Failure to Provide Particulars (N5)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1868
Page Categories:	[Defective Notice (LTB)]
Citation:	Failure to Provide Particulars (N5), CLNP 1868, <6K>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2022/02/10

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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.

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-72419-16 (Re), 2016 CanLII 71312 (ON LTB)

21. In Ball v. Metro Capital Property, [2002] O.J. No. 5931, the Divisional court found that an N5 Notice must include the dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant. The Court explained that one of the reasons that these particulars are required is for the tenant to be in a position to know the case that he or she must meet. For this reason, I find that the Second N7 was required to include a description of how the tenant’s conduct gave rise to the elements of an “inconsistent use” application as well as accurate dates of the events referenced. Without this information the Tenant could not have reasonably been expected to meaningfully prepare for and defend himself at the hearing against the Landlord’s allegations. Accordingly, I find the Second N7 is invalid because it is deficient in detail and it contravenes both subsection 63(2) of the Act and the principles set out in Ball v. Metro Capital Property.