Notice Law - Non-Payment of Rent (N4)

Non-Payment of Rent

Residential Tenancies Act, 2006

106 (1) A landlord may require a tenant to pay a rent deposit with respect to a tenancy if the landlord does so on or before entering into the tenancy agreement.

(2) The amount of a rent deposit shall not be more than the lesser of the amount of rent for one rent period and the amount of rent for one month.

(6) A landlord of a rental unit shall pay interest to the tenant annually on the amount of the rent deposit at a rate equal to the guideline determined under section 120 that is in effect at the time payment becomes due.

(9) Where the landlord has failed to make the payment required by subsection (6) when it comes due, the tenant may deduct the amount of the payment from a subsequent rent payment.

CEL-06197-10 (Re), 2011 CanLII 5921 (ON LTB)

1. At the time the N4 was filed, it was defective as the rental arrears claimed for March 2010 were paid. The application for termination could not proceed as the N4 notice on which it was based was void. Therefore the Landlord’s application is dismissed.

2. Irrespective of the fact that the Tenant may have incurred new arrears by the date of the Landlord’s application filed on August 3, 2010, (namely that the Tenant owed rent for August 2010), and arguably she incurred further rental arrears after that date, because the N4 is fatally defective, the Board cannot terminate under this application. The Landlord did not seek to amend the application to pursue arrears only. Accordingly such arrears claims cannot be adjudicated by means of this application.

3. Rule 1.4 of the Landlord and Tenant Board’s Rules of Practice and case law concerning the notice provisions in the Act uphold a strict interpretation for any problems found in an N4 Notice. Rule 1.4 does not allow a member to disregard any defect in a document created before the application is filed.

TSL-85025-17 (Re), 2018 CanLII 42621 (ON LTB)

2. The Landlord requested to amend the application to correct the name of the corporation in the style of cause. The Tenants did not dispute that the Landlord was incorrectly named in the application and in the notice of termination but they argued that the incorrectly named landlord rendered the notice of termination void. However, as I explained at the hearing, section 43 of the Residential Tenancies Act, 2006 the “Act”), which sets out the essential elements of a notice of termination, does not specifically state that a landlord must be correctly named in a notice. Therefore, I find that the landlord’s failure to name itself correctly in the notice does not render it defective and void.

3. The Tenants also raised the recent amendment to section 48 of the Act, which prevents a corporation from filing a landlord’s own use application. However, that amendment came into effect on May 30, 2017, several months after the Landlord’s application was filed and it does not apply to this application. In the present case, the Landlord corporation owns the residential complex. It filed an application seeking vacant possession of the rental unit so the son of the sole owner of the corporation can move into the unit. I am satisfied that the individual owner, CB, is the directing mind of the corporation. As such, I am satisfied that CB meets the definition of “landlord” in the Act because he is also an owner of the rental unit. Accordingly, CB will be referred to as the Landlord in the remainder of this order. This approach is consistent with the court’s decision in Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII).

Nejad v Preddie, 2016 ONSC 4348 (CanLII)

[40] In Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.), the tenant appealed an order terminating a tenancy under the Tenant Protection Act, 1997, S.O. 1997, c. 24 following service of a Notice to Terminate a Tenancy Early in Form N5 under that Act. As with the N4 here, the Tenant Protection Act required that the notice set out the grounds for termination. The Court found that the notice was seriously deficient in that it failed to provide details about the reason for notice, was void as a result, and that the Member had no jurisdiction to make the order requested.

CEL-59665-16-RV (Re), 2016 CanLII 88119 (ON LTB)

15. In some situations, the actual address a person resides at is not an address where mail is reliably delivered. For example, a rural address may not have mail delivery and a P.O. Box in the closest town will be the mailing address. In that situation, a landlord would never be able to comply with the narrow interpretation of section12.

16. As long as the Landlord provided an address for service of documents the requirement of section12 has been met. The address does not have to be the personal address where the Landlord resides.

17. This reasoning was adopted by the Ontario Divisional Court in N v P, 2016 ONSC 4348 (CanLII). The Court determined that providing the address of the landlord’s lawyer for service of documents met the requirements of section12 of the Act.

18. Since the Landlord provided an address for service of documents in the written tenancy agreement, the Tenants’ obligation to pay rent was not suspended and the finding that the N4 notice was not permitted was a serious error.

TSL-75068-16 (Re), 2017 CanLII 60205 (ON LTB)

11. By the Member’s decision on the rent increases, the Notice to Terminate (N4) was found to be invalid for citing the wrong amount of legal rent. The request for review complains that the Landlord cited the rent that he thought was lawful at the time. It is always the case that what the Board determines in relation to the content of the notice affects the validity of the notice itself. The Member’s decision that the legal rent was $1,600.00 per month, made the requirement within the Notice to set out the legal rent unmet, so the Notice is void. I see no error in the Member having found that the N4 was not valid.

TSL-72945-16 (Re), 2016 CanLII 53015 (ON LTB)

4. While the unit may be exempt from the prescribed guideline rent increases, the requirements for notice of a rent increase set out in section 116 of the Act still apply; the relevant provisions of that section are:

116. (1) A landlord shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the landlord’s intention to do so.

(4) An increase in rent is void if the landlord has not given the notice required by this section, and the landlord must give a new notice before the landlord can take the increase.

5. Here the Landlord’s position is that the Tenant was served with a notice of rent increase (“NORI”) to take effect on April 1, 2015 and increasing the monthly rent to $1,050.00. The Landlord further contends that Tenant was served with a subsequent NORI to take effect on April 1, 2016 and increasing the monthly rent to $1,075.00.

6. The Tenant disagrees. He alleges that after being served with a NORI to take effect on April 1, 2014 and raising the rent to $1,015.00, he was not served with another NORI until January 3, 2016, to take effect until April 1, 2016 and raising the rent to $1,075.00. As he was not served with a NORI 90 days prior to April 1, 2015, the Tenant submits that the Landlord was not entitled to raise the rent to $1,050.00, effective that date.

7. The Tenant further submits that the N4 notice of termination upon which the within L1 application is predicated is defective as it is based on erroneous monthly rental charges for the rental periods where it claims that the monthly rent was $1,050.00.

8. I agree with the Tenant’s submissions and the Landlord’s application will be dismissed for the following reasons.

9. The Landlord produced a “Notice of Rent Increase (Serving List)”, outlining units that were served with NORIs on January 3, 2016 for rent increases to take effect on April 1, 2016. The Tenant’s unit is on that list. However, no evidence was provided, by way of viva voce testimony or otherwise, to establish that the Tenant was served with a NORI at least 90 days prior to April 1, 2015.

10. I am unable to accept the submissions of the Landlord’s legal representative that, as the Landlord served the Tenant with a NORI to take effect on April 1, 2014 and April 1, 2016, on a balance of probabilities, the Landlord served a NORI to take effect on April 1, 2015. Needless to say, were I to make such a finding of fact, I would be doing so based on no evidence and/or speculation or conjecture and that would amount to an error of law.

11. As such, I am left with the Tenant’s affirmed and uncontradicted testimony that he was not served with a NORI 90 days prior to April 1, 2015 and, in the circumstances, I must accept the Tenant’s evidence as true: Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305.

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