Persistent Late Payment of Rent (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	904
Page Categories:	[Defective Notice (LTB)], [Payment of Rent (LTB)]
Citation:	Persistent Late Payment of Rent (RTA), CLNP 904, <https://rvt.link/6l>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/06/07

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

58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

1. The tenant has persistently failed to pay rent on the date it becomes due and payable.

2. The rental unit that is the subject of the tenancy agreement is a rental unit described in paragraph 1, 2, 3 or 4 of subsection 7 (1) and the tenant has ceased to meet the qualifications required for occupancy of the rental unit.

3. The tenant was an employee of an employer who provided the tenant with the rental unit during the tenant’s employment and the employment has terminated.

4. The tenancy arose by virtue of or collateral to an agreement of purchase and sale of a proposed unit within the meaning of the Condominium Act, 1998 in good faith and the agreement of purchase and sale has been terminated. 2006, c. 17, s. 58 (1).

(2) The date for termination specified in the notice shall be at least the number of days after the date the notice is given that is set out in section 44 and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 58 (2).

Parent v Girard, 2021 CanLII 139812 (ON LTB)

4. The N8 that was served on the Tenant provides:

1. RENT IS DUE ON THE FIRST DAY OF EACH MONTH.

2. YOU HAVE BEEN LATE FOR THE MONTHS OF JANAUARY, FEBRAURY, MARCH, APRIL AND MAY, 2021

...

5. In Ball v Metro Capital Management Inc. [[2002] OJ No 5931 (Div Crt)] the Divisional Court considered subsection 43(2) of the Act and found that the purposes of requiring that a landlord provide reasons and details on a notice given pursuant to the Act was to:

(a) allow the tenant to be in a position to know the case to be met before the Board; (b) allow the tenant to decide whether or not to dispute the allegations made by the landlord; and, in the case of a voidable notice, (c) allow the tenant to stop the conduct or activity or correct the omission. The Divisional Court found that, to be in compliance with subsection 43(2), a notice should include dates and times of the alleged conduct, together with a detailed description of the alleged conduct. [Ball v Metro Capital Management Inc. [2002] OJ No 5931 (Div Crt), paras 10 and 12.]

...

8. Applying the test in Ball, I find that a N8 that says only that rent is due on the first of the month and that the tenant has been late in paying rent X of Y months or has been late on Z months does not satisfy the requirements of subsection 43(2). As noted by Vice-Chair Carey in TEL-85488-17:

….at a minimum, a notice under s. 58(1)(a) must inform the tenant that the landlord is asserting the tenant repeatedly pays the rent late and provide sufficient details of those late payments so the tenant knows the case to be met and can decide whether or not to dispute the allegations before the Board. [TEL-85488-17, 2017 CanLII 93838 (ON LTB), para 12. See also TEL-05853-19, 2020 CanLII 61355 (ON LTB), TEL-85490-17. 2017 CanLII 94114 (ON LTB), TEL-91067-18, 2018 CanLII 113137 (ON LTB)]

9. I find that to satisfy the requirements of subsection 43(2) and Ball, a N8 must provide the date on which the landlord asserts that rent was actually paid in the months that the landlord asserts that tenant paid the rent late. In my view, that information is necessary for the tenant to be in a position to know the case to be met before the Board and to decide whether or not to dispute the allegations made by the landlord in support of the request that the tenancy be terminated and the tenant evicted.

...

12. Mr. Lammers argued that he was ‘astounded’ by my decision vis-à-vis subsection 43(2) because in his 27 years of practice he has never had any issues with using a N8 in the form of the N8 that was served on the Tenant in this case. I cannot speak to Mr. Lammers personal experience, but there are a number of orders made by the Board that support the proposition that a N8 must include greater detail than was included in the N8 that was served on the Tenant in this case. [See, for example, TNL-63642-14, 2015 CanLII 9323 (ON LTB), TEL-75061-16, 2017 CanLII 48930 (ON LTB), TEL-85490-17, 2017 CanLII 94114 (ON LTB), TEL-85488-17, 2017 CanLII 93838 (ON LTB), TEL- 05853-19, TEL-91067-18, 2018 CanLII 113137 (ON LTB) and 2020 CanLII 61355 (ON LTB)] I should also note that a particular legal representative’s past experience before the Board is not particularly helpful in terms of supporting a legal position.

