Consent Termination (N11) Liability

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-16
CLNP Page ID:	1982
Page Categories:	[Personal Use Application (LTB)]
Citation:	Consent Termination (N11) Liability, CLNP 1982, <>, retrieved on 2024-05-16
Editor:	Sharvey
Last Updated:	2022/08/26

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

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

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(3) A notice of termination need not be given if a landlord and a tenant have agreed to terminate a tenancy. 2006, c. 17, s. 37 (3).

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77 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if,

(a) the landlord and tenant have entered into an agreement to terminate the tenancy; or

(b) the tenant has given the landlord notice of termination of the tenancy. 2006, c. 17, s. 77 (1).

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(4) On receipt of the application, the Board may make an order terminating the tenancy and evicting the tenant. 2006, c. 17, s. 77 (4)

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(6) The respondent may make a motion to the Board, on notice to the applicant, to have the order under subsection (4) set aside within 10 days after the order is issued. 2006, c. 17, s. 77 (6).

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(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (4), if,

(i) the landlord and tenant did not enter into an agreement to terminate the tenancy, and

(ii) the tenant did not give the landlord notice of termination of the tenancy;

(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or

(c) make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order. 2006, c. 17, s. 77 (8).

Pinto v. Regan and White v. Regan, 2021 ONSC 5502 (CanLII)

[26] On a motion to set aside an eviction Order under s. 77(6), the moving party is almost always the tenant. For that reason, the determination under s. 77(8)(b) of whether it would not be unfair to set aside the Order is normally focused on the fairness to the respondent landlord. As the moving party, the tenant would logically take the position that it would be fair for the Board to make the requested order, having regard to all the circumstances.

[27] Section 77(8)(b) does not specify which party bears the onus to prove the fairness or unfairness on a motion to set aside an eviction Order. Nor does it provide that either party is to satisfy the Board that the Order to set aside an Order must not be made if making that Order would not be fair, as that would put the burden on the respondent in either case. By using the double negative, the legislature placed the onus on the tenant to satisfy the Board that, having regard to all the circumstances, it would not be unfair to make the order requested.

[28] The Member had a positive duty under s. 77(8)(b) to grant the Order on each motion if it was satisfied it would not be unfair to make that order. In order to determine whether making that Order would not be unfair, the Board was required to make its order “having regard to all the circumstances”. The broad language to consider “all the circumstances” I take to mean the factual matrix that provides the context in which the dispute between the parties arose in its widest sense. This requirement reinforces the remedial nature of the RTA and its purpose to protect tenants’ rights: Musse, at paras. 53 and 58; Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1, at para. 19.

[29] If the Member made a decision on a motion under s. 77(6) without regard to all the circumstances, or by ignoring items of evidence the law required him to assess when he made findings of fact and reached conclusions, there was an error of law made: Canada v. Southam Inc., at para. 41. If the appellants can show that the Member incorrectly identified or interpreted the legal standard, failed to apply the proper test or ignored evidence he was bound to consider, he made an error of law: Yatar, at para. 28. Similarly, if the Member applied an incorrect standard than that prescribed by statute in the performance of his statutory duty, the result is an error of law: Musse, at para. 48.

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[38] The facts on each appeal suggest that the respondent’s intention to obtain vacant possession of each unit on a permanent basis without having to give notice to each appellant under s. 50 was behind each transaction. The real substance of those transactions was not considered by the Member on either motion. Nor did the Member consider if the respondent was acting in good faith when he interacted with each appellant to obtain their signatures on the N11.

[39] The Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, established the organizing principle of good faith applicable to all contracts. This principle requires the performance of contractual duties and obligations honestly, not capriciously or arbitrarily, and with regard to the legitimate contractual interests of the other party: see Bhasin, at paras. 63 and 65. The relationship between a tenant and a landlord is contractual in nature and requires that they discharge the obligations they owe to one another in good faith. This duty of good faith includes how the parties conducted themselves toward each other at the end of that relationship.

[40] Section 202 of the RTA imposed a statutory duty on the Member to determine questions of fact and to apply governing principles of law to ascertain the real substance of the transactions and activities regarding the rental units at issue, and the good faith of the parties to the N11. The Member did not consider all the evidence to determine the element of good faith on the part of the respondent other than making a passing reference in the Reasons. The Member did not take the totality of the evidence into account when he applied the substantive law. This amounted to an error of law.

Rabczak v. Dunford, 2020 ONSC 3031 (CanLII)

[12] Under ss. 77(1) to (4) of the Residential Tenancies Act, 2006, a landlord may apply to the Landlord and Tenant Board for an eviction order without notice to the tenant where the tenant has agreed in writing to leave. The application may be made before the agreed upon final date of the tenancy. But the eviction order cannot be effective before that date.

[13] A tenant who receives an eviction order under s. 77 is entitled to request an order to set aside the eviction order. Under s. 77(8)(b), after holding a hearing concerning the tenant’s request, the board “shall make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so.” [Emphasis added.]

[14] That is, even if the tenant has agreed in writing to leave, the board is required to refuse an eviction order where it would not be unfair to do so in all the circumstances. The Legislature has granted the board a broad, fact-based discretion to apply to assess the fairness of the parties’ situation.

[15] Section 83(1) of the statute also provides a similarly worded discretion to the board based on fairness in the circumstances that applies despite anything else in the statute to the contrary. Moreover s.83(2) of the statute positively prohibits the board from granting an eviction order “unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1)”.