Invalid Date - Re: Notice (LTB)

CEL-08661-10-RV (Re), 2011 CanLII 34540 (ON LTB)

1. I determined that the Tenant did not receive the N4 Notice of Termination that the L1 application is based on; and that she did not receive the L1 Application or the Notice of Hearing (NOH).

2. The Certificate of Service (COS) for the N4 notice is dated October 7, 2011. On that date, the Landlord certified that he served the Tenant with the N4 notice on October 14, 2010 (7 days later). At the hearing, the Landlord could not explain how he could certify on October 7, 2010, that he served the Tenant a week into the future. He then said maybe the October 7, 2010 date was a typo.

3. At the review hearing, the Landlord said he served the Tenant the N4 notice the same day he filed “the papers” with the Board.

4. The Board’s file reveals that the Landlord filed his application on November 4, 2010. If the N4 notice was served on November 4, 2010 it would be invalid since the termination date in the notice is October 28, 2010. The N4 notice would have been served after the termination date and the Tenant would not have received the required 14 days notice.

5. The Landlord’s wife was a witness at the review hearing. She said she saw the Landlord personally serve the Tenant with the N4 notice. She said the Landlord served the N4 notice on October 4 or 9, 2010. Then she said the notice was served about a week before her birthday. She said her birthday is October 24, 2010.

6. There was no consistency between the COS, the Landlord’s testimony and the wife’s evidence. The evidence was confusing and contradictory. I could not determine what date the N4 notice was allegedly served. For this reason, I concluded that the Tenant was not served the N4 notice.

7. The evidence regarding the alleged service of the L1 Application and the NOH was just as inconsistent and confusing.

8. The date of service on the COS for the L1 application and NOH could not be read. At the review hearing, the Landlord said the date was November 19, 2010, later he said it was November 9, 2010. However, the COS was dated November 6, 2010. As with the N4 COS, it is not possible to certify on November 6, 2010 that the documents were served on either November 19, 2010, 13 days into the future, or November 9, 2010, 3 days into the future.

9. The Landlord’s wife said the Landlord served the Tenant with a second document (but she was not sure what it was) on October 19, 2010. The Landlord then corrected her and said she meant to say November instead of October. The wife’s evidence was not persuasive and could not support a conclusion that the Tenant was served with the Notice of Hearing.

10. The Tenant said that she never received a key to the Canada Post mailbox. She relied on the Landlord to collect and deliver her mail. The Landlord agreed with this.

11. The Tenant claimed her mail was often delivered late or not at all. She said that she never received the respondent letter that the Board mails when an application is filed. The Landlord gave no evidence regarding the respondent letter. Therefore, I accepted the Tenant’s evidence on this issue.

12. Since the Tenant had no independent means to receive her mail, I determined that the respondent letter was not received by the Tenant. As a result, the Tenant had no awareness of the original hearing.

TNL-17869-19 (Re), 2019 CanLII 134287 (ON LTB)

3. At the hearing, the Tenant’s legal representative noted discrepancies with regard to dates on the N12 Notice of Termination and the Certificate of Service. There were dates scratched out that cast doubt on whether the termination date was at least 60 days after the Landlord served the N12 Notice of Termination.

4. Consequently, the Tenant submits that the Landlord’s application should be dismissed because there was insufficient notice given to the Tenant, in contravention of subsection 48(2) of the Act.

5. RC, who signed the Certificate of Service, testified that she served the N12 Notice of Termination on the Tenant as a favour to her mother, the Landlord. She said that she did not have an exact memory of serving the N12 Notice of Termination, but the date of service noted on the Certificate of Service is correct.

6. The Tenant did not remember exactly when he received the N12 Notice of Termination.

7. According to section 3.8e of the Rules of Procedure under the Act, a document is considered served on the person on the day it was given to the person if delivered by hand.

8. RC, who served the N12 Notice of Termination, swore that it was served on the date stated on the Certificate of Service, and not on the date scratched out, or any other date. The Tenant did not refute the testimony, but rather, said he did not remember when he received it.

9. In the absence of any evidence to the contrary, I find, on a balance of probabilities, that the N12 Notice of Termination was validly served pursuant to subsection 48(2) of the Act.