Multiple Notice's Cause Confusion (LTB)

(Re), 2018 CanLII 120835 (ON LTB)

1. The Tenant made a preliminary motion to dismiss the Landlords’ application.

2. It is the Tenant’s position that because of confusion resulting from the Landlords having served the Tenant with N5 and N6 and N7 notices at the same time with the same termination date claiming in all three the same two reasons for ending the tenancy and evicting the Tenant, namely, for having removed the baseboard heaters and for fire code violations.

3. It is undisputed that an additional allegation in the N5 notice (not made part of the N6 and N7) regarding the Tenant obstructing access to the parking lot was corrected by the Tenant within the 7 day period following the service of the N5 notice. Therefore the allegation in N5 respecting parking has been voided in accordance with section 64(3) of the Residential Tenancies Act, 2006 (Act).

4. The only other issue in the N5 that is also not included in the N6 and N7 is the allegation that the Tenant interfered with the Landlords’ attempts to access the rental unit to perform maintenance. I find that this allegation has also been voided because it is not disputed that the Landlord did not seek further access to the rental unit within the 7 day voiding period.

12. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

13. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told he can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

14. Further, I cannot see how it makes any difference in what way the Tenant is able to void the N5 notice, such as paying for the repairs within the 7-day period, when that notice is being compared with the N6 and N7 notices with respect to whether the combination of all three when served together creates confusion.

15. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s application to terminate the tenancy in the absence of valid notices of termination.

TSL-96380-18 (Re), 2018 CanLII 120849 (ON LTB)

1. On March 16, 2018, the Landlord caused a first N5, N6, and N7 notices of termination to be given to the Tenant on March 16, 2018 with each containing the same schedule attached outlining the Landlord’s complaints. The N6 and N7 notices are the basis for the L2 application with a termination date of April 30, 2018.

2. A second N5 notice was given to the Tenant with a termination date of July 31, 2018. The schedule attached to the second N5 notice appears to be the same one that was attached to the first N5 notice. The second N5 notice is the basis for the L2 application with a termination date of July 31, 2018.

3. Notwithstanding the impugned conduct is common to all three notices, only the first N5 notice provides that in order to avoid eviction the Tenant has 7 days to stop the activities or correct the complained about behaviour. The N6 and N7 notices do not permit the Tenant to avoid eviction by stopping the complained of activities and paying for repairs within 7 days. In other words, simultaneously, the Tenant is being told she can and cannot avoid eviction for the same impugned conduct.

4. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices…

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

5. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told she can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

6. In file number SWL-42630-12 the Vice-Chair denied the landlord’s request for termination under the L2 application because the notices given to the tenant lacked detail and “service of two different notices in respect of the same issue, one voidable and one not, is sufficiently confusing that the tenant would reasonably have been confused by receipt of those multiple notices.”

7. I find the reasoning in file number SWL-42630-12 persuasive and as a result I find the first N5 and the N6 and N7 notices given to the Tenant are nullities. Furthermore, because the second N5 is, in fact, a first N5 but indicates on its face that it is not voidable, it, too, is a nullity.

8. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s L2 applications to terminate the tenancy in the absence of valid notices of termination.

TSL-93796-18 (Re), 2019 CanLII 87094 (ON LTB)

1. On February 27, 2018, the Landlord gave the Tenants an N5 notice and an N7 notice to end their tenancy based upon the substantially same allegation of wrongdoing as follows:

(a) In the N5 notice it is alleged: “Friday, 12th January 2018 13:58. Tenant D.A drove his truck into #.H.A indoor garage door damaging the mechanical operation of the door and dismantling the lower panel. Due to the dysfunctional garage door the attached sequence of events occurred causing the cost on page 1 of this notice ($4,276.01).

(b) In the N7 notice it is alleged: “Friday, 12th January 2018 13:58. D.A impaired the safety of the tenants in the residential complex by speeding down the ramp of # .H.A damaging the garage door and shattering his windshield. Video available.

