipulated in s. 43 of the Act, clearly enough that a tenant would be expected to understand it and the options they have.

The Tenants did not raise an argument of whether the Old N12 fails to comply with s. 43(1) or s. 43(2)(b). For this reason, my analysis for the first preliminary issue will focus only on s. 43(2)(a) and s. 43(2)(c).

TSL-29748-12 (Re), 2012 CanLII 98084 (ON LTB)

16. With respect to the decision in Board file TNL-18527 I would point out that no Board decisions are binding on other Members of the Board. If they are particularly persuasive then a Member might choose to follow them, and certainly it is desirable for an administrative tribunal to work towards consistent interpretation of the law in its decisions. However, each Member must nonetheless come to his or her own conclusions.

17. In TNL-18527 the tenant challenged a notice of rent increase on the ground that it contained a number of typographical errors including one with respect to the new rent being charged. The notice as served stated the new rent would be $1,102.58 when the correct amount when properly calculated would have been $1,102.38. The Member found that this notice substantially complied with the requirements of the Act and was valid. The only reason given for this was: “Any errors are not misleading and do not confuse the essential information in the notice.” With all due respect to the Member, I do not agree with this reasoning or with the result she reached.

18. I say this for two primary reasons. First of all the wording of section 212 is paramount: “Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.” I would point out that this provision does not say substantial compliance with the Act is sufficient; rather, it says substantial compliance with the “contents of forms, notices or documents” is sufficient. In other words, what section 212 means is that the mandatory requirements of the Act are not up for debate, but mistakes or typographical errors in filling out forms will not invalidate an otherwise valid document.

19. Second, if it is accepted (as the Board Member in TNL-18527 accepted) that a mistake with respect to a mandatory requirement of the Act in a notice can somehow be waived or forgiven, the entire legislative scheme then becomes a shifting sand of unknowable requirements. Nothing will be certain; no one will be able to figure out if a notice is valid or not. A Member would have to decide the subjective question of whether or not the notice was too misleading or too confusing in each instance, including those cases where the recipient of the notice was not present to testify as to what they thought it meant. Such a result would defeat one of the purposes of the Act, which is to informally and efficiently resolve disputes between landlords and tenants as it would inevitably lead to endless hearings about what the recipient of a notice thought it meant.