Persistent Late Payment of Rent (RTA)

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-02314-19 (Re), 2019 CanLII 87054 (ON LTB)

10. The Tenant testified that prior to December, 2018, he paid his rent late because his pay periods did not align with the days when his rent was due. In other words, he paid the rent late because he was waiting to be paid by his employer.

11. The Tenant testified that in December, 2018, he lost his job. The Tenant testified that he has not paid any rent since then because he did not have any income. The Tenant testified that he only recently began receiving employment insurance because his employer did not provide a record of employment to complete his EI application.

12. The Tenant testified that he is now receiving $964.00 bi-weekly from employment insurance and he is able to pay the rent on time. The Tenant testified that his monthly expenses total $1,582.00, including rent ($904), internet ($60), cell phone ($58), transportation ($120), food for himself ($400) and dog food ($40).

13. The problem is that I am not satisfied on a balance of probabilities that the Tenant can afford the rent. The Tenant did not come to the hearing with any documentation to corroborate his evidence about his financial situation. The Tenant already owes the Landlord approximately $3,600.00 in arrears of rent and in his testimony the Tenant was unable to provide a concrete date when he will be able to pay the Landlord this amount.

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-03174-19-AM (Re), 2019 CanLII 87770 (ON LTB)

10. Even if the Tenant voids the eviction order for arrears of rent above the tenancy between the Landlord and the Tenant is still terminated due to persistent late payment of rent. The Tenant must move out of the rental unit on or before April 13, 2019.

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.

TNL-99038-17 (Re), 2017 CanLII 142673 (ON LTB)

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