Notice Law - N4 (Non-Payment of Rent)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	496
Page Categories:	[Payment of Rent (LTB)], [Defective Notice (LTB)]
Citation:	Notice Law - N4 (Non-Payment of Rent), CLNP 496, <https://rvt.link/7o>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/08/16

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Residential Tenancies Act, 2006

59 (1) If a tenant fails to pay rent lawfully owing under a tenancy agreement, the landlord may give the tenant notice of termination of the tenancy effective not earlier than,

(a) the 7th day after the notice is given, in the case of a daily or weekly tenancy; and

(b) the 14th day after the notice is given, in all other cases. 2006, c. 17, s. 59 (1).

Contents of notice

(2) The notice of termination shall set out the amount of rent due and shall specify that the tenant may avoid the termination of the tenancy by paying, on or before the termination date specified in the notice, the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement as at the date of payment by the tenant. 2006, c. 17, s. 59 (2).

Notice void if rent paid

(3) The notice of termination is void if, before the day the landlord applies to the Board for an order terminating the tenancy and evicting the tenant based on the notice, the tenant pays,

(a) the rent that is in arrears under the tenancy agreement; and

(b) the additional rent that would have been due under the tenancy agreement as at the date of payment by the tenant had notice of termination not been given. 2006, c. 17, s. 59 (3).

...

106 (1) A landlord may require a tenant to pay a rent deposit with respect to a tenancy if the landlord does so on or before entering into the tenancy agreement.

(2) The amount of a rent deposit shall not be more than the lesser of the amount of rent for one rent period and the amount of rent for one month.

(6) A landlord of a rental unit shall pay interest to the tenant annually on the amount of the rent deposit at a rate equal to the guideline determined under section 120 that is in effect at the time payment becomes due.

(9) Where the landlord has failed to make the payment required by subsection (6) when it comes due, the tenant may deduct the amount of the payment from a subsequent rent payment.

Braks v Bailey, 2013 CanLII 57485 (ON SCSM)

18. It has been held that the notice requirements under the Act are to be strictly interpreted, whether the notice is given by the landlord or the tenant: George V. Apartments Ltd. v. Cobb, (2002) O.J. No. 5918 (Div. Ct.). The requirement that notice be given in writing applies despite any agreement between the parties to the contrary or any waiver, by virtue of s. 3(1): see Nistap Development Corp. v. McIntyre, (2009) O.J. No. 2960 (Div. Ct.). Those appellate authorities are binding on this court.

19. I therefore find that although Ms. Bailey gave notice on January 24, 2012 of termination effective March 31, 2012, in law that notice was invalid because it was not given in writing. Ms. Bailey therefore breached the month-to-month tenancy by moving out on March 31, 2012 without having given valid notice under the Act. The question then becomes what damages result from that breach.

TEL-14224-11 (Re), 2011 CanLII 34685 (ON LTB)

4. The Tenant paid $776.47 for April’s rent in March 2011, which was not credited to her at the time the Landlord served the N4 Notice and filed the L1 application. As a result, I find that the N4 Notice is defective and the tenancy cannot be terminated at this time. The Landlord chose to proceed with the application, seeking rent arrears and costs only.

CEL-06197-10 (Re), 2011 CanLII 5921 (ON LTB)

1. At the time the N4 was filed, it was defective as the rental arrears claimed for March 2010 were paid. The application for termination could not proceed as the N4 notice on which it was based was void. Therefore the Landlord’s application is dismissed.

2. Irrespective of the fact that the Tenant may have incurred new arrears by the date of the Landlord’s application filed on August 3, 2010, (namely that the Tenant owed rent for August 2010), and arguably she incurred further rental arrears after that date, because the N4 is fatally defective, the Board cannot terminate under this application. The Landlord did not seek to amend the application to pursue arrears only. Accordingly such arrears claims cannot be adjudicated by means of this application.

3. Rule 1.4 of the Landlord and Tenant Board’s Rules of Practice and case law concerning the notice provisions in the Act uphold a strict interpretation for any problems found in an N4 Notice. Rule 1.4 does not allow a member to disregard any defect in a document created before the application is filed.

