Thursday, 30 January 2014

Where are the English Majors? Interpreting the Residential Tenancies Act

As it happens I had an interesting experience at the Landlord and Tenant Board today.  I was representing a tenant who was accused of "damaging" her rental unit.  The landlord served a form N5 on my client and in that form checked off box number one on the first page as illustrated in a sample form of the N5 in the image below.

The thing about N5 forms (as in the image below), is that they are voidable notices of termination.  This means that when a tenant receives one of these notices from their landlord that they have the right to correct the problem complained of and "void" the termination of the tenancy.  So, for example, if a tenant is accused of substantial interference with reasonable enjoyment (playing stereo too loudly), thereby warranting a termination of the tenancy, the law allows the tenant to correct the behaviour (i.e. not doing it again) and thereby voiding the termination of the tenancy that the service of this N5 form accomplishes.

The voiding procedure is both simple and difficult.  Simple in that you need to stop the behaviour.  Difficult because the timing of the stopping is relevant to whether the N5 form is voided or not.  To void the N5 form, the complained of behaviour (i.e. substantial interference---not just loud stereo) must not occur again within the 7 day period following the service of the notice.  Hence, if following the service of the N5, the tenant does nothing to substantially interfere with the reasonable enjoyment of the premises for 7 days, the N5 is void and the tenancy is preserved.

So, that is the story for substantial interference.  My case today was not for substantial interference but for "damage".  Hence box number one is ticked off (not number 2), and it states:  You, your guest or another occupant of the rental unit has wilfully or negligently damaged the rental unit or the residential complex".   The details of how that is alleged to have happened must be provided in Box B at the bottom of the form (see image).

An N5 for damage, is voidable in the same way as an N5 for substantial interference except that for damage a tenant has 7 days to fix/repair/replace or pay for the damaged property or make satisfactory arrangements with the landlord to repair, replace, or pay for the damage.  That this is the case is set out on the second page of the N5 Notice of Termination which you can see here in the second image in this Article.   I have highlighted the portion of the N5 in yellow that was relevant to my case today.    The N5 that the landlord served on my client had box Number 1 on the first page ticked off, it had some description of damage in  Part B, but on the second page it did not have any sum of money written into the blank portion of the form where it says : paying me $__________, which is the reasonable cost of repairing the damaged property.

Now, to me and my understanding of how an N5 works (being voidable), the failure to include a sum of money in this blank space on the second page of the form has always been a fatal flaw in the drafting of the N5 form.  The argument I have always made (and generally been successful on) is that the failure to provide a sum of money that that tenant could pay to void the N5 deprives the tenant of their lawful right to void the N5--Notice of Termination.  I have always understood that to void an N5 Notice of Termination for damage (where the damaged thing is repairable) the tenant effectively has two choices---the first is to fix it either by themselves or by hiring someone or secondly by paying the landlord the reasonable cost of repairing the damaged property.  If the tenant did either of these things then the Notice of Termination would be void and the tenant's tenancy would continue.

The Divisional Court, in a case called Ball v. Metro Capital, reviewed how voidable Notices of Termination work and how important it is for the Notice of Termination to be clear.  The Court highlights that a Notice of Termination, like an N5, must be clear and provide the tenant with the necessary information that the tenant needs to void the Notice.  If that information is not provided within the Form, then the Notice of Termination would be considered flawed and not a legally valid Notice of Termination.  The effect of a finding that the N5 was not legally valid would be that the Application to Evict the Tenant would be dismissed by the Landlord and Tenant Board.  Hence, the "technicalities" of the N5 are very significant as compliance or non-compliance with the legal requirements informs whether the Adjudicator hearing the case has the jurisdiction (lawful power) to even hear the case.  No matter how outrageous the allegations might be, without jurisdiction the Landlord and Tenant Board is powerless to address the circumstances of the Landlord and Tenant relationship.

So, at the commencement of today's hearing I advised the adjudicator that I had a preliminary matter to address with respect to the Landlord's N5.  I advised that I wished to move the Board to dismiss the application on the grounds that the N5 was void on the grounds set out in Ball v. Metro Capital.  I directed the Adjudicator to look at the second page of the N5 and pointed out that the landlord had not provided a sum of money that the tenant could pay to void the N5.  I submitted that this was fatal and that the Application must be dismissed on this ground alone as nowhere else in the N5 was a sum of money provided.  The argument I made was that the tenant was deprived of her right to void the N5 as the landlord did not advise of a sum of money that would satisfy the reasonable cost of repair.  This was contrary to the law--as set out by the Divisional Court--and hence the application had to be dismissed.