13. Based on the foregoing, I find that the N8 served by the Landlord does not satisfy the requirements of subsection 43(2) of the Act and, as a result, this application must be dismissed.

Ha v Pham, 2021 CanLII 82477 (ON LTB)

2. The N8 notice is defective because the termination date listed on the notice is not the day a period of the tenancy ends as required by section 58(2) of the Residential Tenancies Act, 2006 (the ‘Act’). The tenancy is a monthly tenancy. The period of the tenancy begins on the first of the month and goes to the end of the month. In this case, the termination day the period of the tenancy ends is the last day of the month. Therefore, the termination date on the N8 notice must be the last day of the month not the first day of the month as in this case.

TSL-94768-18 (Re), 2018 CanLII 143808 (ON LTB)

5. First, the Divisional Court has affirmed, on numerous occasions, that eviction is a remedy of last resort. To take just two examples:

Eviction should be ordered as a last resort after carefully considering Section 84 [now 83] of the Act (Britannia Glen Co-operative Homes v. Singh, cited in Toronto Community Housing Corp. v. Thompson, [2003] O.R.H.T.D. No. 145).

To put somebody out of their home must, in my view, call for clear and compelling circumstances that it is no longer possible for the arrangement to continue (Langford v. Phipps, [1992] O.J. No. 4184 (Ont. Gen. Div.).

6. In other words, eviction should only be ordered if it is not possible to bring a tenancy back into good standing. In a case of persistent late payment, bringing the tenancy back into good standing is a simple matter of the Tenant starting to pay on time. Where that is possible, it should be done rather than terminating the tenancy.

7. Second, compared to the other reasons a tenancy can be terminated, persistent late payment is a minor issue. In my view, it should not serve as a reason to terminate the tenancy unless it really cannot be remedied. Landlords are entitled to be paid on time, but eviction would be a serious consequence to a comparatively minor wrong.

8. Third, the prejudice to a landlord that results from a prompt payment order is minimal. The order ensures that the rent will immediately start to be paid on time. If any payment is late, the Landlord can obtain an eviction order under section 78 of the RTA.

9. For all these reasons, tenants should generally be given an opportunity to start paying on time where they promise to do so, as is the case here. There will, of course, be exceptions. For example, if a prior prompt payment order has not been sufficient to resolve the issue, or if the evidence clearly establishes that a tenant cannot or will not start paying on time, then eviction may be warranted. Those are not the circumstances of this case.

SWL-01652-09 (Re), 2009 CanLII 79009 (ON LTB)

8. The Landlord’s Notice of Termination for persistent late payment of rent (Form N8) lacked sufficient particulars about the dates on which rent was to be paid and when it was, in fact, paid throughout the period claimed by the Landlord. The N8 Notice is invalid and eviction cannot be ordered under it. The L2 application to evict for persistent late payment of rent must, therefore, be dismissed.

TEL-91067-18 (Re), 2018 CanLII 113137 (ON LTB)

3. Pursuant to subsection 58(1) of the Residential Tenancies Act, 2006 (the ‘Act’) a Landlord may file a notice of termination for persistent late payment of rent, however, a notice must set out details of when the late payments occurred so that the Tenant understands the grounds for the application.

4. Ball v. Metro Capital Property, [2002] O.J. No. 5931 (“Ball”), stands for the premise that a notice must be sufficiently detailed to allow a tenant to be in a position to know the case that must be met.

5. MacDougall J. wrote in Ball that, “Particulars should include, dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct...” The Court went on to state that the various purposes for requiring a party to provide reasons and details include the responding party’s need “to know the specific allegations made so that she/he can be in a position to know the case that must be met; to decide whether to dispute the allegations made before the Tribunal; and to consider whether to stop the conduct or activity or correct the omission…”

6. As the Landlord’s N8 was not accompanied with a ledger sheet, and did not set out specific dates of late payment, the Notice does not comply with the Act and is therefore invalid.

