Motion to Void (Making Payments)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1894
Page Categories:	[Payment of Rent (LTB)], [Set Aside]
Citation:	Motion to Void (Making Payments), CLNP 1894, <6h>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2022/03/25

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TNL-06006-SA (Re), 2008 CanLII 82455 (ON LTB)

4. The Tenants say that they tried to pay the funds required to void to order into the Board, but needed guaranteed funds to do so. At the time the Tenant [Tenant(2)’s name removed] swore his affidavit, he had not yet delivered the (personal) cheque to the Landlord, so that no payment was actually made to the Landlord. Sometime after he swore the affidavit, he asked his brother to deliver the cheque.

5. Although the cheque may represent an intention, or promise, to pay, by the date of the hearing, the Landlord had not, in fact, been paid. In the case of a personal cheque, the recipient has not been paid – is not in possession of the funds – until the cheque clears.

6. The Tenants say the Landlord could have confirmed that the cheque was good by going to the brother’s bank branch in Hamilton. By contrast, the Landlord’s evidence is that a trip to Hamilton would have been redundant, as the bank was unable to confirm the issuer’s signature. The Landlord’s bank, in its letter her (which is undated but that refers to the January 14, 2008 deposit), states that:

In order to make the funds available, we would have to get in touch with the issuer of the cheque, which we have not been able to do so [sic] upon several attempts. We have also failed to verify the signature through the issuers [sic] home branch, therefore the only negotiating option is to allow the cheque to clear through the account using the regular 5 business day hold. Since the deposit was made on January 14, 2008, it will clear the account and be available for you on January 22, 2008.

7. It is incumbent on the Tenants, in attempting to void the order, to ensure that payment is actually made. The Tenants chose to wait until the eve of enforcement by the Sheriff, at which point they tendered a personal cheque and expected the Landlord to verify that cheque.

8. On the evidence before me, because the funds will not be available to the Landlord until January 22, 2008 (if at all), as at January 14, 2008 (the date of the Tenants’ affidavit in support of their motion) and the date of hearing, the Tenants have not paid any amounts required under subsection 74(11) of the Act to void the eviction order.