Compensation Not Paid (N12 Defense)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2313
Page Categories:	Personal Use Application (LTB)
Citation:	Compensation Not Paid (N12 Defense), CLNP 2313, <https://rvt.link/a6>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/10/03

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

48.1 A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48. 2017, c. 13, s. 8.

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49.1 (1) A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if,

(a) the landlord gives the tenant a notice of termination of the tenancy on behalf of a purchaser under subsection 49 (1) or (2); and

(b) the notice of termination is given on or after the day the Protecting Tenants and Strengthening Community Housing Act, 2020 receives Royal Assent. 2020, c. 16, Sched. 4, s. 5.

(2) Despite section 18, the obligation to compensate the tenant under subsection (1) remains an obligation of the landlord who gives the notice of termination of the tenancy on behalf of the purchaser and does not become an obligation of the purchaser. 2020, c. 16, Sched. 4, s. 5.

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55.1 If the landlord is required to compensate a tenant under section 48.1, 49.1, 52, 54 or 55, the landlord shall compensate the tenant no later than on the termination date specified in the notice of termination of the tenancy given by the landlord under section 48, 49 or 50. 2017, c. 13, s. 9; 2020, c. 16, Sched. 4, s. 8.

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73.1 (1) If the landlord compensated the tenant under section 48.1, 49.1, 52, 54 or 55, as the case may be, in connection with a notice of termination under section 48, 49 or 50 and the Board refuses to grant an application under section 69 for an order terminating the tenancy and evicting the tenant based on the notice, the Board may order that the tenant pay back the compensation to the landlord. 2017, c. 13, s. 14; 2020, c. 16, Sched. 4, s. 14.

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Power of Board, eviction

83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a)  refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b)  order that the enforcement of the eviction order be postponed for a period of time.  2006, c. 17, s. 83 (1).

Mandatory review

(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).  2006, c. 17, s. 83 (2).

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No eviction before compensation, residential occupation, demolition, etc.

(4) The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 49.1, 52, 54 or 55, as the case may be. 2017, c. 13, s. 17; 2020, c. 16, Sched. 4, s. 17 (1).

190 (1) The Board may extend or shorten the time requirements related to making an application under section 126, subsection 159 (2) or section 226 in accordance with the Rules. 2006, c. 17, s. 190 (1).

(2) The Board may extend or shorten the time requirements with respect to any matter in its proceedings, other than the prescribed time requirements, in accordance with the Rules. 2006, c. 17, s. 190 (2).

O. Reg. 516/06: GENERAL under Residential Tenancies Act, 2006, S.O. 2006, c. 17

56. The following are time requirements that the Board may not extend or shorten under subsection 190 (2) of the Act:

1. All time requirements related to notice requirements for terminating tenancies.

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Barry v Vindis, 2024 ONLTB 72896

8. The Landlord has the onus of establishing all the facts necessary for the Board to make an order pursuant to section 69 of the Act. This includes establishing that the Landlord has compensated the Tenant as required by section 48.1 of the Act. Based on the submissions of the parties, however, I am not satisfied that the Landlord has met their obligation to compensate the Tenant.

9. First, the Landlord has not provided any evidence to indicate that the Tenant was advised of the Landlord’s position that the compensation provided in connection with the prior N12 satisfied the requirement of section 48.1 of the Act.

10. Second, the Landlord’s application LTB-L-087011-23 contains a document filed by the Landlord that demonstrates the Landlord explicitly demanded the return of the compensation paid in support of the prior N12 notice. The document supports the Tenant’s position that the Landlord did not, in fact, waive the Landlord’s potential entitlement to the return of compensation in order to “carry forward” the compensation to the new N12.

11. Third, I am persuaded by the decision of Vice-Chair Shea in SOL-20896-21, 2021 CanLII 139416 (ON LTB), which stands for the proposition that “In order to rely on the compensation provided to the Tenant in connection with the aborted N12 for the purposes of the second N12, the Landlords were required to clearly and unequivocally advise the Tenant prior to [the termination date] that the obligation to return the compensation was being waived.” I find that the facts of the matte before me are substantially similar to those in SOL-20896-21 and I see no basis to deviate or distinguish from the Board’s prior order.

