Failure to Disclose Prior N12s

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2025-02-20
CLNP Page ID:	2470
Page Categories:	[Personal Use Application (LTB)]
Citation:	Failure to Disclose Prior N12s, CLNP 2470, <https://rvt.link/f3>, retrieved on 2025-02-20
Editor:	Sharvey
Last Updated:	2025/02/13

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Hassan v Tunney, 2025 ONLTB 6695

4. The Landlord agreed that the original declaration did not include those other N12 Notices. They submitted that they were not properly served on the Tenants, and therefore they served a new N12 Notice and submitted this application.

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6. I disagree with the Tenant submission that the termination date is the relevant date to determine which prior notices to include in the application. The Act clearly states that it is the “date the notice was given” as the determinative date to list all prior applications.

7. I have reviewed the decision in Lakeshore. I am not aware that this has been followed in other decisions issued by the Board. It is not binding on me, and I am not persuaded by it. I would note that in prior decisions Vice-Chair Shea determined that where the Landlord did not disclose prior notices that the Board is prohibited from evicting a tenant. See Said v Lyons, 2023 ONLTB 53473 (CanLII) and Star Towers Ltd v Wakunick-Fuery et al, 2023 ONLTB 64356 (CanLII). Both decisions state:

8. In my view, the correct way to interpret subsection 71.1(4) of the RTA is to prohibit the LTB from making an order under section 69 terminating the tenancy and evicting the tenant where it is established that the landlord has not complied with subsection 71.1(3).

9. The LTB’s Rules of Procedure require that a landlord specify: (a) the LTB file number, if any, associated with any previously delivered N12 or N13 notices; and, in the case of a notice delivered under section 50, (b) the intended activity for which the notice was delivered. [Rules of Procedure, Rule 4.10]

10. These provisions are intended to ensure that the tenant has full knowledge of all previously delivered N12 and N13 notices and the LTB has the evidence required to determine whether the landlord delivered the relevant termination notice in good faith. Subsection 73(2) of the RTA says:

73 (2) In determining the good faith of the landlord in an application described in subsection (1), the Board may consider any evidence the Board considers relevant that relates to the landlord’s previous use of notices of termination under section 48, 49 or 50 in respect of the same or a different rental unit

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11. I am not aware of a Divisional Court or Court of Appeal decision that is directly on the issues raised. I am aware of Miller Estate v. Arguelles, 2025 ONSC 112 issued on January 7, 2025, after this hearing had concluded. In that decision, the Divisional Court agreed with the Board. The Board had on its own motion amended the application. The Divisional court found the amendment appropriate and did not prejudice the tenant at paragraph 37: The amendment was appropriate, did not prejudice the tenant and was consistent with a fair and expeditious proceeding. I see no legal error.

12. I would distinguish the Divisional Court decision for two reasons: (1) in that case the undisclosed notice was given to the tenant, whereas in this application, the undisclosed notices were given to other tenants. (2) The Board’s Rules at Rule 15.4 do permit an amendment to an application, whereas it is the declaration attached as an Annex to the application that is being amended. In my view a declaration cannot be amended by the Board.

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21. While I would accept that, in certain circumstances, the appropriate result for non-compliance with subsection 71.1(3) might be the dismissal of the application, in the current instance I am satisfied that the Tenants in fact had actual notice of the previous N12 notices. One was served upon them, the other on their neighbour. From a procedural fairness standpoint, the Tenants in this application are not prejudiced, as they had full knowledge of the Landlord’s service of prior N12 notices They are not prejudiced in their ability to investigate any patterns in the Landlord’s use of N12 or N13 notices of termination, nor are they prejudiced in their ability to bring any such findings before the Board should they wish to argue, under subsection 72(3) of the Act, that the pattern undermines the professed good faith of the notice of termination. (emphasis Added)

22. In my view, this is a situation where the appropriate result is dismissal of the application. The Tenant is forestalled from investigating the Landlord’s good faith, because they were not aware of the notices served on other tenants. The Board also has a responsibility to ensure that there is not an abuse of legislative and Board processes; as such viva voca evidence is not appropriate to cure mandatory disclosure in a declaration, where the operative word in the legislative scheme is that they “shall” provide the information regarding all prior notices. In particular where it is the Legal Representative that has submitted an incomplete declaration that this warrants dismissal.

23. As a result, the Landlord application cannot proceed.