2. Notwithstanding the impugned conduct is common to both the N5 and N7 notices, only the N5 notice provides that in order to avoid eviction the Tenants have 7 days to stop the activities and correct the complained about behaviour by paying $4,276.01. The N7 notice does not permit the Tenants to avoid eviction by stopping the complained of activities within 7 days and paying $4,276.01. In other words, simultaneously, the Tenants are being told they can and cannot avoid eviction for the same impugined conduct.

3. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination; as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

4. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that is inconsistent and therefore causes confusion. That is exactly what has occurred in the present case where the Tenants are being told they can and cannot avoid eviction for the same impugned conduct. This contradictory direction is improper and would likely confuse any reasonable tenant.

5. Thus, it is inconsistency with respect to avoiding eviction that is the flaw in the procedure adopted by the Landlord. It would, indeed, be a rare tenant who could claim they are not confused by two notices of termination of their tenancy given to them virtually simultaneously based on substantially the same conduct where one is voidable and the other is not.

6. For these reasons, I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is inconsistent and confusing and causes both notices before me to be defective. I cannot consider the Landlord’s L2 application to terminate the tenancy in the absence of valid notices of termination.

TSL-93538-18 (Re), 2018 CanLII 120835 (ON LTB)

2. It is the Tenant’s position that because of confusion resulting from the Landlords having served the Tenant with N5 and N6 and N7 notices at the same time with the same termination date claiming in all three the same two reasons for ending the tenancy and evicting the Tenant, namely, for having removed the baseboard heaters and for fire code violations.

12. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:

Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….

Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.

13. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told he can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.

14. Further, I cannot see how it makes any difference in what way the Tenant is able to void the N5 notice, such as paying for the repairs within the 7-day period, when that notice is being compared with the N6 and N7 notices with respect to whether the combination of all three when served together creates confusion.

15. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s application to terminate the tenancy in the absence of valid notices of termination.

TSL-84761-17 (Re), 2017 CanLII 84842 (ON LTB)

2. First of the more compelling of these submissions, mentioned more as an aside than as a determination, related to the widespread practice of attaching a single schedule attached to several notices of termination. In my experience, this can cause confusion to tenants, especially if one of the notices it is attached to is a voidable N5. Separate schedules are desirable for clarity, so that a tenant wanting to defend an application based on such notices can clearly understand what alleged acts might apply to which notice.

4. In any event, the most compelling of the Tenants’ arguments related to the two cover letters enclosing the notices of termination served on the Tenants. Each contained standard wording on law firm letterhead indicating who the firm represented, which notices of termination were enclosed and that they were being served in accordance with the Residential Tenancies Act, 2006 (the ‘Act’). Below but above the signature line (along with the standard wording “govern yourself accordingly”) were further statements that entirely misstated the law. In the letter enclosing the behavioural notices of termination, the wording was: “you will note that you must move out of the above-noted rental unit on or before May 19, 2017.” In the letter enclosing the arrears of rent application, the wording was: “you will note that must void the notice or move out of the rental unit by April 21, 2017.”

5. In fact, tenants need not vacate rental units as a result of notice of termination, where the Landlord and Tenant Board’s pre-printed forms say: “you do not have to move out if you disagree with what the landlord has put in this notice.” The approved notices of termination go on to say that the landlord can apply to evict a tenant after a hearing, essentially repeating what is provided in subsection 43(2) of the Act.

6. Subsection 43(1) of the Act also provides that notices of termination shall be in the approved form, which these were, but the cover letters directly contradicted them. It is, in my view, analogous to altering the pre-printed forms with text to contradict them.

7. Even more egregious is that the misleading letters were on a law firm’s letterhead, likely on top of the notices of termination, with the correct statements buried in the smaller print of the notices. There is nothing wrong with enclosing a form of demand letter with a notice of termination (although I am uncertain of the point), but enclosing one that is misleading cannot be.

8. The notices of termination preceding the applications were therefore determined to be void at the hearing and termination of the tenancy could not be ordered.