12. As the Landlord has failed to prove that the Landlord clearly and unequivocally advised the Tenant prior to February 29, 2024 that the Landlord was waiving their potential claim to the compensation paid in support of the previous N12, I find that the Landlord has not compensated the Tenant as required by sections 48.1 and 55.1 of the Act.

13. In summary, the Landlord has not compensated the Tenant an amount equal to one month's rent and the termination date has passed. As a result, the Landlord's application must be dismissed.

6150 Yonge GP Inc. v Boxma, 2023 ONSC 2859 (CanLII)

[1] The appellant, Ms. Boxma, brings this appeal from an order of the Landlord and Tenant Board evicting her from her residential basement unit. The Board granted the eviction order on the basis that the respondent landlord sought to terminate the tenancy for the purpose of demolishing the rental unit.

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[6] Ms. Boxma makes the following submissions on appeal:

1. The Board erred by extending the time for the landlord to pay the required compensation.

2. Ms. Boxma was denied natural justice in that she was denied an opportunity to be heard in respect of the interim order.

[7] Pursuant to s. 210(1) of the Act, a person may appeal an order of the Board to this court, but only on a question of law.

[8] We are not persuaded that the Board committed any error of law in this matter. With respect to the extension of time to compensate Ms. Boxma, s. 190(2) of the Act authorizes the Board to extend time requirements with respect to any matter in its proceedings, other than the prescribed time requirements. “Prescribed” in this context means prescribed by Regulation. The time stipulated in s. 55.1 is not a “prescribed time requirement” under s. 56 of the General regulation under the Act, O. Reg. 516/06s.

[9] The Board member exercised his discretion to extend the time requirement in this case taking into account that the landlord clearly attempted to provide compensation prior to the termination date but Ms. Boxma delayed several months in cashing the cheque. He also took into account that Ms. Boxma was still in possession of the rental unit at the time of the hearing. It was open to the Board member and entirely understandable that he extended the time requirements in this case in the exercise of his discretion.

[10] Contrary to her other submission, Ms. Boxma was not denied procedural fairness with respect to the interim order extending time. She attended the February 17, 2022 hearing, where she provided testimony and made submissions before the Board. She was also given the opportunity to provide post-hearing submissions to confirm that she had received the required compensation in accordance with the Board’s interim order. There is no basis for her submission that she was denied an opportunity to be heard. This ground of appeal is without merit.

[11] The appeal is dismissed, with costs payable by the appellant to the respondent in the agreed upon amount of $10,000, inclusive, payable within thirty days.

Rivera v. Eleveld, 2022 ONSC 446 (CanLII)

[2] The Review Decision confirmed an order of Board Member Dawn Wickett terminating the Appellant’s tenancy and evicting her on the basis of her failure to pay rent. In making this order, Board Member Wickett made a preliminary finding - upheld on review by Board Member Aulbrook - that the Respondent’s Notice of Termination complied with s. 43(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

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[7] We agree with the decision of Board Member Wickett, as confirmed in the Review Decision. The RTA does not define “agent” and uses the term “agent” in many of its provisions that support a broad interpretation of that term. Elsewhere in the RTA, the legislation refers specifically to persons acting under the authority of the Law Society Act. Section 185 of the RTA, which applies to applications filed at the LTB, does so. When a landlord applies for relief to the LTB, the landlord must sign the application or authorize someone licensed under the Law Society Act to do so. The use of an “agent” is not permitted. Here, the property manager did not sign the application to commence proceedings at the LTB.

Berber v Twitty, 2021 CanLII 129834 (ON LTB)

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7.     I believe that one of the purposes of the requirement, when an N12 notice is served, to pay one month of compensation to a tenant on or before to the termination date is to ensure that the tenant has funds to enable the move. Once the tenant receives the notice of termination, he or she has the choice to move on or before the termination date and if the tenant receives compensation, the tenant has funds to facilitate the move. If the landlord fails to pay compensation by the termination date, the tenant does not have these funds for the move and so may not have a realistic choice to move. In other words, the failure to pay compensation on time may frustrate the tenant’s choice. In recognition of this, landlords should be held strictly to the deadline for payment in s.55.1 of the Act.