TSL-85025-17 (Re), 2018 CanLII 42621 (ON LTB)

2. The Landlord requested to amend the application to correct the name of the corporation in the style of cause. The Tenants did not dispute that the Landlord was incorrectly named in the application and in the notice of termination but they argued that the incorrectly named landlord rendered the notice of termination void. However, as I explained at the hearing, section 43 of the Residential Tenancies Act, 2006 the “Act”), which sets out the essential elements of a notice of termination, does not specifically state that a landlord must be correctly named in a notice. Therefore, I find that the landlord’s failure to name itself correctly in the notice does not render it defective and void.

3. The Tenants also raised the recent amendment to section 48 of the Act, which prevents a corporation from filing a landlord’s own use application. However, that amendment came into effect on May 30, 2017, several months after the Landlord’s application was filed and it does not apply to this application. In the present case, the Landlord corporation owns the residential complex. It filed an application seeking vacant possession of the rental unit so the son of the sole owner of the corporation can move into the unit. I am satisfied that the individual owner, CB, is the directing mind of the corporation. As such, I am satisfied that CB meets the definition of “landlord” in the Act because he is also an owner of the rental unit. Accordingly, CB will be referred to as the Landlord in the remainder of this order. This approach is consistent with the court’s decision in Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII).

Nejad v Preddie, 2016 ONSC 4348 (CanLII)

[40] In Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.), the tenant appealed an order terminating a tenancy under the Tenant Protection Act, 1997, S.O. 1997, c. 24 following service of a Notice to Terminate a Tenancy Early in Form N5 under that Act. As with the N4 here, the Tenant Protection Act required that the notice set out the grounds for termination. The Court found that the notice was seriously deficient in that it failed to provide details about the reason for notice, was void as a result, and that the Member had no jurisdiction to make the order requested.

CEL-59665-16-RV (Re), 2016 CanLII 88119 (ON LTB)

15. In some situations, the actual address a person resides at is not an address where mail is reliably delivered. For example, a rural address may not have mail delivery and a P.O. Box in the closest town will be the mailing address. In that situation, a landlord would never be able to comply with the narrow interpretation of section12.

16. As long as the Landlord provided an address for service of documents the requirement of section12 has been met. The address does not have to be the personal address where the Landlord resides.

17. This reasoning was adopted by the Ontario Divisional Court in N v P, 2016 ONSC 4348 (CanLII). The Court determined that providing the address of the landlord’s lawyer for service of documents met the requirements of section12 of the Act.

18. Since the Landlord provided an address for service of documents in the written tenancy agreement, the Tenants’ obligation to pay rent was not suspended and the finding that the N4 notice was not permitted was a serious error.

TSL-75068-16 (Re), 2017 CanLII 60205 (ON LTB)

11. By the Member’s decision on the rent increases, the Notice to Terminate (N4) was found to be invalid for citing the wrong amount of legal rent. The request for review complains that the Landlord cited the rent that he thought was lawful at the time. It is always the case that what the Board determines in relation to the content of the notice affects the validity of the notice itself. The Member’s decision that the legal rent was $1,600.00 per month, made the requirement within the Notice to set out the legal rent unmet, so the Notice is void. I see no error in the Member having found that the N4 was not valid.

TSL-72945-16 (Re), 2016 CanLII 53015 (ON LTB)

4. While the unit may be exempt from the prescribed guideline rent increases, the requirements for notice of a rent increase set out in section 116 of the Act still apply; the relevant provisions of that section are:

116. (1) A landlord shall not increase the rent charged to a tenant for a rental unit without first giving the tenant at least 90 days written notice of the landlord’s intention to do so.

(4) An increase in rent is void if the landlord has not given the notice required by this section, and the landlord must give a new notice before the landlord can take the increase.

5. Here the Landlord’s position is that the Tenant was served with a notice of rent increase (“NORI”) to take effect on April 1, 2015 and increasing the monthly rent to $1,050.00. The Landlord further contends that Tenant was served with a subsequent NORI to take effect on April 1, 2016 and increasing the monthly rent to $1,075.00.

