Void for Vagueness (LTB)

Gatien/Brown v. Bombaci, 2019 ONSC 2679 (CanLII)

[1] The tenants raise one ground of appeal in this proceeding that seeks to overturn the order of the Landlord and Tenant Board (the “Board”) dated January 24, 2018, which terminated their tenancy and ordered them evicted. They raise a technical argument that the Board had no jurisdiction, because the N5 form that commenced the proceedings was void on its face for non-compliance with the legislation.

[2] Sections 43 and 62 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) set out the notice requirements in a proceeding such as this, where the landlord seeks to terminate a tenancy because the tenant has wilfully or negligently caused undue damage to the rental property.

[3] The tenants argue that the N5 form was defective because under Reason 2 (willful or negligent damage), the landlord failed to fill in the bullet beside the statement that the tenants had 7 days to correct the damage by paying amounts to repair or replace the damaged property. However, the landlord had filled in the amounts payable to repair or replace the property.

[4] The tenants also argue that the Notice was defective because it specified 2 amounts: one for repairs and one for replacement. The tenants argue that the landlord must specify one or the other.

[5] The Board rejected the tenants’ preliminary objection, finding that a reasonable person would have known they had 7 days to void the N5 Notice, because the amounts payable to void the Notice were filled in on the form. There was no evidence from the tenants that they were confused by the form.

[6] A request for reconsideration was rejected by the Board.

[7] An appeal lies to this Court pursuant to section 210 (1) of the Act only on a question of law. The parties are agreed that the standard of review is reasonableness.

[8] The tenants have identified no error of law in this appeal. The Board reasonably concluded that the N5 form was compliant with the Act, because a reasonable person would understand from reading the form that he or she had 7 days to act to repair or pay for the damage.

[9] The purpose of the Notice is to communicate to the tenants the case to be met and the options to void the Notice. When this Notice is read as a whole, including the appendices and page 3 of the form advising the tenant what to do to avoid eviction, it conveyed the necessary information to the tenants and was compliant with the Act.

[10] Moreover, s. 62(2)(c) does not require the landlord to choose between two options: pay to repair or pay to replace. It is in the tenants’ interest to be given all the options: do the repairs themselves, or pay for the repairs, or pay for replacement. Here the landlord had provided detailed information about the tenants’ options to remedy the situation.

[11] In our view the Board’s decision was reasonable. Therefore, the appeal is dismissed. No party seeks costs.

TEL-79009-17 (Re), 2017 CanLII 60227 (ON LTB)

10. The Landlord’s application alleging substantial interference with reasonable enjoyment must be dismissed because the Landlord’s notices of termination fail to meet the mandatory requirements of the Act.

12. The notices and certificates of service filed by the application indicate the Landlord served the Tenant with a notice of termination pursuant to s. 64 of the Act on March 13, 2017. So the seven day voiding period runs from March 13, 2017 to March 20, 2017. But the second notice filed with the application pursuant to s. 68 of the Act concerns an incident that occurred on March 19, 2017 which is within the 7 day voiding period. So based on the Landlord’s documents alone she cannot assert the Tenant rendered the first notice void. However, the date of termination on the first notice is such that the Landlord can amend her application to be based on the first N5 notice. I have amended the application accordingly on my own motion.

13. The difficulty that arises with the Landlord’s first notice of termination is that it is vague and lacking in particulars. All it says is:

I got many complain from other tenants about Apt 1 always screaming, yelling swearing and he go to other door, scary some body, too loud music too smocking with drinking, it is really interfered to other tenants. [Quoted as written.]

14. The reason this is a problem is because subsection 43(2) of the Act says a notice of termination given by a landlord to a tenant must also set out the reasons and details for the notice.

15. In order to assist the parties to understand the issue, I provided them both with a copy of the Divisional Court’s decision in Ball v. Metro Capital Property, (2002) O.J. No. 5931. I then stood the hearing down so the parties could provide submissions.

16. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”. The notice here clearly does not meet this requirement.

17. The Landlord argues that she brought with her to the hearing all of the evidence the Board could require including details such as dates and times.

18. The problem with this argument is that a notice of termination cannot be amended and the rationale for the rule in Ball v. Metro Capital Property is that the Tenant has the right to know the allegations in advance of the hearing so he can prepare to defend the application. In addition, a notice like this one is voidable so sufficient particulars are required so a tenant knows what he or she must do to void the notice; absent sufficient detail the tenant functionally loses the right to void the notice.

19. Given the above, I find that the notice of termination served on the Tenant pursuant to s. 64 of the Act fails to meet the mandatory requirements of the Act. The Landlord’s application based on this notice must therefore be dismissed.

TSL-85769-17 (Re), 2017 CanLII 142659 (ON LTB)

4. As I stated at the hearing, the Landlord’s Form N5 for substantial interference reasonable enjoyment and or lawful rights, privileges or interests is defective because it was unclear whether the Tenant had to void the N5.

5. However, the Form N5 is in substantial compliance with respect to the allegation of wilful or negligent damage because the Tenant knew or ought to have known that the N5 notice could be voided if he paid the amount to replace the damaged property, as the amount was reflected on the Form N5.