Friday, 4 November 2016

Form N5 technicalities: terminating a tenancy for noise and other anti-social behaviour

THE FORM N5: Technical requirements when a terminating a tenancy for substantial interference with reasonable enjoyment
One of the most complicated processes under the Ontario Residential Tenancies Act is to terminate a tenancy for substantial interference with reasonable enjoyment of the premises by the landlord or another tenant. What I’m talking about is noise, shouting, loud stereo’s, name calling, offensive conduct, anti-social behaviour, dogs barking, pets causing problems (smells), being messy, taking up common area space without authority, and all of the countless things that a tenant or occupant of the unit might do to substantially interfere with the reasonable enjoyment of the premises by other tenants or the landlord.
The Ontario Residential Tenancies Act makes behaviour, like that described above, the basis for terminating and evicting a tenant. If a tenant does the kinds of things described above the landlord (only the landlord and not another tenant), may serve the tenant with a Notice of Termination in Form N5. The "N" stands for "Notice" and the "5" just represents that it is the 5th notice available under the RTA. The N5 form can be filled out or downloaded from the Ontario Landlord and Tenant Board website.
The form N5 is deceiving in its simplicity. When you download the form you will see that it is all of 3 pages long. It provides some boxes to fill in and some boxes and circles to check off. On the second page it provides a little 6 box grid where you are directed to include the details of the allegations. There is not a lot of space in this grid leaving you with the impression that not very much is required to complete this form. The remainder of the form is completed by signing your name and providing contact details. How difficult can that be?
In fact, the Form N5 that you have just reviewed contains pitfalls that will cause your application to be dismissed if you don’t "get it right". In Residential Landlord and Tenant law, "near enough" is not in fact "good enough". While the standard for notices may not be perfection, the standard is not far off from that. Ontario appellate authority makes it clear that Notices of Termination must be correct in order to be valid. If the requirements of the Notice are not met the form is void (even if the error appears "obvious" and what was intended is clear). A notice that is void can not be amended or be fixed by the Board in a hearing. The landlord must simply start again if the notice is void.
With this in mind, it is important to get all of the essential elements of the Form N5 correct otherwise you will be starting the process all over again when the Board refuses the application or the adjudicator finds that the Notice contains a mistake or is lacking information.
This article does not address the entire N5 notice and all of the technical requirements of the N5 and the application process.  Instead, I’m directing my comments to the second page (reproduced here) and the 6 grid box under the heading "Details about the reasons for this Notice".
Firstly, this little box grid is very frustrating to use and given the propensity of the forms not to save the inserted information when you try to save the electronic version I always recommend that the only thing you put in this grid box is "see attached –Schedule A". Start your "Details about the reasons for this Notice" in a separate word processor document. Start with a title about what the document is and then in sequentially numbered paragraphs write out the supporting details.
The key (and point of this article) is to address the legal requirements of the "details" that you intend to provide. It is these legal requirements that mess up and profoundly frustrate a great many landlords. These legal requirements result in the dismissal of numerous applications to the Landlord and Tenant Board based on an N5. You lose the $170 application fee and usually several months of effort because of legal errors in the "details" portion of your notice. The effort is lost because you have to start from scratch–as if all of the work you have done counts for nothing. This is especially frustrating if you have corralled tenant witnesses to take a day off of work to come testify and the hopes are high to finally deal with and evict a problem tenant.
So, what does the Ontario Residential Tenancies Act say about the "details" section of the Notice of Termination (N5)? That is set out in section 64 (2)(b) RTA where the required contents of the N5 is set out. This section directs that the N5 shall "set out the grounds for termination".
Is it possible to be more vague than what this direction requires? I think it would be difficult to give a landlord less guidance. Fortunately, (or unfortunately if you’re not aware of the decision), the Ontario Divisional Court has, in a short but clearly written decision, explained what the "details" must contain in order to make a Form N5 valid.
The decision from the Court is a case called Ball v. Metro Capital. It is a difficult decision to find online so I will reproduce it at the end of this article so that you can read it. Given the importance of the case there is really no excuse not to read the case. This decision of the Court is probably responsible for more dismissals of applications than any other single case that I can think of in the Residential Landlord and Tenant context.
What is the thrust of Ball v. Metro? It is in essence the who, what, where, why, when, and how case. This is the case that defines what section 64(2)(b) means when you are directed to "set out the grounds for termination" in that little 6 grid box on page two of the N5 Form.
To understand what is meant by "who, what, where, why, when, and how", you have to understand how an N5 Notice of Termination works. An N5 is a voidable notice of termination. This means that a tenant, once they receive an N5, have the legal right to void the notice by changing their behaviour or paying for the damage (another ground of termination in the N5). Because the N5 purports to terminate their tenancy and evict them from their home, the Court has held that the tenant’s right to void the N5 is an exceptionally important right. Accordingly, the Court has held that a landlord must provide clear and unequivocal details about the alleged misbehaviour (i.e. who, what, where, why, when, and how) so that a tenant may exercise their right to void the N5.
The details are necessary in order to allow the tenant a full and complete opportunity to know what behaviours to stop or change in exercising their legal right to void the N5 notice. Without details, a tenant can not know what the alleged behaviours are that they must stop to enjoy the right to void the N5 Notice of Termination. If the allegations are vague, or over broad, a tenant is potentially left guessing about the reasons for the Notice of Termination.  Given that the failure to void the N5 may result in eviction, the Court has held that knowing exactly what conduct is being complained about is mandatory aspect of a validly drafted N5.   Accordingly, if you have drafted an N5 that seems vague or leaves a tenant guessing—then it will be a void notice and useless. A void N5 will result in the dismissal of your application to the Ontario Landlord and Tenant Board and you will not be able to get any order against the tenant.
EXAMPLES are always useful in trying to explain these concepts. Below, I will give you three examples of grounds that would be insufficient, vague, and hence result in an N5 containing them to be void. Further below,  I will give you the same three examples except with sufficient information to make the N5 valid and not technically void.  It is to be noted that just because an N5 is technically valid this does not mean that eviction is guaranteed.
IMPROPER DETAILS

