Void for Vagueness (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-25
CLNP Page ID:	768
Page Categories:	[Defective Notice (LTB)]
Citation:	Void for Vagueness (LTB), CLNP 768, <3v>, retrieved on 2024-11-25
Editor:	MKent
Last Updated:	2021/10/20

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Ball v. Metro Capital Management Inc., Re, 2002 CarswellOnt 8691

[11] A notice by a landlord under section 64 of the Act, in addition to being a formal Notice to Terminate a Tenancy Early, is also a "notice to comply". Accordingly, as the tenant has the option "to comply", particulars of the allegations are essential to make the notice meaningful.

[12] 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.

[13] In the circumstances of this case, according to the materials, there were problems in the building relating to hot water. Where a landlord alleges a tenant of "harrassing its employees", it is particularly important that the notice clearly sets out sufficient details for a tenant to be put on notice that the particular acts complained of are alleged by the landlord to be "acts of harrassment" as compared to legitimate inquiries of a "rightfully assertive tenant".

[14] The Member of the Tribunal erred in failing to find that the Notice served on the Tenant was invalid for lacking in the required details.

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.

Nejad v Preddie, 2016 ONSC 4348 (CanLII)

[44] The story began, as I have discussed, with a flawed N2, that is, a flawed notice of rent increase. The notice was flawed because it did not comply with the requirement that notice be given at least 90 days before an increase may be charged. An N4 followed – a notice to end a tenancy early for non-payment of rent. The N4 alleged an amount of arrears consistent with the flawed N2. For this reason, and this reason alone, the N4 was found to be flawed. When the landlord’s L1 – the application to evict the tenant for non-payment of rent and to collect rent the tenant owed – came on for hearing, consistent with Ball v. Metro Capital Property, the Member concluded that he had no jurisdiction to order eviction. However, consistent with the Board’s practice, upon the landlord abandoning the eviction application, the member permitted the part of the landlord’s L1 seeking arrears to proceed.

[45] On review, Member Pernal saw no error in proceeding on an application to collect arrears despite a defective N4. He stated, at paragraph 3 of his decision:

I find that on this point there was no serious error. A party may amend its application in accordance with section 200 of the Act, and the Board may amend an application on its own motion pursuant to section 201 of the Act. The cases cited by the Landlord are more indicative of the customary practice at the Board allowing a landlord (or the Board on its own motion) to amend an L1 application following a defective N4 notice to an L9 application for arrears only which requires no separate notice to be filed with the application.

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.

TEL-25462-12 (Re), 2012 CanLII 57893 (ON LTB)

I assume that Tenant Duty Counsel was referring to the Divisional Court case of Ball v Metro Capital. This decision required that notices issued by landlords must be specific enough to allow a Tenant to void the N5 by stopping the behaviour specified by the landlord in the notice or, in the alternative, have sufficient information to allow the tenant to defend the application. The decision of the Court mentions that notices should contain dates and times of alleged behaviour. Many tenants have since argued that if a notice does not contain dates and times then it is void for vagueness.

I disagree.

The essence of the Divisional Court decision was that a Tenant must have enough information to understand what the problem is that he needs to address. The notices issued in this case are similar and I will quote the second notice: Repeated confrontational activity between tenants and landlords; excessive noise after 11 pm including week nights; disturbing tenants in basement for unreasonable concerns; continuously leaving garbage and personal effects in common hallway despite repeated numerous notices not to; does not maintain property as per lease agreement (garbage, junk left in back yard etc – repeated notices; tenant allows cats to roam freely in the common areas- downstairs tenants are very allergic and despite repeated requests to contain cats he continues to allow them to roam freely; tenants in basement now choosing to either leave property or staying away due to noise and allergies – cannot continue to endure this confrontational behaviour.

Some of the complaints of the Landlord would not be amenable to the naming of times and dates because they refer to continuous behaviour, for example the issue of the cats being allowed free run of the common area and leaving personal belongings in the common area and leaving junk and garbage in the back yard. Other complaints would benefit from more specificity (example references to noise) but it is clear that this notice is being given because of the Landlords’ belief that this Tenant is disturbing the basement tenants by his behaviour. It gives the Tenant enough information for him to understand what the problems are. In fact after the first N5 was issued both the Landlords and the main Tenant agree that his behaviour changed sufficiently for the Landlords to consider that the notice had been voided.

In a Board process that is structured to provide ‘efficient and accessible’ justice and where parties are often self-represented and have completed notices without the assistance of legal advice it is not appropriate to impose standards that defeat the purpose of the Act. This Tenant had no doubt what he needed to do to maintain his tenancy: he had to leave the downstairs tenants alone; pick up his garbage; not treat the common areas as an extension of his unit and be less confrontational with the Landlord.

I find that the notices served on the Tenant gave him sufficient information to change his behaviour to maintain his tenancy or in the alternative enough information to defend an application brought by the Landlords to terminate his tenancy.

References