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
Thursday, 30 January 2014
Where are the English Majors? Interpreting the Residential Tenancies Act
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