1. You are always being loud and annoying to your neighbours and they are complaining to me about noise.
.2 There is a banging sound in your apartment and it is waking your neighbours.
3. Your dog barks too much, makes a mess, and scares the neighbour’s kids.

SAME DETAILS WITH PROPER INFORMATION

1. On or about October 5, 2016, at 11:45 p.m. you were shouting at someone in your unit. The shouting continued for about 30 minutes. You sounded angry and upset. This was concerning to your neighbours and woke your downstairs neighbour up. The shouting continues regularly and was heard on October 6, 11, and 13th, at approximately the same time of the night. This shouting is interfering with the reasonable enjoyment of the premises by your neighbours and it must stop.
2. Between the hours of 7 and 8 a.m., on an almost daily basis (the last reported time was June 2, 2016), your neighbours are complaining about a heavy banging and clanging sound coming from your unit. The floor shakes with this noise. Your neighbours report that it sounds like a heavy weight being set down similar to that on a gym set. The banging/clanging sound stops after about an hour and it is clearly something that you are doing in your unit. This sound is waking your neighbours early in the morning and interfering with their reasonable enjoyment of the rental unit. It must stop.
3. On July 3, 2016, between 8 and 11 p.m., and on July 4, 5, 6, and 7th, roughly between the same hours, your dog was barking almost continuously. Your neighbours knocked on your door on July 3 and 4th and there was no answer. A note was left on your door by your neighbour on July 5 requesting that you do something about your dog barking. The incessant barking is very disturbing to your neighbours. While investigating the barking sound I (the landlord) heard the barking on the 7th at 9:30 p.m. as well. I knocked on your door but you were not home. On July 8, 2016, I was in the building and noticed you coming into the building with your dog. Your dog was not on a leash and it ran up to several people in the hallways jumping on them. While your dog seems friendly and happy to see people I have received complaints that this jumping is scaring some of your neighbours. Further, while investigating the complaints, I noticed that you are not stooping and scooping after your dog in the back yard. There are numerous piles of feces in the yard and I have been told by the superintendent that he has witnessed your dog doing its business, off leash, and you not cleaning up the mess. You are required to prevent your dog from barking incessantly, required to keep your dog on a leash, and to stoop and scoop after your dog in order to void this notice.

If you compare the foregoing (#1 to #1, #2 to #2, etc.), you will see the obvious difference between the them. The details in the second set allow the tenant to know with much greater precision what is being complained about and what needs to be done. The information in the second set of details does not make the tenant guess about what the concerns are and therefore the tenant’s right to void the notice by compliance or stopping the alleged behaviour is preserved for them.
With respect to the examples in the first set, that do not provide much detail, you will hear many landlords argue that the details are unnecessary because the tenant knows what the problems are. This argument of course presumes that the allegations are valid and real and that the tenant is the source of the problem. The details of date and time are important because the noise or other behaviour may be the result of a another occupant in the rental unit or that of a guest or a service provider. The tenant may not know what the other occupant, co-tenant, or service provider is doing and as such the details will allow the tenant to make specific inquiries as to what is going on in their unit at that particular time of day.
Is it possible to "overkill" the details in the sense that you provide too much information? In my view the answer to this is yes. I have seen some landlords react to a dismissal of an N5/L2 application due to a lack of detail by serving a new N5 with dozens of pages of evidence, letters, and photographs attached to the new N5 Notice of Termination with the belief that providing all of this evidence will erase any doubt about what the problem is.
In my view, providing too much information and all of the supporting evidence invites more confusion and misunderstanding. The key, I think, is to find the balance between "material facts" and "evidence". The "material facts" are the who, what, where, why, when, and how of the allegations. The material facts are NOT all of the intricate details of the allegations along with the opinion and judgment of the complainants against the tenant.
An example of going over the top and providing too much detail is as follows—using the example from #1 above imagine the details as follows:

