Voiding Order (s.74(4)) (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	2290
Page Categories:	Appeals, Section 74 (RTA), Payment of Rent (LTB)
Citation:	Voiding Order (s.74(4)) (LTB), CLNP 2290, <>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2023/10/23

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Oz v. Shearer, 2023 ONSC 5738 (CanLII)

[14] On August 24, 2023, the Tenants filed another Notice of Appeal. This Notice of Appeal related to an August 22, 2023 endorsement of the LTB in relation to the Tenant’s motion for an order voiding the LTB eviction order on the ground that the Tenant had made full payment of the arrears “prior to the original order becoming enforceable”.

[15] The Tenant’s motion before the LTB related to s. 74 of the Residential Tenancies Act. Section 74(4) of the Act provides that “an eviction… is void if the tenant pays to the landlord or to the Board, before the order becomes enforceable” (emphasis added) the amount of rent and arrears found owing by the LTB as well as certain additional administrative charges and costs.

[16] Section 74 provides for two procedures for obtaining a voiding order. The s. 74(6) procedure applies where full payment is made “before the order becomes enforceable”. When a motion to obtain a voiding order is made “before the order becomes enforceable”, the motion can be brought without notice to the Landlord and the LTB can make its decision without holding a hearing: s. 74(5) – (8). The onus is then on the Landlord to bring a motion to the LTB to have the voiding order set aside: s. 74(9) – (10).

[17] If the tenant pays the amount of arrears and other charges and expenses “after the order becomes enforceable but before it is executed”, the tenant can still bring the motion for a voiding order, but must give notice to the landlord: s. 74(11), and the motion must be referred to a hearing: s. 74(14).

[18] In its motion before the LTB, the Tenant took the position that he had made relevant payments before the Order became enforceable, and he therefore did not have to give Notice to the Landlord. The LTB’s decision of August 22, 2023 did not decide whether or not he was entitled to a voiding order, but decided that the s. 74(6) procedure did not apply because the payment was made after the eviction order became enforceable. The LTB stated:

The Tenant has submitted a second motion to void in relation to this order issued on January 12, 2023.

The Tenant alleges they are seeking a voiding order under section 74(6) of the Act.

The order required that the Tenant pay $27,651.88 on or before January 15, 2023, the date in which the order became enforceable.

The first motion to void indicated that the Tenant paid $29,670.76 to the Landlord on January 31, 2023.

As a result, the Board was not able to issue a voiding order as the payment was not made on or before January 15, 2023 in accordance with the order.

Therefore, this second request must be denied. Where payments to void an order are made after the order becomes enforceable, and before the Sheriff enforces the order, then the motion to void must be referred to a hearing to determine if the Landlord has incurred additional expenses after the order became enforceable and to determine if the Tenant has previously filed a motion to void with the Board.

[19] Thus, the LTB did not decide the merits of the Tenant’s motion, but only that the Tenant had to bring his motion under s. 74(11) on notice to the Landlord.

[20] The Tenant’s Notice of Appeal alleges that the LTB misinterpreted the term “enforceable” in s. 74 of the Residential Tenancies Act.

[21] It is important to note that the August 22, 2023 LTB Order is not an eviction order. It did not purport to evict the tenant, it set out the procedure for the Tenant to follow if he sought to void the eviction order. The eviction order was issued by the LTB on January 3, 2023, and has already been appealed and is subject to a statutory stay pending the decision of the Divisional Court.

[22] Staying the August 22, 2023 LTB order would not, therefore, stay an eviction order. In my view, the stay of the August 22, 2023 LTB order would have no practical effect, since there was nothing to be enforced. Where the LTB decision simply dismisses a request for relief, a “stay” of the Order has no practical effect.

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[30] The Notice of Appeal of the August 22, 2023 LTB decision must, therefore, be quashed.

[31] As a result, the statutory stay of the LTB endorsement is also terminated: Arnold v. Lulu Holdings Inc., 2021 ONSC 8125, at para. 39.

[32] While the Tenant is granted an extension to bring the motion for leave to appeal the August 22, 2023 LTB decision, if the Tenant intends to seek leave to appeal, he must proceed to do so expeditiously. Accordingly, for the purposes of the Rules relating to applications for leave to appeal to Divisional Court, the timelines set out at Rule 61.03(1) will commence the day of the release of this Endorsement. Motions for leave to appeal from a decision of an administrative tribunal are heard by a single judge pursuant to s. 21(3) of the Courts of Justice Act, R.S.O 1990, c. C. 43.