The impact of O Reg 73/20 on Notices Issued under the Residential Tenancies Act, 2006

Overview

This article attempts to address the question,

Will a Notice given under the Residential Tenancies Act, 2006 ("RTA") be considered valid notice where:

(1) a Notice of Termination was served prior to March 16, 2020 with a termination date that was also prior to March 16, 2020 BUT has not yet been filled as part of an application before the board.

(2) A Notice of Termination was served prior to March 16, 2020 with a termination date that falls on or after March 16, 2020.

(3) A Notice of Termination was served on or after March 16, 2020.

A State of Emergency

A State of Emergency was declared pursuant to Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 at 7:30 a.m. Toronto time pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act (the “Act”);

The Order in Counsel reads:

And Whereas the criteria set out in subsection 7.1 (2) of the Act have been satisfied;

Now Therefore, an Order is made pursuant to subsection 7.1 (2) of the Act, the terms of which Order are the following:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

Notice Provision under the RTA

48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by, (...)

(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 48 (2).

49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by, (...)

(3) The date for termination specified in a notice given under subsection (1) or (2) shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 49 (3).

50 (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,

(a) demolish it;

(b) convert it to use for a purpose other than residential premises; or

(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit. 2006, c. 17, s. 50 (1).

(2) The date for termination specified in the notice shall be at least 120 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 50 (2).

51 (1) If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description. 2006, c. 17, s. 51 (1).

58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

1. The tenant has persistently failed to pay rent on the date it becomes due and payable.

2. The rental unit that is the subject of the tenancy agreement is a rental unit described in paragraph 1, 2, 3 or 4 of subsection 7 (1) and the tenant has ceased to meet the qualifications required for occupancy of the rental unit.

3. The tenant was an employee of an employer who provided the tenant with the rental unit during the tenant’s employment and the employment has terminated.

4. The tenancy arose by virtue of or collateral to an agreement of purchase and sale of a proposed unit within the meaning of the Condominium Act, 1998 in good faith and the agreement of purchase and sale has been terminated. 2006, c. 17, s. 58 (1).

(2) The date for termination specified in the notice shall be at least the number of days after the date the notice is given that is set out in section 44 and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 58 (2).

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).

(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).

(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).

62 (1) A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex. 2006, c. 17, s. 62 (1).

(2) A notice of termination under this section shall,

(a) provide a termination date not earlier than the 20th day after the notice is given;

(b) set out the grounds for termination; and

(c) require the tenant, within seven days,

(i) to repair the damaged property or pay to the landlord the reasonable costs of repairing the damaged property, or

(ii) to replace the damaged property or pay to the landlord the reasonable costs of replacing the damaged property, if it is not reasonable to repair the damaged property. 2006, c. 17, s. 62 (2).

70 A landlord may not apply to the Board for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 62, 64 or 67 before the seven-day remedy period specified in the notice expires.

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.

The COVID-19 Suspension Test

The core question(s) that must be answered is;

Did the legislator intend to suspend actions required to be taken pursuant to Notices of Termination served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 when issuing the Order in Council 518/2020 (Ontario Regulation 50/20). If the answer is found to be in the affirmative then, what are the consequences with respect to the Notices Served?

Part One

Part one is an attempt to consider the question, did the legislator intend to include Notices of Termination served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 when issuing the Order in Council 518/2020 (Ontario Regulation 50/20)?

Question One

Is a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 a provision of any statute, regulation, or rule contemplated by Order in Council 518/2020 (Ontario Regulation 50/20)]?

Question Two

Does a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 establish any period of time within which any step must be taken?

The key provision of the above, is the inclusion of the word must. I would note that the term must denotes something that is not optional, and therefore required to bring about a desired effect, in this case to bring about any consequences stated on a Notice of Termination.

Question Three

Is a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 part of a proceeding in Ontario, or an intended proceeding?

I would submit in the affirmative

I would submit that all three conditions must be true for the suspension to apply.

Given the first part of the test, I would submit that Notice of Termination ("Notice") served in accordance with the Residential Tenancies Act, 2006 is subject to the Order in Council 518/2020 (Ontario Regulation 50/20).

Part Two

Making the assumption that a Notice of Termination meets the criteria to pass part one of this test then the following considerations must apply.

Subject to the discretion of the tribunal,

Foot Notes

[1] The term served refers to a document that is deemed to be delivered pursuant to the Landlord and Tenant Board Rules.