1. You were seen coming home from the bar by your neighbour drunk every night for the last several weeks and specifically on October 5, 6, 11 and 13, around midnight. Attached is a picture of you from the security footage and it is clear that you have been drinking and that you look unhappy and upset. Your neighbours don’t want to see you looking like this and you shouldn’t dress like this at your age. Your neighbour recorded you shouting on her cell phone and it seems you were on the phone yelling at your ex-spouse about his/her failure to pay spousal support. Given what you make you should not be yelling at her/him about these things and especially not so loud that everyone in the neighbourhood can hear about your problems. Your neighbour thinks that you are yelling because you have been unlucky at the bar and are just a lonely person. Shouting does not solve these problems. We received a fax from another tenant complaining about the shouting and it is clear that she thinks you have mental health problems but that this does not excuse your uncivil behaviour. You should see a doctor if you need help or maybe you should get some medication because this needs to stop otherwise you will be evicted.

Hopefully the foregoing "details" clearly demonstrate an inappropriate and unnecessary commentary about the problems in the tenant’s unit. While these details do set out the "problem" you can see that the level of detail is simply inflammatory and they do nothing to allow the tenant to identify the issues and stop the behaviour in order to void the notice. It is not necessary to provide a commentary about the tenant’s life and it is unnecessary and inappropriate to engage the tenant at this level.
A further problem with these details is that they beg the tenant to dispute the assertions of drunkenness, manner of dress, promiscuity, success at the bar, family law problems, and their mental health. These allegations will most certainly inflame the tenant’s passion and it is likely that they will lose sight of the actual point of the Notice of Termination (N5) which is that the shouting is disturbing others and to please stop it. In my view, an N5 that gets too personal and contains too much inflammatory language and information is just as bad as a Notice of Termination that contains too little information. Both are void, in my view, because they deprive or interfere with the tenant’s right to void the N5.
FURTHER IMPORTANCE OF MATERIAL FACTS
Focusing closely on the allegations in the N5 is important for another reason aside from letting the tenant know what needs to be done or stopped to void the N5. The allegations in the N5 set out the scope of the eventual hearing at the Landlord and Tenant Board.
What do I mean by this? If you are drafting an N5 the specific details in the N5 become the allegations that you have to prove at the Hearing in order to secure an eviction Order. Hence, if you look back to section 64 of the RTA you will see that the N5 may be served where the " conduct of the tenant ... is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant ... .
Your details allegations should reflect the section 64 grounds to terminate a tenancy. From a tenant perspective, the details are important in this respect because it lets the tenant know exactly what allegations need to be refuted or denied in order to "beat" the application at the Landlord and Tenant Board. This is an important aspect of the "details" as recognized by the Divisional Court and it complements the requirement at section 183 of the RTA that directs the Board to adopt a procedure that affords all persons affected by the proceeding an adequate opportunity to know the issues and be heard on the matter.
While this is very useful for the tenants, and it is their right to know these details for this purpose, I find that spending time on drafting the material facts with an eye to the section 64 requirements ensures that, as a landlord, you lead evidence that actually has a chance of evicting the tenant. A failure to thoroughly consider the allegation in the context of section 64 and failing to think about how you are going to prove the allegation is likely to end up with vague and unclear evidence that will not be sufficient to evict the tenant (i.e. the adjudicator will not be satisfied that you, as landlord, have met your burden).

If you give careful thought to the specificity of your allegations you will also likely come to realize that your knowledge of the exact nature of the complaints against the tenant may be lacking (especially if you are serving an N5 based on reported misconduct as opposed to misconduct that you have witnessed).  This should lead you to make better inquiries failing which you might be surprised by unhelpful evidence from your complainants at the hearing.  Further, as a bit of a "cheat" to try to capture complaints that are not specifically described in the N5--but which flow from the conduct complained about--you may wish to consider lightly blending in general allegations with the specific allegations (details) so that unexpected evidence from witnesses that are a legitimate ground for eviction can "count" for the purposes of the hearing.  Tenants--you will want to object to any of the generalized "cheats" that only become meaningful with the oral evidence of witnesses--i.e. as a tenant you want to limit the scope of the hearing to the specific allegations only and allow no room for generalized comments being the grounds for termination.
CONCLUSION
The Form N5 and the statutory requirements around the first and second N5 notices and the details are complicated. Having worked with these forms for many years it is readily apparent that how the N5/L2 case unfolds is sometimes confusing to adjudicators, lawyers, tenants, and landlords. To that end, if you find yourself trying to evict a tenant on an N5–and the resistance is fierce–you are likely best served by retaining an experience paralegal or lawyer to fight the application for you. Likewise, if you are tenant reading this blog you should take away from this that there are a number of serious and significant legal defences available to you. However, these technical and legal defences can be lost if you do not exercise your legal rights–hence a tenant who wants to fight an N5/L2 application is also best served by hiring experienced counsel or a licenced paralegal.


As promised, below is the case of Ball v. Metro Capital.  This is a must read for any landlord and tenant in Ontario.




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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.