TEL-01409-19 (Re), 2019 CanLII 89726 (ON LTB)

4. The basis of this part of the application is an N8 notice of termination for persistent late payment of rent which is served pursuant to subsection 58(1) of the Residential Tenancies Act, 2006 (the 'Act'). The Landlords allege the Tenant was persistently late in making their rent payments for the period between April 2018 and April 2019.

5. At the hearing, the Landlords testified that in fact, the Tenant was late in making rent payments five times in this period: for the months of April and May 2018 by two days; in November 2018 by two days; and in January 2019 by three days. Starting April 2019, the rent was partially paid and starting May 2019, the rent was not paid at all.

6. This pattern of payment is not in my view constitute persistent late payment of the rent. More importantly, the N8 notice of termination fails to correctly identify the period in which the Tenant was persistently late in paying their rent; while it provides a range of time alleging eight dates of late payments, the Landlord’s oral testimony contradicts this.

7. In essence, Landlord’s notices lack the requirement of “reasons and details” as further defined in the Divisional Court decision Ball v. Metro Capital Property, [2002] O.J. No. 5931.

8. Ball v. Metro Capital Property requires that that notices of termination should contain sufficient particulars about a tenant’s behaviour and should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”.

9. The behaviour in this notice is with respect to the Tenant’s history of late payment of rent, which the Landlord has failed to establish.

10. Thus, the Landlord’s application for an order terminating the tenancy and evicting the Tenants for persistent late payment must be dismissed.

TEL-85490-17 (Re), 2017 CanLII 94114 (ON LTB)

7. The application for an order terminating the tenancy and evicting the Tenants for persistent late payment must be denied for the reasons that follow.

8. Pursuant to subsection 43(2) of the Act a notice of termination must set out the reasons and details respecting the termination.

9. Pursuant to the Divisional Court’s decision in Ball v. Metro Capital Property, [2002] O.J. No. 5931, a notice that fails to provide sufficient details is void. At paragraph 10 the Court states in part that there are several purposes for requiring the landlord to provide the reasons and details. The tenant needs to know the specific allegations in order to be in a position to know the case that must be met and to decide whether to dispute the allegations made against the tenant before the Board.

10. This notice was issued pursuant to paragraph 58(1)(a) of the Act which says:

58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

1. The tenant has persistently failed to pay rent on the date it becomes due and payable.

11. So at a minimum, a notice under s. 58(1)(a) must inform the tenant that the landlord is asserting the tenant repeatedly pays the rent late and provide sufficient details of those late payments so the tenant knows the case to be met and can decide whether or not to dispute the allegations before the Board.

12. Here, the notice of termination served on the Tenants contains no particulars on its face except in a schedule attached to the Board’s standard form.

13. The schedule starts with September 1, 2016. It indicates the rent charged for September, 2016 was $1,198.12. It then sets out a series of payments made in September with the dates of those payments.

14. The problem is the payments made in September, 2016 total $2,475.36 which is well in excess of the rent the schedule indicates was due. In fact the schedule seems to be indicating that September’s rent was paid one day late and the rent for October, 2016 was paid in advance as was the rent for November, 2016 through to March, 2017.

15. Then it seems to indicate the rent was short for April, May, June and perhaps July, 2017.

16. So the information on the schedule seems to indicate that for the eleven month period starting September, 2016 the Tenants were late paying rent perhaps five times out of eleven.

17. That is not in my view persistent late payment of the rent. More importantly, this information is not actually true nor is it what the Landlord intended to convey on its notice.

18. The schedule also provides references to applications to the Board for non-payment of the rent but no details about them.

19. As I understand it the Tenants did not have a zero balance for the period starting September 1, 2016 and what the Landlord was trying to convey in its notice was that the Tenants have been late paying rent every month during the period in question. But that is not what the notice actual indicates.

