Disputing Service in Large Multi-Swelling Apartment Buildings

Summary of Law

Section 191 (1) of the RTA reads: "A notice or document is sufficiently given to a person other than the Board", but what happens when the tenant claims that notice was never recieved? Well in the Divisional Court case Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII) the court states at paragraph 52:

[52] The Board conducted a preliminary review of the review request without a hearing and denied the request with these reasons:

3. Regarding section 191, the Member set out her reasoning in some detail, concluding that a party need not prove that a document was actually received unless it is served by a means other than those permitted by the Act and the Board Rules. If the Board is satisfied the document, in this case, notices of rent increase, was served by one of the permitted means, then it has been sufficiently given”. This is a reasonable interpretation of section 191(1) and (2).

4. Similarly, it was not unreasonable of the Member to conclude on the basis of section 203 of the Act, which provides that the Board shall not make determinations or review decisions concerning eligibility for or the amount of geared-to-income rent, that the Board was without jurisdiction to determine whether the Tenant was entitled to geared-to-income rent.

5. An interpretation of law will only be disturbed upon review if it is found to be unreasonable.

6. I am unable to conclude that the Member’s interpretation of either provision is unreasonable.

[55] The Review Order demonstrates the application of rule 29 and the Interpretation Guideline. I am not persuaded that the Board erred in law in denying the review request.

What the above case demonstrates is that the only obligation on the landlord is to serve a notice in a manner permissible by the rules, the landlord is under no obligation to prove the tenant actually received the notice.

In a large apartment building there are often letter small mail boxes on the ground floor of that building. Those mail boxes are governed under the authority of the Canada Post Corporation Act (R.S.C., 1985, c. C-10). Of particular interest is Mail Receptacles Regulations (SOR/83-743) Section 10(c) which states:

10 Where a mail delivery service is inaugurated or extended to serve an area, delivery shall be effected to buildings in that area, subject to the following conditions:

(c) delivery shall be effected to parcel compartment units in an apartment building or office complex if the conditions set out in Schedule IV are complied with;

SCHEDULE III of Mail Receptacles Regulations (SOR/83-743) reads in part as follows:

4 Every mail box assembly shall be constructed and installed in such a manner as to prevent

(a) loss or entrapment of mail;

(b) damage to mail; and

(c) injury to a post office representative.

5 Each box in a mail box assembly shall be equipped with a door through which mail may be obtained and every such door shall be equipped with a lock.

7 Every mail box assembly shall be constructed so that a post office representative has ready access to the mail boxes in the assembly by means of

(c) where there is an open space or public foyer at both the front and rear of the assembly and the means of access described in paragraphs (a) and (b) are not reasonably obtainable, a cupboard type door on the rear of the assembly that

(i) when closed, prevents unauthorized entry,

8 (1) The master door of access to a mail box assembly shall be fitted with a lock obtained from the Corporation.

(2) The lock shall be fitted so that, when it is locked, the bolt is engaged in metal to a depth of at least 6 mm.

9 The installation of the lock referred to in section 8 shall be supervised by the local postmaster who shall retain custody of the key for the lock.

Analysis

What is important to focus on above is that under the Canada Post Corporation Act (R.S.C., 1985, c. C-10):

• Canada Post had exclusive jurisdiction to deliver letter mail in Apartment buildings.

• The local post master shall retain custody of the only key to the master lock for apartment building mail boxes.

• Mailboxes for apartment buildings shall be construed in such a way that when a mail box door is closed, prevents unauthorized entry,

• Mailboxes for apartment buildings shall be constructed to prevent loss, damage or entrapment of mail.

What is important to draw from the above content is that the mail box must be used in such a way that the mail box owner can be assured that they will actually receive their mail, safely, securely, and without damage. I would submit that if a landlord is unable to serve a notice in an apartment build in the same manner as a Post Office Official then it cannot be said that service of a document was effected in such a manner contemplated under the RTA or its rules.

If a landlord or agent is serving a notice to a mailbox in such a manner that is not consistent with the above mentioned principles of mail delivery then I would submit that the landlord or agent holds the burden to prove notice was actually received by the tenant.

It is further worth noting that in Canadian Daily Newspaper Assn. v. Canada Post Corp., 1995 CanLII 3608 (FC), (1995) 3 FC 131 at page 2 the court states:

Both the applicants and the respondent agreed that section 14 of the Act grants Canada Post a statutory monopoly over the collection, transmission and delivery of "letters":

14. (1) Subject to section 15, the Corporation has the sole and exclusive privilege of collecting, transmitting and delivering letters to the addressee thereof within Canada.

For the purposes of the Act, "letter" is defined in section 2 of the Letter Definition Regulations, SOR/83-481, to mean "one or more messages or information in any form . . . that is intended for collection or for transmission or delivery to any addressee as one item". Specifically excluded from the definition of "letter", under subsection 2(c), is an item having "no further address than `householder', `boxholder', `occupant', `resident' or other similar expression".

The applicants and the respondent agreed that the Mail Receptacles Regulations were enacted to fulfil the public purposes of facilitating delivery of mail to apartment residents and to better provide for the security of the mail. This is consistent with Canada Post's objects, as set out in section 5 of the Act, to provide for basic customary postal service and security of the mail.

It is my submission that the postal delivery rule allowing for deemed delivery of documents served via regular mail exist because the Canada Post Corporation Act (R.S.C., 1985, c. C-10) goes to such great measures to ensure security and consistently of mail delivery in Canada. To accept that mail has been delivered to a mail box that is inconsistent with the measures and principles as set out in the Canada Post Corporation Act (R.S.C., 1985, c. C-10) then I would submit that service to a place where mail is normally delivered should not be accepted as a default but require the party claiming service to prove actual receipt of a notice by the tenant.

Conflict of Laws

In the case of Alberta (Attorney General) v. Moloney, 2015 SCC 51, (2015) 3 S.C.R. 327, at paras. 17-29. It summarized when a conflict will occur, at para. 29:

[I]f the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament’s purpose, there is a conflict.