Wednesday, February 13, 2013

Residential Tenancies Act Use of Landlord Notices v. Tenant Applications Doesn't Make Sense

I do a lot of mentoring, and one of the things that strikes my students is that tenant applications at the Landlord and Tenant Board are pleaded by way of an application, while landlord applications are pleaded by way of a notice of termination, followed by an application.  But the landlord's applications don't plead facts or law, they are just administrative contrivances that provide the LTB with sufficient info so that they can set up a hearing date and bill the applicant the $170 filing fee.  With a few exceptions, facts and remedies are set out in the landlord's notices of termination.

If a landlord interferes with a tenant's enjoyment, the tenant files a T2 application.  If they fail to maintain the unit or complex, the tenant files a T6.  If they retain or collect money illegally, the tenants files a T1.  And if they discontinue or reduce a facility or service, the tenant files a T3.  All the facts are set out on these tenant application, and the order sought is also set out, with compensation up to $25,000. 

The use of notices to plead a landlord's claim doesn't make any sense, except for the first, voidable N5 notice of termination, and the always voidable N4 notice for rent arrears.  Except for these two cases, landlords should be drafting their pleadings as part of the L2 application process.  Let's suppose the tenant has committed an illegal act (N6), seriously impaired safety (N7), paid rent persistently late (N8), misrepresented income in social housing (N6), or caused willful damage (N7).  Or supposed they have caused damage through negligence, interfered with the enjoyment of the landlord or tenant, or interfered with a landlord's lawful right, interest or privilege, and this is the second notice in a six month period.  None of these actions can be voided under the RTA.  Yet the LTB makes landlords serve a notice first, which must contain all the facts, and only after it's served on the tenant, the landlord files an application to get a hearing date.  The very nature of a notice suggests that it is a precursor to the recipient taking some action to cure or remedy a breach.  But you can't remediate these notices!

So what's the big deal, just another step for the landlord, and no cost to serve a notice?  But it is a big deal.  The Board regards a notice served by a landlord pleading facts very differently from a tenant's application served by a tenant pleading facts.  The primary difference in approach is that the Rules permit an application filed by a tenant to be amended. And they are amended all the time, with service of the amendment to the landlord and on consent of the Member.  If the tenant's claim widens, if the behaviour persists or worsens, or the monetary damages increase, the tenant simply files an amended application and those amended facts are litigated come hearing day.

But the Board has no process allowing a landlord to amend a notice and in fact, will not permit it.  The Board takes the position that a notice as served is final, and has to be perfect, and if not it is fatally flawed.  They required that it have dates, times and specifics, and that nothing can be added after the notice is served up to the time the hearing takes place.  So even if a tenant continues the behaviour, the behaviour worsens, etc., you are limited to arguing the case at trial exactly as it was pleaded in your original N5, N6 or N7 notice.

The genesis of this practice, "which has absolutely no support in law", is that N4 notices of termination (for rent) and first N5 notices (for interference with enjoyment and negligent damage) are voidable, that is, if the tenant corrects the behaviour set out in the notice within a specific time after being served the notice, then the notice is void and the landlord can't file an application.  I agree that the statutory framework suggests that those two notices can't be amended and must be crystal clear, as they represent conduct at a point in time.  Also the tenant needs to be clear what must be done to correct the situation.  By the time of the hearing, you can't go back in time and "unring the bell" so to speak if there was confusion or an error in the notice, and put the parties back in time into that voiding period.

But the non-voidable N6, N7 and second N5 notices are EXACTLY like pleadings that a tenant makes in their applications, and EXACTLY like pleadings a party would make to the Small Claims Court.  True, the notices are for termination of the tenancy and not money, but they serve the same purpose as a plaintiff's claim in Small Claims Court, or a T2 at the LTB.  They set out the facts and remedy sought so that the Board and the other party know the case to be met and can prepare to defend the claim.

It serves absolutely no purpose for landlord's pleadings to be carved in stone and not subject to amending as warranted.  Sometimes a hearing takes place many months after the notice is served.  How can it be fair that the landlord is stuck with their original pleadings, and can't add to them?  There is no process for supplementary pleadings or amendment.

In addition to not being amendable, the LTB takes the unusual position that any irregularity or error in a notice renders the notice void and application dead.  Yet a tenant's application can be amended if in error.  I've seen members dismiss a landlord's application because the underlying notice said November 31st as a termination date instead of 30th, or had the wrong apartment number, even though it was served properly, or was off by a penny, or didn't contain the "time" a tenant is alleged to have done something such as start a fire, hit another tenant etc.  If the Board simply allowed landlords to draft and include pleadings as part of their L2 conduct applications, this wouldn't happen, and this twisted mindset about the special nature of non-voidable notices would end.  I've never had a member able to explain why they dismissed an N7 notice because the date said November 31st, 2012, when there are three applicable statutory authorities that say otherwise and there are none that support the Board's position:

Residential Tenancies Act, 2006 - s.212.  Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.

Statutory Powers Procedure Act, 1990 (under which LTB proceedings are controlled) -  s.28.  Substantial compliance with requirements respecting the content of forms, notices or documents under this Act or any rule made under this or any other Act is sufficient.

Legislation Act 2006 (an Act of general application dealing with all statutes) -  s.84.  Deviations from a form whose use is required under an Act do not invalidate the form if, (a) they do not affect the substance and are unlikely to mislead;

It's time for the Ministry to wake up and either allow landlords to plead facts through their applications, or create a process whereby non-voidable notices can be amended and added to.  I would hope that if the Board reads this blog (which I hear they do), that they might meet to discuss their approach to sufficiency of notices in light of three statutory authorities that suggest they are doing it wrong.

3 comments:

Jack Willem said...

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jason peters said...


Tenant for the apartment in London Ontario

with the guarantor

Anonymous said...

This is exactly true..tenants have all the rights to change and ammend but the landlord seemingly doesn't...and that goes for sueing a landlord also...my tenant started out wanting 234.00 and each time I went to LTB,the amount went up till it was 25k's..her lawyer was free,mine wasn't...why isn't something done about this unfair so called legal court...BS