20. As a result, I am not satisfied that the notice of termination for persistent late payment contains sufficient details for the Tenants to know the case to be met and to make an informed decision as to whether or not dispute the allegations. It is literally impossible to know from this notice what the true allegation actually is.

21. Therefore I find the notice of termination to be invalid and the Landlord’s application for an order terminating the tenancy and evicting the Tenants for persistent late payment must be dismissed.

TSL-49814-14 (Re), 2015 CanLII 15596 (ON LTB)

6. The Tenant submitted that the N8 notice was defective because the termination date was not the end of the term or a period of the tenancy.

...

13. I would disagree with the Tenant on this point. The fact that the Landlord included a month in error does not nullify the N8 notice. The issue that must be determined by the Board is whether the Tenant paid his rent on time and if not, would the number of times he failed to do so meet the threshold of being “persistently late” in paying his rent. With respect to the notice, the issue is whether or not it contains sufficient particulars that the Tenant knows the case to be met.

EAL-59006-16 (Re), 2016 CanLII 88069 (ON LTB)

11. The Tenant’s legal representative argued at the hearing that in his view, two months of paying rent late (as indicated on the N8) did not create the basis for accusing the Tenant of persistently paying his rent late.

13. Ultimately, there were three reasons why I determined that any condition limiting or terminating the tenancy on the basis of the N8 would be inappropriate.

14. First, the Tenant has a disability, and I accept that his disability contributed to the situation in which the rent was paid late. I also observed at the hearing and from the documentation supplied that his legal representative is working with the Tenant to ensure that future rent is paid on time.

15. Second, I note that the N8 alleging persistently late payments of rent was served by the property manager just two days after the incident outlined in the N7, in which the same property manager wrote of her fear of the Tenant. This circumstantial evidence suggests that the “persistent late” allegations were lodged more as a result of the Tenant’s conduct with the property manager who then wanted him to move out of the residential complex, rather than because he had then been late paying his rent twice.

16. Finally, I note that at the time the N8 was served, the Tenant had paid rent late twice over two months in a tenancy that was more than a decade old. This is not a persistent late payment of rent, it’s two late payments. Had the Ontario legislature wanted subsection 58(1) of the Act to be so restrictive as the Landlord requests that I interpret it, the legislators could have written that a landlord could serve a notice of termination where “a tenant has failed to pay rent on two or more occasions” or something similar. It did not. It used the term “persistently”, which in my view suggests a pattern of continued late payments for a time that is significant to the tenancy in question. In this tenancy, two – even three - months of late payment are not “persistent”.

17. On this basis, the N8 portion of the Landlord’s application will be dismissed.

SWL-32001-19 (Re), 2019 CanLII 89687 (ON LTB)

2. The Landlord alleged that the Tenant has paid the rent late ten times in the last 12 months from April 2018 to March 2019 when the Tenant was served with the N8.

3. The Tenant stated that in 2014 when his wife was diagnosed with cancer, he spoke with the property manager who gave permission for him to pay the rent anytime he could.

4. In June 2016, he was served with an N8 for persistent late payment and when he spoke with the Landlord’s Legal Representative, TH, she refused to honour the permission he had received from the previous property manager who no longer worked for the Landlord. In July 2016, he was served with another N8 and by November 2016, the Landlord filed an application against him for persistent late payment although that application was subsequently dismissed.

5. Based on all the evidence, the Tenant claims to have received permission from a previous property manager allowing him to pay the rent late every month. However, the Landlord made it clear that was no longer acceptable when the Tenant was served with several notices in 2016 for persistent late payment. The Tenant not only paid the rent late ten times prior to March 2019, when the N8 was served, but he has also failed to pay the rent for the months of April, May, June and July 2019. Therefore, I find that the Tenant has persistently failed to pay the rent on the date it was due.

TSL-10061-19 (Re), 2019 CanLII 134565 (ON LTB)

8. The Landlord L K (‘LK’) testified that the rent is due on the first of each month. LK testified that each rent payment in the past twelve months was paid late by the Tenant. The Tenant agreed that all of his rent payments in the last year were paid late.

