Notice Law - N8 Persistent Late Payment

TSL-02314-19 (Re), 2019 CanLII 87054 (ON LTB)

10. The Tenant testified that prior to December, 2018, he paid his rent late because his pay periods did not align with the days when his rent was due. In other words, he paid the rent late because he was waiting to be paid by his employer.

11. The Tenant testified that in December, 2018, he lost his job. The Tenant testified that he has not paid any rent since then because he did not have any income. The Tenant testified that he only recently began receiving employment insurance because his employer did not provide a record of employment to complete his EI application.

12. The Tenant testified that he is now receiving $964.00 bi-weekly from employment insurance and he is able to pay the rent on time. The Tenant testified that his monthly expenses total $1,582.00, including rent ($904), internet ($60), cell phone ($58), transportation ($120), food for himself ($400) and dog food ($40).

13. The problem is that I am not satisfied on a balance of probabilities that the Tenant can afford the rent. The Tenant did not come to the hearing with any documentation to corroborate his evidence about his financial situation. The Tenant already owes the Landlord approximately $3,600.00 in arrears of rent and in his testimony the Tenant was unable to provide a concrete date when he will be able to pay the Landlord this amount.

TSL-49814-14 (Re), 2015 CanLII 15596 (ON LTB)

6. The Tenant submitted that the N8 notice was defective because the termination date was not the end of the term or a period of the tenancy.

13. I would disagree with the Tenant on this point. The fact that the Landlord included a month in error does not nullify the N8 notice. The issue that must be determined by the Board is whether the Tenant paid his rent on time and if not, would the number of times he failed to do so meet the threshold of being “persistently late” in paying his rent. With respect to the notice, the issue is whether or not it contains sufficient particulars that the Tenant knows the case to be met.

EAL-59006-16 (Re), 2016 CanLII 88069 (ON LTB)

9. In a letter to the Landlord dated July 8, 2016 (which was provided to the Board by the Landlord’s legal representative), the Tenant’s legal representative stated the Tenant suffers from unspecified disabilities which had contributed to his having difficulty providing the requisite documents to the Landlord for a subsidy to be maintained. The Tenant’s legal representative stated at the hearing that these disabilities had contributed to the situation in which the Tenant’s rent had been late during the months in question. The Landlord’s representatives did not deny that the Tenant suffers from disabilities.

16. Finally, I note that at the time the N8 was served, the Tenant had paid rent late twice over two months in a tenancy that was more than a decade old. This is not a persistent late payment of rent, it’s two late payments. Had the Ontario legislature wanted subsection 58(1) of the Act to be so restrictive as the Landlord requests that I interpret it, the legislators could have written that a landlord could serve a notice of termination where “a tenant has failed to pay rent on two or more occasions” or something similar. It did not. It used the term “persistently”, which in my view suggests a pattern of continued late payments for a time that is significant to the tenancy in question. In this tenancy, two – even three - months of late payment are not “persistent”.

17. On this basis, the N8 portion of the Landlord’s application will be dismissed.