6. The Tenant disagrees. He alleges that after being served with a NORI to take effect on April 1, 2014 and raising the rent to $1,015.00, he was not served with another NORI until January 3, 2016, to take effect until April 1, 2016 and raising the rent to $1,075.00. As he was not served with a NORI 90 days prior to April 1, 2015, the Tenant submits that the Landlord was not entitled to raise the rent to $1,050.00, effective that date.

7. The Tenant further submits that the N4 notice of termination upon which the within L1 application is predicated is defective as it is based on erroneous monthly rental charges for the rental periods where it claims that the monthly rent was $1,050.00.

8. I agree with the Tenant’s submissions and the Landlord’s application will be dismissed for the following reasons.

9. The Landlord produced a “Notice of Rent Increase (Serving List)”, outlining units that were served with NORIs on January 3, 2016 for rent increases to take effect on April 1, 2016. The Tenant’s unit is on that list. However, no evidence was provided, by way of viva voce testimony or otherwise, to establish that the Tenant was served with a NORI at least 90 days prior to April 1, 2015.

10. I am unable to accept the submissions of the Landlord’s legal representative that, as the Landlord served the Tenant with a NORI to take effect on April 1, 2014 and April 1, 2016, on a balance of probabilities, the Landlord served a NORI to take effect on April 1, 2015. Needless to say, were I to make such a finding of fact, I would be doing so based on no evidence and/or speculation or conjecture and that would amount to an error of law.

11. As such, I am left with the Tenant’s affirmed and uncontradicted testimony that he was not served with a NORI 90 days prior to April 1, 2015 and, in the circumstances, I must accept the Tenant’s evidence as true: Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.) at 305.

Williams v 1175326 Ontario Ltd., 2016 ONSC 7781 (CanLII)

[6] In late 2015, the respondent, along with other tenants, filed an application for a rebate alleging that the landlord had been charging unlawful rent since at least December 31, 2012. The Board heard the matter over two days. With the exception of three tenants, the Board dismissed the tenants’ application. In doing so, the Board determined that the unsuccessful tenants (who included the respondent) had not challenged the rent increases within the one year limitation provided for in the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) and thus had lost their rights to dispute the rent increases.

[7] The unsuccessful tenants sought a review of the Board’s decision. That review was dismissed.

[12] The tenant, both before the Board and now on this appeal, places her entire argument on her reading of the decision in Price v. Turnbull's Grove Inc. (2007), 2007 ONCA 408 (CanLII), 85 O.R. (3d) 641 (C.A.) which she says renders the manner, in which the landlord proceeded with its Notices of Rent Increase, a nullity. The respondent needs to have the finding of a nullity, in other words that the Notices of Rent Increase are void, in order to avoid the effect of s. 136 and the one year limitation period.

[13] The Board held that the respondent’s reading of Price was fundamentally flawed. The Board held that the principle in Price only applied if the landlord failed to give the requisite written notice. It did not apply if the flaw in the Notice related to other matters, such as an improperly calculated or claimed rent increase.

[14] In my view, the Board’s conclusion in this regard is correct. It is supported by the plain language of the decision in Price. The respondent’s contention that the finding of a nullity can go beyond the notice requirement is not only incorrect, it is expressly rejected by that decision. Indeed, the factual circumstances raised in this matter were specifically addressed in Price, where Cronk J.A. said, at para. 42:

Fifth, while Part VI of the Act prohibits various conduct in respect of rent and rent increases, only conduct concerning a rent increase that offends s. 127(1) renders the increase void under Part VI. This signifies the importance of the s. 127(1) notice requirement to the rent control scheme established by the Act. For example, rent charged in contravention of s. 121(1) of the Act - rent in an amount that is greater than the lawful rent permitted under Part VI of the Act - is not deemed to be void under Part VI of the Act. This type of “tainted” rent charge, therefore, could be subject to the remedial effect of s. 141(1) of the Act in a proper case. Similarly, where proper notice of a proposed rent increase is given in conformity with s. 127(1) of the Act, but the amount of the proposed increase exceeds the permitted increase prescribed by the guideline under the Act - in contravention of s. 129(1) of the Act - s. 141(2) may be engaged.

