Voiding Period - Re: Failure to Inquire (N5)

Daley v. Linton, 2018 ONSC 5095 (CanLII)

[10] Mr. Linton appeals on the basis that the board was not entitled to make an eviction order without making a finding under s. 64 (3) of the Residential Tenancies Act, SO 2006, c 17, that the tenant had failed to stop the offensive conduct within seven days after receiving the landlord’s eviction notice. Mr. Linton argues that the board is not entitled to evict a tenant using an N5 process without making that mandatory finding. Therefore, he asserts that the board made an error in law that must lead to its order being set aside.

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[15] We are all of the view that the appeal must be allowed. The N5 process is one of the few incursions into the security of tenure held by residential tenants in Ontario. It is fundamental to the landlord and tenant regime in this province, that eviction is only available on a few listed grounds and then only on strict proof of the facts on which the eviction is based. It is necessary for the landlord to prove and for the Board to make a finding that the N5 eviction notice did not become void during the seven day period following its receipt. See, for example, TEL-76592-17 (Re), 2017 CanLII 48984 (ON LTB) at para. 3.

[16] It is an error of law for the Board to evict a tenant under an N5 process without considering whether there are facts that void the notice. In Luray Investments Ltd. v. Recine-Pynn, 1999 OJ 3643 (Div Ct), this court overruled an eviction decision on this and other grounds. In that case, Lane J. wrote:

Further, the reasons of the Tribunal do not disclose any consideration of the fact, as appears from the evidence may be the case, that the conduct complained of in the Notice of Early Termination ceased within the seven days next after the service of that Notice. If that conduct did cease the Notice itself states that it would be void.

[17] There is no evidence in the record of proceedings that the Board turned its mind to whether the notice had been voided; there is no reference to any evidence on the issue and no finding in the reasons that the notice was not voided. In the review decision, the Vice Chair stated at para. 4 that “There was uncontested oral evidence at the hearing that the Tenant repeated the offending conduct within the voiding period.” As there is no recording or transcript of the proceeding and no reference to such evidence in the Board’s reasons, there is no evidentiary basis for this assertion. It was not open to the Vice Chair on review to add to the evidence or findings of fact absent a transcript of the proceeding. His reasons fail to meet the transparency requirement necessary to attract deference.

[18] In light of this decision, we do not need to address the other grounds of appeal asserted.