Tenant's Motion to Void (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2053
Page Categories:
Citation:	Tenant's Motion to Void (LTB), CLNP 2053, <>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/01/20

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

74 (1) A landlord may not apply to the Board under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 before the day following the termination date specified in the notice. 2006, c. 17, s. 74 (1).

...

(9) Within 10 days after an order is issued under subsection (6), the landlord may, on notice to the tenant, make a motion to the Board to have the order set aside. 2006, c. 17, s. 74 (9).

...

(11) A tenant may make a motion to the Board, on notice to the landlord, to set aside an eviction order referred to in subsection (3) if, after the order becomes enforceable but before it is executed, the tenant pays an amount to the landlord or to the Board and files an affidavit sworn by the tenant stating that the amount, together with any amounts previously paid to the landlord or to the Board, is at least the sum of the following amounts:

1. The amount of rent that is in arrears under the tenancy agreement.

2. The amount of 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.

3. The amount of NSF cheque charges charged by financial institutions to the landlord in respect of cheques tendered to the landlord by or on behalf of the tenant, as allowed by the Board in an application by the landlord under section 87.

4. The amount of administration charges payable by the tenant for the NSF cheques, as allowed by the Board in an application by the landlord under section 87.

5. The costs ordered by the Board. 2006, c. 17, s. 74 (11); 2009, c. 33, Sched. 21, s. 11 (1).

(11.1) The Board shall refuse to accept for filing a motion under subsection (11), if the tenant has not complied with all the requirements of that subsection. 2017, c. 13, s. 15 (1).

(12) Subsection (11) does not apply if the tenant has previously made a motion under that subsection during the period of the tenant’s tenancy agreement with the landlord. 2006, c. 17, s. 74 (12).

(13) An order under subsection (3) is stayed when a motion under subsection (11) is accepted for filing by the Board and shall not be enforced under this Act or as an order of the Superior Court of Justice during the stay. 2006, c. 17, s. 74 (13); 2017, c. 13, s. 15 (2).

(13.1) For greater certainty, subsection (13) applies only if the affidavit filed by the tenant in support of the motion under subsection (11) complies with all the requirements of that subsection. 2017, c. 13, s. 15 (3).

(14) Subject to subsection (15), if a tenant makes a motion under subsection (11), the Board shall, after a hearing,

(a) make an order declaring the order under subsection (3) to be void, if the tenant has paid the amounts set out in subsection (11); or

(b) make an order lifting the stay of the order under subsection (3), if the tenant has not paid the amounts set out in subsection (11). 2006, c. 17, s. 74 (14).

(15) If, on a motion under subsection (11), the Board determines that the landlord has paid any non-refundable amount under the Administration of Justice Act for the purpose of enforcing the order under subsection (3), the Board shall specify that amount in the order made under clause (14) (a) and shall provide in the order that it is not effective unless,

(a) the tenant pays the specified amount into the Board by a date specified in the order; and

(b) an employee in the Board issues a notice under subsection (16). 2006, c. 17, s. 74 (15); 2013, c. 3, s. 27 (2).

(16) If subsection (15) applies to an order made under clause (14) (a) and the tenant pays the amount specified in the order into the Board by the date specified in the order, an employee in the Board shall issue a notice to the tenant and the landlord acknowledging that the eviction order is void. 2006, c. 17, s. 74 (16); 2013, c. 3, s. 27 (3).

(17) If subsection (15) applies to an order made under clause (14) (a) and the tenant does not pay the amount specified in the order into the Board by the date specified in the order, the stay of the order under subsection (3) ceases to apply and the order may be enforced. 2006, c. 17, s. 74 (17).

CEL-63426-16-VO (Re), 2017 CanLII 48432 (ON LTB)

4. It is clear that the motion is made prior to the actual hearing when subsection 74(13) of the Act is considered. That subsection states that the eviction order is stayed when the motion is “received by the Board”. The motion acts as an automatic stay on the eviction order. The motion would have been “made” for the stay to come into effect.

5. As a result, I find that a motion to void is made when it is received by the Board.