9. The Tenant testified that the rent payments were generally between two to three days late, with the exception of a few payments which were paid later than three days after the due date. The Tenant testified that he believed that the law permitted him to pay the rent a few days later than the due date and that it was his belief that rent could be paid within the first 7 days of the month and would not be considered late.

10. The Tenant testified that his rent is generally paid a few days late as he is paid by cheque by his company and at times he does not receive his cheque on a timely basis from his boss and has to follow up with him and personally attend at his office to collect his pay.

11. On the basis of the evidence before me, I find that the Tenant has persistently failed to pay the rent on the date it was due.

Section 83 considerations

12. The Landlords sought a termination of the tenancy for December 31, 2019 as the Tenant has promised to pay the rent on time in the past and has not. The Tenant requested that his tenancy be preserved and that he be given another chance to pay his rent on time as he now understood that it had to be paid on the first of the month.

13. The Tenant testified that he has taken on extra hours at work and is now able to have a month’s rent on hand ahead of the first of the month, so that if his pay cheque is late, he can still ensure that his Landlords receive the full rent payment on or before the first of every month.

14. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

15. I find that a prompt payment order is an appropriate resolution which is often granted by this Board where a tenant has persistently paid their rent late.

16. The Divisional Court has found on several occasions that eviction should be ordered as a remedy of last resort, only be ordered if it is not possible to bring a tenancy back into good standing. [Britannia Glen Co-operative Homes v. Singh, cited in Toronto Community Housing Corp. v. Thompson, [2003] O.R.H.T.D. No. 145, Langford v. Phipps, [1992] O.J. No. 4184 (Ont. Gen. Div.)]

17. In persistent late payment cases a tenancy can be brought into good standing where the tenant demonstrates a change in circumstances or practices that can return the tenancy to good standing. In the present case, the Tenant testified that he now has the means to pay the rent on time and understands his obligation to do so.

18. It was uncontested that there are no arrears of rent owing, only the application filing fee remains outstanding.

19. The Tenant will be ordered to pay the rent on time and in full for a 12 month period. The loss of the tenancy has substantial potential prejudice to the Tenant while the prejudice to the Landlords is minimized through the Landlords’ ability apply to terminate the tenancy under s. 78 of the Act, if the Tenant breaches the requirement for on time payments.

TEL-80574-17 (Re), 2017 CanLII 94082 (ON LTB)

8. On April 29, 2017 the Landlord served the Tenants notice of termination for persistent late payment of rent in the Board’s Form N8 pursuant to s. 58(1)1.

9. It is uncontested that since December of 2016 the Tenants have paid rent on time only two times out of eleven months. This constitutes persistent late payment of the rent.

10. With respect to this part of the Landlord’s application, this means the only real issue for the Board is whether or not the Tenants should be granted relief from eviction pursuant to s. 83 of the Act.

TEL-88019-18 (Re), 2018 CanLII 48231 (ON LTB)

9. The Tenants claim that the tenancy should not be terminated based on persistently late rent because the Landlord’s application for the same was dismissed in order TEL-79967-17. After reading this order, it actually states that the number of payments late at that time does not constitute ‘persistent late’. The payments I have before me are more than the 50% claimed in the first Notice of Termination regarding persistent late.

10. The notice before me lists 10 out of 12 months the Tenants have been late. Even after service of the notice the Tenants continue to pay late or not at all. I am satisfied the Tenants have persistently paid their rent late.

