Failed to Vacate on Notice (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-06-03
CLNP Page ID:	1930
Page Categories:	[Interference of Reasonable Enjoyment (LTB)]
Citation:	Failed to Vacate on Notice (RTA), CLNP 1930, <7X>, retrieved on 2024-06-03
Editor:	Sharvey
Last Updated:	2022/06/22

PE Real Estate v. Kelly 2021 ONSC 4661

[28] The tenants submit the deputy judge committed an error in law in concluding that the landlord had a cause of action arising from the tenants' failure to vacate the premises prior to the original termination date of July 31, 2018.

[29] The landlord argues that by overstaying the July 31, 2018 notice of termination date (and the August 4, 2018 closing date) for the sale of the subject property, the tenants caused the landlord to breach the agreement of purchase and sale. As a result, the tenants are liable for damages to compensate the landlord for the costs incurred to extend the closing date.

[30] Further, the landlord submits that whiles. 43(2)(c) gives a tenant an unqualified right to dispute an eviction hearing at the L TB, that right does not mean they were in lawful possession on July 31, 2018, or on August 4, 2018.

[31] I find that the deputy judge erred in law in concluding the landlord had a cause of action.

[32] The RTA sets out a complete code dealing with the termination of a tenancy. Section 49(1) of the RTA provides for an eviction mechanism when a landlord is required to terminate a tenancy as a result of a sale to a purchaser who, in good faith, requires possession of the leased property for their own occupation.

[33] It was an enor to attribute responsibility (and by extension legal liability) to the tenants as a result of the landlord having to extend the closing date of the transaction for several reasons.

[34] The agreement of purchase and sale was made between the landlord and the purchaser. In no way did that agreement create any legal obligation on the tenant.

[35] Only the landlord could trigger a hearing before the LTB to effect an eviction.

[36] A tenant with a notice to vacate has the right to either vacate in accordance with the notice or challenge the eviction. If a tenant does not vacate (like in this case), the landlord has a statutory right to make an application for an eviction order under s. 43(1) ands. 69(1) of the RTA. Once a notice is given, an application can be made by a landlord to the LTB at any time for an eviction hearing.

[37] In this case, the landlord could have made such an application at any time after May 31, 2018. However, the landlord made the application on July 31, 2018.

...

[40] To reiterate, the RTA creates no obligation on tenants to provide notice of intention to challenge an eviction notice. Notwithstanding that, the deputy judge determined that if the tenants were having issues, they "should have provided that information to the landlord ahead of time; rather than the day before the notice was to take effect." The deputy judge imposed a notice obligation on the tenants when no such obligation is required in the RTA. That is, she ened in attributing "fault" or legal "responsibility" to the tenants in waiting until just before the termination date set out in the notice to indicate they were not vacating. The tenants were under no obligation pursuant to the RTA to indicate their intention not to vacate by any specific date, or during any specific time period. In reviewing the transcript, it is evident that the deputy judge did not fully appreciate that the obligation to take the necessary steps to evict pursuant to the RTA rests solely with the landlord. The exchange with the student-at-law representing the tenants demonstrates that misunderstanding, at pp. 53 and 54:

THE COURT: Right. Yes. If the landlord applies for an order, the tenant is entitled to dispute the application of course.

MR. BATTISTON: And in this circumstance, Your Honour, that is in fact what my client was doing in this instance, and they have that legal right to do under this act.

THE COURT: Right. But how is the landlord to know that your client is not going to vacate the rental unit under the N2 - or N12, pardon me?

MR. BATTISTON: So under ...

THE COURT: So you're saying every landlord should be bringing an application right away.

MR. BATTISTON: If a landlord has an instance in which they need a tenant gone from that premises, best practice would suggest then, Your Honour, that an application for eviction would be filed subsequent to the N12, to ensure that tenant is evicted from that property, and so that whatever circumstance that the N 12 was served for can proceed without a potential breach, or some other instance, Your Honour.

THE COURT: So you're saying it's fully on the landlord, so there should be no costs payable at all, is that right?

MR. BATTISTON: Correct, Your Honour. Yes.

THE COURT: All right. Go ahead.