It was then that the Adjudicator hit me with a most unexpected statement and one that I have never before heard made.  The Adjudicator said that the landlord was clearly choosing to have the tenant repair the damage and not pay for it and that there did not have to be a "number" on the second page.  Seeing my rather stunned look, he pointedly asked me whether the Residential Tenancies Act required the landlord to allow the tenant to pay for the cost of a repair.  The question was posed in such a way as to confirm to me that the Adjudicator does not believe that the RTA requires the landlord to provide a sum of money on the second page of the N5.

I responded that I believed the RTA did require the sum of money to be provided but that for the moment, we could leave aside the issue and deal with "problems" in Part B of the same N5 form.  The second prong of my attack on the N5 ultimately was successful and the N5 was deemed not to be legally valid for reasons other than the missing information on page 2 of the form.

The issue for me, however, is not over as I find the adjudicators position astounding and frankly concerning to me as his assertion in the hearing runs contrary to my long standing understanding of how N5's for damage work.  Therefore I immediatley went back to the source (i.e. the legislation) and took a look at what the law says.  And it is in reading the law that I need an English major (or perhaps Ruth Sullivan to respond if she reads this article) to provide the technical (grammar wording) for why the law is as I understand it to be as opposed to the Adjudicator's way of looking at it.

The operative section in the Residential Tenancies Act is section 62.  It provides as follows: 

TERMINATION FOR CAUSE, DAMAGE---(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. 

(2) NOTICE---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 landlrod the reaosnable costs of replacing the damaged property, if it is not reaosnable to repair the damaged property. 

(3) NOTICE VOID IF TENANT COMPLIES---The notice of termination under this section is void if the tenant, within seven days after receiving the notice, complies with the requirement referred to in clause (2)(c) or makes arrangements satisfactory to the landlord to comply with that requirement.


In my reading of this section I do not think that the landlord has the choice to limit the tenant's right to repairing the property.  I think that the plain reading of section  62(2)(c)(i) is to provide the tenant with the choice between repair or paying.  I think that the section reads such that (i) is the entire choice that the landlord must give to the tenant--which includes fixing or paying.  The landlord, I think, is mandated to require the tenant to "fix or pay" with the "fix or pay" being the entire choice that must be put to the tenant.

If the section is to be read in a way that allows the landlord to choose between fixing or paying then it would make more sense, structurally, for the sentence in (2)(c)(i) to be separated into two separate sub-sections with the word "either" being inserted for the landlord's benefit.  Hence, if the Adjudicator's interpretation is to hold sway I think the sections would have to be structured like this:

(2) NOTICE---A notice of ermination under this section shall,

(a)  No change 

(b) No change

(c) require the tenant, within seven days, to either,

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

         (iii) to replace the damaged property, or
         (iv) pay to the landlord the reasonable costs of replacing the damaged property, if it is not reasonable to repair the damaged property.


So my question for the English majors, or the experts in statutory interpretation, is 1) who is right? and 2) how do you explain why my reading reading is correct (presuming of course that you think I'm right).    What I'm looking for are the words to explain the sentence structure that leads to the conclusion I think is correct.  Can anyone take a crack at it?  Or does anyone have another way of looking at this?

I'm fairly certain that I am correct in this and it is always possible that this particular adjudicator was toying with me knowing that the Notice was void on other grounds.  However, I want to be armed and ready with any answer to this position the next time that I am in front of him.

Michael K. E. Thiele
Ottawa Lawyers







4 comments:

  1. Being both a English major (formally) and a landlord and tenant law clerk, I would have to agree with your interpretation of Section 62 of the RTA.

    Grammatically, ‘or’ is considered to indicate an alternative unless it is accompanied by ‘either’ or ‘whether’, in which case the ‘or’ would indicate the preference of the second of the two alternatives given. Section 62 does not include ‘either’ or ‘whether’ therefore, I believe it is giving the tenant the option as to how they wish to proceed with the repairs.

    From a landlord and tenant perspective there are, I believe a few things that would support the position for needing to include the dollar amount for there to be a valid ‘N5’ in relation to damage to property.

    First, if you refer to section 1 of the RTA, the purpose of the act is to provide protection to residential tenants, to me, that really shows the spirit of the RTA. This would seem to imply that especially in the case of a notice that was intentionally made to be voidable by the tenant that the choice and benefit of a choice should clearly rest with the tenant.

    Second, Section 16 talks about minimizing the losses of the party in the case of a breach. Both parties have the ability to minimize the costs by placing the choice to repair, hire someone to repair or pay the landlord for the costs of the necessary repair with the tenant. If the tenant is able to affect the repair themselves, this saves the tenant the cost of labour associated with fixing the damage. Or perhaps the tenant knows someone who can do the work at a fraction of the cost, thus allowing the minimizing of costs. However, some tenants do not have such skills or connections and may simply wish to pay the landlord the cost of having one of their chosen contractors complete the work. In my view, the tenant must be presented with a cost estimate from the landlord to so they may evaluate the most cost effective option for the repairs to be completed, thus ensuring compliance with Section 16.