TST-04061-10 (Re), 2010 CanLII 45593 (ON LTB)

27. The Tenant attempted to show that other tenants in the residential complex have also paid their rent late without being served notice to terminate and filed into evidence copies of two rent cheques from another tenant that were late payments. The difficulty I have with this evidence is that two late payments does not constitute persistent late payment and is simply not the same thing as the persistent lateness that is shown on the notice to terminate the Tenant’s tenancy. That notice indicates that for the period August 2009 to March 2010 the Tenant was always late with the rent. The second difficulty I have with both of the claims concerning the notice to terminate, the eviction application, and the notice of rent increase, is that the Landlord was entitled to pursue all of these things as of right under the Act. That being said, I agree with the Tenant that the timing of all of these events is highly suspicious but on their own, I would not be prepared to find them to be harassment or substantial interference with the reasonable enjoyment of the Tenant. I would simply observe that it is not unusual that when one party to a deteriorating relationship starts using the law and legal processes to achieve their goals, it is not unusual for the other party to immediately also resort to using the law.

NOL-19188-15 (Re), 2015 CanLII 33114 (ON LTB)

N8 – Persistent Late Payment of Rent

1. The Tenants were late paying the rent twice in the fall of 2012 and once in 2015.

2. Three late payments in a three year tenancy do not constitute persistent late payment.

3. The Landlord’s application for termination of the tenancy for this reason is dismissed.

TSL-56891-14 (Re), 2015 CanLII 77275 (ON LTB)

2. The notice of termination for persistent late payment is fairly straightforward. Based on payment dates it alleges the Tenant paid the rent late 27 months out of 34 for the period January 1, 2012 to October 31, 2014. The Tenant does not really dispute the Landlord’s record of dates of payment and I am satisfied this history constitutes persistent late payment.

Mimadala Holdings Inc v Halfday, 2021 CanLII 90232 (ON LTB)

4. I find that the N8 Notice is unduly vague as it lacks necessary references to specific details including dates and times for the Tenant’s payments or lack thereof. The Landlord’s representative submitted that this notice is still sufficient as it indicates that the Tenant was late for at least 4 months (Dec 2019 to March 2020) and the Tenant must have been aware of the allegations as based on this notice. I do not find that to be the case. While the Landlord’s representative lead direct evidence of the Tenant’s alleged late payment at the hearing, the problem lies in the actual text of the originating document

– the N8 Notice – which is the document against which the Tenant must craft her answer. I find that the vague allegations contained in the N8 Notice do not meet the requirements for a notice of termination set by the Act in section 43. If the Tenant is not given with some precision the details of what it is she is alleged to have done, her ability to respond is compromised, which in turn undermines the fairness of the proceeding.

5. According to the Ontario Divisional Court’s decisions in both Kuzyk v. S.K. Properties1 and Ball v. Metro Capital Property and Lockhurst,2 if a notice of termination issued by a landlord is confusing to the degree that a reasonable person could not understand the precise actions or omissions that caused the landlord to pursue eviction, a Member ought to find it defective. Specifically, the Court in Ball stated that “particulars should include dates and times of the alleged offensive conduct, together with a detailed description of the alleged conduct engaged in by the tenant.”3 A defect in a notice of termination cannot be cured through direct evidence or clarifications offered at the subsequent merits hearing.

6. In the present case, I find that the N8 Notice is defective as it is vague and devoid of necessary details with respect to the allegations that provide the basis for the application. The Landlord may not rely on this notice to terminate the tenancy.

TNL-76230-15 (Re), 2015 CanLII 99159 (ON LTB)

6. As I explained during the hearing, the N8 notice that the application is based on is not valid. The N8 Notice lacks sufficient reasons and details as required by subsection 43(2) of the Residential Tenancies Act, 2006 (the “Act”).

7. The Ontario Divisional Court in Ball v. Metro Capital Property and Lockhurst (December 19, 2002), Toronto Docket No. 8/02, found that subsection 43(2) of the Act requires that a notice served upon a tenant must include dates and times of the alleged offensive conduct with a detailed description of the alleged conduct engaged in by the tenant.

8. The Form N8 served upon the Tenants does not include the dates when the Tenants were late in the payment of their rent, how late they have been on the different occasions and for how long this conduct has been going on.

9. Therefore, the Form N8 served upon the Tenants is defective, and the Board cannot consider the Landlord’s application to terminate the tenancy on the basis that the Tenants have been persistently late in paying their rent. For these reasons, the L2 application will be dismissed.