Service of Documents (LTB)

TSL-72954-16 (Re), 2016 CanLII 44293 (ON LTB)

4. KS testified that, on or about April 13, 2016, his former roommate, “C.”, handed him the N12 notice and stated that the notice was “stuck to the door” to the unit, which leads to the street. KS added that C. also advised him that the N12 notice was not placed in an envelope.

5. On cross-examination, KS testified that he did not have additional evidence that the N12 notice was affixed to the door to the unit and, on re-direct examination, KS admitted that he did not see the N12 notice affixed to the door.

6. I asked KS if he considered requesting a summons to have C. appear as witness at the hearing and he stated that, as C. vacated the unit in March 2016, he lost contact with her and that C. told him not to attempt to contact her, otherwise she would call the police.

7. The Landlord provided a certificate of service, executed by her on April 15, 2016, stating that she served the N12 notice to the Tenants on April 13, 2016 by leaving the document in the mailbox, or place where mail is normally delivered.

8. The Landlord provided viva voce testimony that she served the N12 notice to the Tenants on April 13, 2016 by putting the document “through the mail slot” located on the front door to the unit.

9. As I stated during the hearing, I prefer the Landlord’s direct testimony over the Tenant’s hearsay evidence. This is not a case where compelling reasons were put forth by the Tenants going to why I should accept hearsay evidence over direct testimony. Generally, direct testimony under oath ought never to be rejected by a trier-of-fact in reliance on hearsay evidence, unless there is, first, a finding that the direct testimony was not creditable and reasons for that finding are provided.

10. Here, the Landlord’s testimony was devoid of inconsistencies, internal and otherwise, and provided in a spontaneous and forthright fashion. In the end, there was no reason for me to reject the Landlord’s direct testimony about how and when she served the Tenants with the N12 notice and, to do so, would amount to an error of law. For these reasons I find, on a balance of probabilities, that the Landlord served the N12 notice herein to the Tenants on April 13, 2016, by placing the document in the mailbox or place where mail is normally delivered and, accordingly, the Tenant’s motion is dismissed.

TEL-02505-19 (Re), 2019 CanLII 126908 (ON LTB)

13. After hearing the testimony of the Tenant and the Property Manager I find that Landlord served the Tenant on May 27, 2019 by leaving the document in the mailbox where mail is normally delivered. The Notice is properly before the Board.

14. I say this because although it seems that the parties have equal, but opposite, evidence the Landlord has evidence in writing that was completed in the process of doing business. By verifying the service via email to the Landlord’s representative after it was complete there is a record of the date.

15. It is evident that the Tenant truly believes she checked her mailbox prior to June 12, 2019; however, it does not mean she picked up everything from the mailbox each time. She was hesitant in giving specific dates she checked her mailbox prior to June 12. This hesitancy does not persuade me to believe they are absolute dates. She says it is a matter of routine, and it may be, but I am not convinced of those dates.

16. As a result, I find the Landlord served the Tenant appropriately and at least 60 days prior to the termination date, which is the end of a term pursuant to subsection 49(3) of the Residential Tenancies Act, 2006 (the 'Act').

Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII)

[49] The Board held as follows:

13. The issue of service is not whether the Tenant received the notices. Rather, the issue is whether the Landlord served them.

14. Subsection 191(1) of the Act says that a document like a notice of rent increase “is sufficiently given to a person” by way of a number of permissible methods including many methods other than personal service. Some of those permissible methods are listed in the Act and some can be found in the Board’s Rules. What subsection 191(1) means is that a [sic] long as someone like the Landlord in this case sends the document to the Tenant by one of the permissible methods, then under the Act the Tenant has been served whether she actually received the document or not because it was “sufficiently given” if served in accordance with section 191.

15. This interpretation of subsection 191(1) is supported by the other provisions of the section. Subsection 191(3) says when a notice is served by mail (which is a permissible method of service) it is deemed to have been received five days after mailing. Clearly, it is not unknown for individuals not to receive things that are mailed to them but under subsection 191(3), as long as it was mailed the recipient is deemed to have received it. Subsection 191(2) says that when a notice is not given in accordance with one of the permissible methods it “shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period”. In other words the only time the Landlord has to establish the Tenant actually received the notice of termination is when it fails to use one of the methods of service that are permissible under the Act and Rules. As such, the Landlord does not have to establish the notice was received if properly served.

16. Given the testimony of ME, I find it more likely than not, the Landlord served the Notices of Rent Increase for 2013, 2014 and 2015. I would also note that it was the Tenant who produce the NORI dated December 21, 2011, the notice saying that the rent had decreased. That is consistent with the Landlord’s evidence of mailing.

[50] Those paragraphs reflect the analysis by the Board of sections of its home statute and rules. I am not persuaded that the Board erred in law in the interpretation of s. 191. Furthermore, the decision as to service of the notices in this case was a decision of mixed fact and law which is not reviewable on appeal.

E. Whether the Board abdicated its jurisdiction when it applied an overly deferential standard of review to the order dated September 24, 2015

[51] Rule 29 provides that a party to an order may file a written request to review and must provide “sufficient information to support a preliminary finding that the order or decision may contain a serious error or that a serious error may have occurred in the proceedings”. Unless the Member determines that the order may contain a serious error or that a serious error may have occurred in the proceedings, the Member shall deny the review request without a hearing. The Board’s Interpretation Guideline 8 – Review of an Order, sets out the factors that the Board will consider when assessing whether there has been a “serious error”.

[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.

[53] The appellant takes the position that the Board has established a standard of review so deferential that review is often a pointless exercise, so that the right of review at the Board is often narrower than the right of review on an appeal to the Divisional Court.

[54] As the respondent pointed out, the Board’s Interpretation Guideline 8 includes the following factor:

. . . the Board will not normally review a reasonable interpretation of the statute by a Member, even if the interpretation differs from that of the reviewing member.

[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.