[17] One other argument should be addressed. The respondent points to the fact that there was an earlier decision of the Board, involving this same building, that concluded, in similar circumstances, that the Notice of Rent Increase was void. I make the following observations with respect to that argument. First, the Board member here was not bound by an earlier decision of another Board member. While consistency is desirable as a general rule, it is not a requirement. Second, the earlier decision turns on a misreading of the decision in Price. The Board member here was not obliged to follow a flawed decision, even in the interests of consistency. Third, the earlier decision is not, of course, binding on this court. This court is, however, bound by the decision of the Court of Appeal.

[18] The appeal must therefore be quashed.

Price v. Turnbull's Grove Inc., 2007 ONCA 408 (CanLII)

[23] I agree with the appellant that the challenged rent increase imposed by TGI in November 2002 was void by operation of s. 127(4) of the Act and, consequently, that it was of no [page647] legal force or effect. I also agree that ss. 141(1) and (2) of the Act do not operate in this case to render the void rent increase lawful. It follows, in my opinion, that the Divisional Court erred by failing to consider the effect of ss. 127(1) and 127(4) of the Act in the circumstances of this case and by holding, as it appears to have done, that the rent increase attacked by the appellant was deemed to be lawful by virtue of s. 141 of the Act. I reach these conclusions for the following reasons.

SOL-22618-12 (Re), 2012 CanLII 21446 (ON LTB)

1. On December 6, 2011, the Landlord served the Tenant with a notice to terminate a tenancy (Form N4) with a termination date of December 20, 2011. The amount claimed to be in arrears was $1,000.00.

2. On January 5, 2012, the Landlord served the Tenant with another N4 claiming that the Tenant was charged rent of $1,000.00 in January; that he had paid $700.00 to the Landlord and that $1,300.00 was owed as rent on January 5, 2012. This second N4 is defective as the amount the Landlord claimed as owed should have been written in a manner that indicated that the amount included unpaid rent from December 2011.

3. The termination date on the second N4 is January 19, 2012. The Landlord filed the L1 application with the Board on January 16, 2012. The second N4 superseded the first N4. The Landlord therefore should have filed the L1 application with the Board after the termination date set out in the second N4 (that is after January 19, 2012).

4. In addition, the serving of the two N4’s on the Tenant was confusing as the Tenant did not know how much he had to pay the Landlord to void the N4.

5. I find that the Landlord should not have served the Tenant with a second N4 when he still had a valid N4 served on the Tenant in December 2011. In the alternative the Landlord should have indicated on the N4 that the Tenant owed him $300.00 from December and that he also owed him $1,000.00 in January 2012.

6. As the Tenant found the notices served on him confusing, I find that I cannot proceed with the hearing of the merits on the Landlord’s application.

7. The Board’s Interpretation Guidelines provides that the Notice of Termination is an essential step in the landlord’s process of evicting a tenant. The Board will not terminate a tenancy and order eviction of the tenant unless the tenant has received a valid Notice of Termination from the landlord. If the document given to the tenant or the method or time of service is defective this may result in dismissal of the application or the denial of the eviction portion of the application.

EAL-67898-17 (Re), 2017 CanLII 84881 (ON LTB)

5. The current Notice of Termination is invalid because it misled the Tenant as to how much he needed to pay in order do to avoid being the subject of an application for eviction. Subsection 59(2) of the Residential Tenancies Act, 2006 (the ‘Act’) states that a notice of termination “shall set out the amount of rent due and shall specify that the tenant may avoid the termination of the tenancy by paying, on or before the termination date specified in the notice, the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement as at the date of payment by the tenant”. By suggesting to the Tenant that the current N4 Notice of Termination could only be voided if the Tenant also paid the arrears that were addressed in the previous order, and not merely the rent that had become due after the Board’s previous order, the Landlord was in effect attempting to circumvent the Board’s decision in the previous order not to order eviction on the basis of rent owing to May 31, 2017. The appropriate recourse that was available to the Landlord to challenge the previous order would have been to file a request for review. This was not done. Accordingly, it was not open to the Landlord to file a new application for eviction on the basis of the same rent arrears as those which had already been addressed by a decision of the Board.