Consent Termination Re: N11 (LTB)

Residential Tenancies Act, 2006, S.O. 2006, c. 17, Section 43

43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,

(a) identify the rental unit for which the notice is given;

(b) state the date on which the tenancy is to terminate; and

(c) be signed by the person giving the notice, or the person’s agent.

(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,

(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);

(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and

(c) if the landlord applies for an order, the tenant is entitled to dispute the application.

46 (1) A notice of termination becomes void 30 days after the termination date specified in the notice unless,

(a) the tenant vacates the rental unit before that time; or

(b) the landlord applies for an order terminating the tenancy and evicting the tenant before that time.

(2) Subsection (1) does not apply with respect to a notice based on a tenant’s failure to pay rent.

SWL-30382-19-SA (Re), 2019 CanLII 87684 (ON LTB)

15. In The Law of Contract in Canada (1976) by G.H.L. Fridman, the learned author states at p. 123 as follows:

“There are other grounds which, either at common law or in equity, may justify the repudiation of consent once given so as to vitiate an otherwise valid contract. Whether what is involved is duress in the strict sense, undue influence as that notion was developed in equity, or the more modern, perhaps vaguer and more generalized idea of unconscionability, the essence of granting rescission of, or similar relief from an otherwise binding contract is that the victim’s consent was not obtained or given when he or she was physically, emotionally, or intellectually free and competent to give it, but was the product of some minatory, over-weening or improperly persuasive conduct on the part of the guilty party.” {emphasis added]

16. In Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA) Finlayson J.A. stated, in part, as follows:

… But not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to “a coercion of the will”, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no “realistic alternative” but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract, 2nd ed. (1984), at p. 376 et seq.). Duress has the effect of vitiating consent and an agreement obtained thorugh [sic] duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of the duress.

17. There was some inconsistency between the testimony of the Tenant and S.N. about who was in the office on March 9, 2019, when the Tenant was given the two notices and how many times and in what manner S.N. followed up with the Tenant to enquire as to whether she had signed the N11. There was also disagreement about what specific information or opinion that S.N. had given the Tenant about the potential outcome of a hearing. However, the salient facts that are not in dispute are:

a. The Tenant has a disability of which the Landlord was well aware;

b. The tenancy is of lengthy duration and is geared-to-income meaning there is significant financial benefit for the Tenant to preserve the tenancy;

c. The Tenant did not approach the Landlord with a request to terminate the tenancy. In fact, the Landlord made the decision to evict the Tenant and “offered” a way to avoid an eviction hearing;

d. The Tenant told the Landlord’s representative that she did not want to move;

e. The Tenant signed the N11 without the benefit of legal advice but filed a motion to set aside as soon as she did obtain legal advice; and

f. The Landlord’s representative acknowledged that it might have been the “pressure” the Tenant felt which had caused her to sign the N11 in spite of his having not imposed a specific time deadline.

18. The Tenant went into the meeting to which she was summoned by the Landlord with the expressed intention of maintaining her long term tenancy. She was given a choice between an eviction hearing and agreeing to vacate. If she had chosen the eviction hearing option the Board might have declined to evict her on the grounds that she had not been home and was not the person who allowed her son to enter the building on the day he caused the damage. Even if the Board had found her responsible, the Tenant would have had the opportunity to argue for relief, or at the very least, delay of eviction, in which case the Tenant might have ended up owing the $175.00 filing fee. So ultimately, the Tenant agreed to leave giving up a geared-to-income housing, providing financial stability in a unit she had occupied for 13 years rather than face a hearing and the potential of winning or risking losing and paying $175.00.

19. The fact that the Tenant, a disabled person without legal advice entered into such an improvident agreement, dictates that it would be unconscionable to let the agreement stand.

TSL-41201-13-SA (Re), 2013 CanLII 51078 (ON LTB)

1. This issue to be determined by the Board is whether the Landlord and the Tenant had an agreement to terminate the tenancy.

2. The residential property is a bachelor condominium unit. The Tenant has lived in the unit for 8 years.

3. The Tenant’s evidence was that she signed the Agreement to Terminate a Tenancy (Form N11) under duress and she had no knowledge and did not realize the consequences of what she signed. The Tenant initially stated that she signed the Form N11 without reading it, but later stated that she did read it but did not understand the consequences. The Tenant indicated that she was on anti-depressants when she read the Form N11.

4. The Tenant acknowledged that there had been an ongoing agreement with the Landlord to move out. However, the Tenant has been unable to find a new residence.

8. This motion is brought pursuant to subsection 77(8) of the Residential Tenancies Act, 2006 (‘the Act’), which states that after a hearing the Board may make an order setting aside the order if the landlord and tenant did not enter into an agreement to terminate the tenancy; or whether or not “the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order”.

Based on the evidence before me, I find that the Landlord and the Tenant agreed to terminate the tenancy on May 31, 2013 and they both signed the Form N11. I question the Tenant’s credibility because she initially stated that she did not read the document prior to signing, but then when questioned about that, indicated that she had read the document and was on anti-depressants at the time. I find that it is more likely than not, that the Tenant read the Form N11 and understood what she signed and the consequences. I say this because the Tenant had previously signed a Form N9 and sent it to the Landlord. Form N9 and Form N11 are both similar documents about terminating the tenancy. The Form N11 and the Form N9 both clearly indicate that the parties agreed to terminate the tenancy for the rental unit. As such, the Tenant knew or ought to have known the consequences of signing the Form N11 since she provided a very similar document to the Landlord to terminate the tenancy. The Tenant did not lead sufficient evidence that because of her medication she was unable to read/understand the document. Also, I am not of the view that the Tenant has provided sufficient evidence that she was under duress when she signed the N11. I say this because the Landlord mailed the Form N11 to the Tenant and as such, the Tenant would have time to read the document prior to signing it. This is not the case where the Landlord presented the document in person and hurried the Tenant to sign.

9. As a result of the above, I am not satisfied that it would not be unfair to set aside the order. As such, the Tenant’s motion shall be denied.

10. I have considered the Tenant’s submissions about a delay in moving out and taken into consideration that the Tenant has lived in the unit for 8 years. I also considered the Tenant’s health and employment situation. I considered the Landlord’s submissions and her health issues. As such, pursuant to subsection 77(8)(c) of the Act, I will delay the lifting the stay of order TSL-41201-13 for a short period of time, until July 8, 2013 in order to given the Tenant an opportunity to find a new residence.