Talk:Motion to Void (Per Tenancy Agreement)

Discussion

• What does it mean "...during the period of the tenant's tenancy agreement..."?

Analysis of Section 74 (11) and (12)

Section 74 (11) of the RTA states as follows:

74 (11) A tenant may make a motion to the Board, on notice to the landlord, to set aside an eviction order referred to in subsection (3) if, after the order becomes enforceable but before it is executed, the tenant pays an amount to the landlord or to the Board and files an affidavit sworn by the tenant stating that the amount, together with any amounts previously paid to the landlord or to the Board, is at least the sum of the following amounts:

1. The amount of rent that is in arrears under the tenancy agreement.

2. The amount of additional rent that would have been due under the tenancy agreement as at the date of payment by the tenant had notice of termination not been given.

3. The amount of NSF cheque charges charged by financial institutions to the landlord in respect of cheques tendered to the landlord by or on behalf of the tenant, as allowed by the Board in an application by the landlord under section 87.

4. The amount of administration charges payable by the tenant for the NSF cheques, as allowed by the Board in an application by the landlord under section 87.

5. The costs ordered by the Board. 2006, c. 17, s. 74 (11); 2009, c. 33, Sched. 21, s. 11 (1).

The only limit to the application of section 74 (11) is found in section 74 (12) of the RTA which states:

(12) Subsection (11) does not apply if the tenant has previously made a motion under that subsection during the period of the tenant’s tenancy agreement with the landlord. 2006, c. 17, s. 74 (12).

The question that has to be asked is, what is meant by the phrase "...during the period of the tenant’s tenancy agreement..."? In Hills v. Canada (Attorney General), 1988 CanLII 67 (SCC), at paragraph 106 the Supreme Court of Canada states in part

... In reading a statute it must be "assumed that each term, each sentence and each paragraph have been deliberately drafted with a specific result in mind. Parliament chooses its words carefully: it does not speak gratuitously"...[Emphesis Added]

In Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), (1998) 1 SCR 27, the Supreme Court of Canada stated the modern rule of statutory interpretation as follows:

21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

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.

Applying the rules of statutory interpretation from the Supreme Court of Canada, when parliament drafted section 74 (12) of the RTA they clearly did not intend to have the phrase "tenancy agreement" used as a synonym for "tenancy".

Tenancy v. Tenancy Agreement

A tenancy can be understood as the total length of time a tenancy occupies a rental unit. A tenancy agreement on the other hand is a specified period that a tenant is authorized to occupy a rental unit. It is important to understand that a tenancy can consist of multiple tenancy agreements, and each of those tenancy agreements consists of different tenancy periods.

The RTA defines a tenancy agreement as follows:

2 (1) In this Act,

...

“tenancy agreement” means a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit; (“convention de location”)

Most tenancy agreements start with a fixed-term tenancy agreement. For example, a tenancy may start on January 1, 2020, and end on December 31, 2020. During the period of the fixed term tenancy agreement the tenant is entitled to certain statutory protections such as the tenant cannot be terminated on a no fault basis, or for persistent late payment of rent. The landlord is also entitled to certain statutory protections such as a tenant can only recover once from a non-payment of rent order during that tenancy agreement period.

According to section 13 of the RTA:

13 (1) The term or period of a tenancy begins on the day the tenant is entitled to occupy the rental unit under the tenancy agreement. 2006, c. 17, s. 13 (1).

To better understand the differences between a tenancy and a tenancy agreement period let's take a look at section 38 of the RTA.

Fixed-Term Tenancy Agreement to Monthly Tenancy Agreement

Section 38 states as follows:

38 (1) If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (1).

(2) If the period of a daily, weekly or monthly tenancy ends and the tenancy has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it for another day, week or month, as the case may be, with the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (2).

(3) If the period of a periodic tenancy ends, the tenancy has not been renewed or terminated and subsection (2) does not apply, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy, with the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (3).

Section 38 addresses the following issues and considerations with respect to the function of a tenancy agreement:

1) What happens at the end of a tenancy agreement,

2) The method by which a tenancy agreement is renewed as a function of law.

We are going to examine section 38 of the RTA through the lens of a fixed-term tenancy agreement. Using our above example of a one year fixed term tenancy agreement, section 38 (1) states:

38 (1) If a tenancy agreement for a fixed term ends and has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it as a monthly tenancy agreement containing the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (1).

The next logical question that has to be addressed is, what is meant by the phrase "...a monthly tenancy"? To answer that question we have to look at section 38 (2) of the RTA which states:

(2) If the period of a daily, weekly or monthly tenancy ends and the tenancy has not been renewed or terminated, the landlord and tenant shall be deemed to have renewed it for another day, week or month, as the case may be, with the same terms and conditions that are in the expired tenancy agreement and subject to any increases in rent charged in accordance with this Act. 2006, c. 17, s. 38 (2).

Implicit in all tenancy agreements is a term of the tenancy, meaning that a given tenancy agreement only covers a fixed period of time. The term or period of a fixed-term tenancy is clear on its' face, but the concept of a monthly tenancy agreement, or a month-to-month tenancy agreement is a bit come complex.

Section 38 (1) of the RTA is clear that if a tenancy is not terminated at the end of the fixed term then the tenancy agreement is "renewed" as a monthly tenancy agreement. Montly tenancy agreement are governed by section 38 (2) of the RTA. According to section 38 (2) the term or period of a monthly tenancy only covers a period of one month. If at the end of the tenancy agreement period of one month, the tenancy agreement is not terminated then the tenancy agreement is renewed for another period or term of one month.

Each renewal of the tenancy agreement under the function of section 38 (2) creates a new tenancy term or period.

The Impact of Section 38 (2) on Section 74 (12) of the RTA

Section 74 (12) makes it clear that section 74 (11) can only be invoked once "...during the period of the tenant’s tenancy agreement with the landlord...", but as you can see from the above analysis, the term or period of a monthly tenancy is only a single month in length. The practical effect of section 38 (2) on section 74 (12) means that as long as a tenant does not make an application to void more then one time in a single month the tenant is free to make as many applications under section 74 (11) as they want within the limits of the above framework.

To contract the above, if a landlord wanted to ensure that a tenant could only make a single application under section 74 (11) within a given time period, the landlord would have to lengthen the period of the tenancy agreement. By lengthening the period of a given tenancy agreement the landlord can restrict how often a tenant can invoke their rights under section 74 (11).

In practical terms, where there is a monthly tenancy agreement or a month-to-month tenancy agreement in place, the tenant is entitled to invoke their rights under section 74 (11) as often as they want during their tenancy, without facing any practical limitations imposed by section 74 (12).