Substantial Compliance (Affidavit N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	2365
Page Categories:	[Hearing Process (LTB)]
Citation:	Substantial Compliance (Affidavit N12), CLNP 2365, <>, retrieved on 2024-11-27
Editor:	Sharvey
Last Updated:	2024/04/02

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

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.

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).