    Lastly, if you look at the instructions, provided by the landlord and tenant board on completing the N5 notice, it clearly tells landlords to complete the cost section. By failing to do so, you are going against the instructions of the Board for form completion, which one would think, should void a form in the same way that choosing an invalid termination date would.

    Here is the link to the instructions provided by the Board for N5 form completion: http://www.ltb.gov.on.ca/stdprodconsume/groups/csc/_ltb/_forms/documents/resourcelist/stel02_111630.pdf

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    Replies
    1. Thanks Heather, these are some great points, I especially like the last point on the Board instructions. Mike

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  2. Hi Michael:
    (I'm not claiming expertise, but I teach high school English, have taught ESL overseas at the university level, and have a fairly enthusiastic interest in grammar)

    I'll start by concluding that Heather's approach of looking at the instructions and the general intention of the RTA strikes me as the best way to proceed with this. I've been puzzling over this for a little while now, to no great effect. There's some contradiction between Section 62 and the N5, and I really don't think there's a resolution to be achieved with a grammatical analysis, but I'll give you my best explanation anyway, incase you are still interested in the question.

    OR is a coordinating conjunction. It joins two similar things (nouns, verb phrases, clauses) and indicates that the relationship is that of alternatives. OR can be exclusive (A or B, but not both) or it can be inclusive (A or B or both A and B). This function is determined by context. EITHER...OR is a correlative conjunction which is a type of coordinating conjunction. EITHER...OR is only exclusive. In this case, OR is exclusive, so there is no real difference between the two. I agree that either/or feels clearer. I think that's because it emphasizes the exclusivity, not because it offers any actual difference in interpretation.

    A problem that I see is that the RTA appears to be presenting a different situation than the N5 does. In section 62, the landlord is clearly the agent, though the grammatical agent is the Notice of Termination. The landlord, through the NofT, clearly requires the tenant to repair or pay landlord to repair Or to replace or pay landlord to replace. The issue is where the choice lies. I don't see any way to argue your point that the section actually provides the tenant with the choice. The section enumerates choices, clearly, but not who gets to make them.

    The N5 does support your assertion. Infact, it goes quite beyond the scope of the RTA by implying that the tenant can decide if something is repaired of replaced. I have visions of glued together lamps and couches with mismatched pillows, but that's the landlord in me talking. N5 uses "You can" and then a list, which indicates that the ensuing list contains all the choices available to the tenant. So that's great until you encounter your adjudicator who sends you back to the legislation and I think subverts the process intended by the N5 and the instructions for the N5.

    I did double-check with the Chicago Manual of Style regarding lists, and it offers only that items in a list should be constructed of parallel elements, which this list is, in that the main options are repair, replace, or make satisfactory arrangements (which interestingly is not an option given in the RTA). So no help style-wise.

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  3. I agree with your assertion that (i) is the entire choice for the fix option, but how can you argue that the landlord must give that choice to the tenant? There's no way to insist that the parallel structure can be interpreted differently -

    I see the two grammatical options you are exploring as follows:
    Require the tenant to repair or pay landlord to repair. OR
    Require the tenant to repair or Or require the tenant to pay landlord to repair.
    But this is just a difference in where the parallel structure begins, not in meaning. Grammatically, these two sentences are equivalent, though a high-school English teacher might be somewhat pedantic and point out that the second option is unnecessarily repetitive.
    Even if we switch to the correlative, we are no closer:
    Require the tenant either to repair or pay OR
    Either require the tenant to fix or require the tenant to pay.
    I acknowledge that these two sentence feel different, but they are both simply presenting the same choices. Neither brings us any closer to who gets to make the choice.

    If the sense is to clearly be understood to be the tenant's choice, I think a stronger rewording is required, perhaps stipulating it is one one person's discretion or the other's. It would be much, much better to make the tenant the agent (tenant may choose to fix or pay to fix) or clearly stipulate the landlord is choosing (landlord shall

    What I don't know is if there has already been a determination of who gets to decide whether it's a repair or a replacement. If it has already been established somewhere that this determination is the landlord's, then that is your grounds for arguing that both choices are the landlord's, which isn't what you are trying to do, I know.

    Well. Not exactly helpful, I know. But I do feel fairly confident that this battle can't be won through grammar, for what that's worth. Thank you again for your blog. I'm still reading, mostly because it is so interesting.

    Julie

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Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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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.