Service of Documents (LTB)

TEL-72527-16 (Re), 2016 CanLII 72250 (ON LTB)

7. More importantly, and as I stated at the hearing, the issue is not when the Tenant received the notice of termination. Pursuant to subsection 191(1) of the Act a notice of termination is “sufficiently given” if it is served by one of the listed methods. Pursuant to subsection 191(2), if the Landlord does not serve by one of the listed methods then and only then does the Board embark on an analysis of when the notice actually came to the Tenant’s attention.

TNT-17969-11-RV (Re), 2012 CanLII 89453 (ON LTB)

34. AE denies having received any notice of the Landlord’s intention to move into the rental property, maintaining that she hardly receives any correspondence because of the defective mailbox at the property. She claims that, as a result, she is missing a lot of important mail. She also doubts that GG will move into the property because he is a dentist and lives in a ten thousand square foot home.

35. There have been several appearances before the Board on these matters, spanning a period of over one year. The Tenant, AE, has attended and actively participated in these proceedings and other proceedings related to this tenancy, following notices of hearing primarily issued by the Board. In my view, AE does not seem to have any issue with receiving correspondence from the Board. I find that the N12 Notice to Terminate the Tenant based on Landlord’s Own Use was given in accordance with the Act. The Certificate of Service states that the document was placed in the Tenants’ mailbox or a place where mail is normally delivered. I find that AE’s claim that she hardly receives notices from the Landlord to be a convenient and unsupported attempt to have the Landlord’s claim fail.

TNL-92396-17 (Re), 2017 CanLII 60088 (ON LTB)

1. The Tenant denied having received the Landlord’s N5 notice of termination.

2. A Certificate of Service signed by the NP, the principal of the Landlord, states that the notice of termination was left in the mailbox or the place where mail is normally delivered on March 4, 2017. In addition, the Landlord filed in evidence an Affidavit of NP stating that she left the notice of termination in the mailbox on March 4, 2017, and attaching photographs of her doing so.

3. I am satisfied on a balance of probabilities that the N5 notice of termination was served on the Tenant on March 4, 2017 in a manner permitted by section 191 of the Residential Tenancies Act, 2006 (the 'Act'). The termination date specified in the N5 notice was April 3, 2017.

4. The Tenant also advised that she had claims to make against the Landlord, that she had been advised by duty counsel how to make such claims, and that she intended to make those claims by filing her own T2 and T6 applications against the Landlord and not at this hearing.

TNL-96287-17 (Re), 2017 CanLII 142640 (ON LTB)

3. The Landlord, RC testified that he served the NORI on the Tenant by leaving the NORI in the mail box where mail is normally delivered to the Tenant on February 28, 2017.

4. The Tenant did not dispute that the NORI was placed in the mail box on the date stated by the Landlords, as the Landlord, RC testified, and agreed that he received the NORI. His dispute was based on the position that it was illegal for the Landlord to open the mailbox to deposit the NORI, and that service was therefore not valid.

5. A decision regarding the illegality or otherwise of the action of the Landlord in using a key to open the mail box is not a matter that is within the jurisdiction of the Board. Service of the NORI was made in a manner authorized by subsection 191(1)(d) of the Act, and was received by the Tenant. Therefore I find that the NORI was served in accordance with the requirements of the Act.

TSL-82864-17 (Re), 2017 CanLII 28666 (ON LTB)

3. At the hearing, the Tenant testified that she never received the N4. The Tenant testified that had she received the N4, she would have paid the amount owing before the Landlord filed the application.

4. SJC testified on behalf of the Landlord regarding service of the N4. SJC is a paralegal in the same office as the Landlord’s legal representative. SJC testified that she served the N4 in the late afternoon on February 7, 2017 by placing the document in the Tenant’s mailbox. SJC testified that the Landlord told her which mailbox belongs to the Tenant. SJC testified that the Landlord described the Tenant’s mailbox as being close to the ground, behind a white railing, as opposed to the Landlord’s mailbox which is close to doorbell height with a sticker on it. SJC testified that she took a photograph of the N4 in the Tenant’s mailbox. This photograph was presented at the hearing. It clearly shows an N4 sticking out of a mailbox with the Tenant’s name on it. The Tenant identified the mailbox in the photograph as the mailbox where she normally has her mail delivered.

5. The Tenant, in challenging service of the N4, focused on facts that were irrelevant to the issue, such as what the sticker on the Landlord’s mailbox says and what other documents may have been in the Tenant’s mailbox. On the other hand, SJC’s testimony was clear, specific and consistent with both the information in the certificate of service in the Board’s file as well as the photographs of the Tenant’s mailbox that were presented at the hearing. I have no reason to doubt SJC’s testimony. Therefore, I am satisfied on a balance of probabilities that SJC served the Tenant the N4 on February 7, 2017 by leaving it in the mailbox where mail is normally delivered to the Tenant.

TEL-83544-17-RV (Re), 2017 CanLII 94056 (ON LTB)

10. The Landlords then stated they spoke with a friend who told them of the missing address issue and the Landlords then served the 3 different notices again on the same day 2 different ways. The first way was by placing them in the mail box where mail is normally delivered, and the second was sliding it under the side door.

15. The Landlords’ testimony regarding the service of the Notice was jumpy and unreliable. If one was to believe that the unaddressed Notice was then served again with an addressed Notice, notification of this issue to the Tenant would have been good business practice, at the very least.

16. I am not satisfied the Landlords served the Tenant with a valid notice of termination.

17. Subsection 43(1)(a) states a notice of termination shall “identify the rental unit for which the notice is given”. In this case, rental unit was identified; therefore, the Notice does not meet the requirements of the Act.

18. As a result, the Landlord’s application must be dismissed.

TNL-39387-12 (Re), 2013 CanLII 6304 (ON LTB)

1. The Landlord provided conflicting evidence with regard to the service of the N12 Notice to Terminate a Tenancy at the End of the Term for Landlord’s Own Use dated December 4, 2012 (the ‘Notice’). The Landlord testified that she served the Tenants with the Notice on December 4, 2012 by sliding it under the door of the rental unit. However, the Certificate of Service filed in this regard shows that the document was placed in the Tenants’ mailbox or a place where mail is normally delivered. There is no dispute that the Tenants do not have direct access to the locked mail box for their rental unit and are dependent upon the Landlord’s mother, who resides in the upper unit, to deliver their mail by sliding it under the door to their rental unit. The Tenants also asserted that they had not received any mail starting from the last week of October 2012 until approximately December 14, 2012. The police are currently investigating this matter. The Tenants exhibited a clear and detailed recollection of the events in question. I accept there evidence in this regard.

2. There is no dispute that the Landlord had previously given the Tenants a letter advising the Tenants that the tenancy would terminate as of September 15, 2012 and an N12 notice with a termination date of November 15, 2012. The Landlord claimed that she only realized that the documents did not comply with the requirements of Residential Tenancies Act, 2006 (the ‘Act’) after serving them upon the Tenants.

4. Based on the Landlord’s earlier failed attempts to give the Tenants a proper notice of termination, the conflicting evidence provided by the Landlord regarding the service of the Notice, the alleged interruption in the delivery of mail to the rental unit, I find that it is more likely that the Tenants did not receive the Notice. Accordingly, I am not satisfied that the Landlord gave the Tenants notice to terminate the tenancy in compliance with the requirements of the Act. However, even if I am wrong in reaching this conclusion, I find that the Landlord incorrectly filed this application without first serving a notice of termination in accordance with the Act.

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.