Motion to Void Eviction (Post Enforcement Date)

TSL-06312-VO (Re), 2007 CanLII 75978 (ON LTB)

6. The Landlord submitted that the Landlord was correct to return the Tenant’s $300.00 money order to her because unless the Tenant made a motion to the Board to void the order, the Landlord would not be able to say on a subsequent arrears application, that the Tenant had exhausted her one time only opportunity to void an eviction order after the enforcement date. This is because subsection 74(12) of the Act clearly states that a tenant only has one opportunity during the course of a single tenancy to void an eviction order by paying after the enforcement date, but prior to the order being executed by the Sheriff. As I stated at the hearing, this argument has some logic to it with respect to the Landlord’s actions in returning the $300.00 money order to the Tenant. However, to my knowledge the Board will accept and process motions to void like this one where all of the payments have been made to a landlord and none to the Board despite the clear wording of subsection 74(11). As a result it is not necessary for landlords to force tenants to make payments into the Board when a motion to void needs to be made.

7. However, if a landlord accepts a tenant’s payments after the enforcement date and the tenant does not file a motion to void, then the landlord has an order which has not been stayed or officially voided and which technically can be enforced. Without the tenant’s motion to void that order stays alive. If the landlord elects not to enforce it because the tenant did in fact pay all monies owing, then the landlord is deprived of its benefit of the one time only rule. In that scenario the only way a landlord has to force the tenant to make a motion to void is to file the order with the Sheriff for enforcement purposes. As a result, I do not believe the Landlord here did anything particularly wrong when it returned the Tenant’s payment to her. However, that does not settle the issue of liability for the Sheriff’s fees, which were incurred here after the Landlord knew or ought to have known the order was going to be voided.

TNL-28504-12-VO (Re), 2012 CanLII 98070 (ON LTB)

Determinations and Reasons on the Motion:

15. Accordingly, the total payment made by the Tenant to the Landlord $11,550.00 is $170.00 less than the amount of $11,720.00 required to void order TNL-28504-12.

16. At this stage in the proceedings, the oral determination was given, that the payment made by the Tenant was $170.00 less than the amount required, the Tenant requested a 15 minute recess so that she could review her records in the event that she had paid the $170.00 in costs ordered to the Landlord and had forgotten about that payment.

18. Pursuant to subsection 74 (14) (b) of the Act, if a tenant makes a motion under subsection 74 (11) the Board shall after a hearing "make an order lifting the stay of the order if the tenant has not paid the amounts required by subsection 74 (11) to void the order."

21. When the oral decision was given, with regard to the Tenant's motion to void, the Tenant made the following requests:

a) a request for an adjournment:

As the hearing of the testimony and submissions by both parties had been concluded and the decision orally given, this request was denied.

b) Relief from eviction:

Pursuant to section 83 (2) of the Act, upon an application for an order evicting a tenant if a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers to either refuse to grant the eviction or to postpone the eviction.

Order TNL-28504-12 was issued as a result of a hearing of an application for an order evicting the Tenant and the Member who heard the application and who issued the order complied with this statutory obligation to review all of the circumstances, and based on his consideration of those circumstances he exercised his discretion in that regard by postponing the eviction until April 30, 2012.

The Member clearly gave relief from eviction by postponing the eviction but the Member did not make a finding that the circumstances justified using his discretion to refuse eviction.

I have no jurisdiction to review and change the Member's findings with regard to the relief from eviction granted by the Member which were and must be considered at the hearing of an initial application for eviction.

A hearing of a motion to void is not a hearing of an application for an order evicting a tenant and clearly a motion to void is made with regard to the order issued with regard to the application for an order evicting a tenant. It is at that hearing, and in the order for that hearing, that relief from eviction must be considered.

The issue to be determined on a motion filed under subsection 74 (11) of the Act is limited to whether or not all of the money required by the Act to void the order has been paid. The Act does not provide for any further consideration of relief with regard to this motion.

Accordingly the Tenant's request was denied.

22. All of my reasons for my decision are included in the body of this order.

It is ordered that:

The Tenant’s motion to void order TNL-28504-12 is denied.