MAKING IT EASIER TO EVICT TENANTS with sloppy and error filled eviction notices (section 212(2) Residential Tenancies Act)
Residential Tenancies law in Ontario was carved out of the Ontario Landlord and Tenant Act in the 1970's. The section pertaining to residential tenancies was created to balance what was a tremendous power imbalance in the law related to residential rental properties. Up to that time (1970's), there was little difference between commercial tenancies and residential tenancies.
A hallmark of every version of the residential tenancies law and the various amendments along the way was that terminating a tenancy was a unilateral act imposed on tenants and that given the public policy value in security of tenure (i.e. stable housing), this unilateral act needed to be done in strict accordance with the law. In practice, this meant that landlords needed to prepare and serve notices of termination that were essentially "perfect". If a particular notice required that a tenant be given 14 days notice of termination then that notice was void if the tenant received anything less than 14 days notice. Similarly, if a Notice of Termination required any other period of notice a failure to strictly comply would be fatal to the termination notice.
Notices of Termination have strict content requirements. Section 43 of the Residential Tenancies Act states that the notice shall identify the rental unit for which the notice is given, state the date on which the tenancy is to terminate, be signed by the person giving the notice, and that it set out the reasons and details respecting the termination. That same notice should inform the tenant of statutory rights to remain in the unit and to require the landlord to obtain an Order from the LTB and to inform the tenant that the tenant has the right to dispute the application.
The strict requirements pertaining to Notices of Termination have been reiterated, affirmed, and made stronger through numerous appellate decisions over the years. The most famous case, perhaps, is Ball v. Metro Capital. That case spoke to the content of N5 Notices and what a landlord needed to write in the details to ensure that the notice would be valid. The Court held that procedural fairness, natural justice, and a tenant's fundamental right to know the case to be met was at issue in the details and contents of the termination notice. If the details were insufficient, vague, or unclear, the Notice was void and the unilateral imposition of eviction by a landlord by intending to remove a tenant from their home via an Application to the Landlord and Tenant Board was summarily dismissed.
The strictness of Termination Notice requirements was a reliable bright line that brought predictability to the LTB hearing processes. The strictness was sometimes harsh in its application but given the aim to make a tenant homeless through the service of a Notice of Termination it did not seem unreasonable to require a landlord to fill out a form correctly.
Shockingly, filling out a Termination of Tenancy form correctly, filling it in without errors, seems to be too demanding a task. The Residential Tenancies Act has been amended to forgive errors, sloppiness and obviate the need for accuracy. The new section is s. 212(2) under the Substantial Compliance provision of the RTA. It says this:
When Error Still Constitutes Substantial Compliance
(2) For greater certainty, an error in the contents of a form, notice or document still constitutes substantial compliance with this Act, as long as the error does not significantly prejudice a party's ability to participate in a proceeding under this Act.
You will need to read this a few times and let it sink in. What this actually means and what the entire Substantial Compliance provision ever meant has not been particularly obvious. The first subsection simply states: (1) Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.
We will see how the new subsection is to be interpreted. My early experience with this new section at the LTB already has adjudicators questioning whether the errors that once mattered really matter at all. On the plain wording of the section, it is a little difficult to see how any error in any form could ever actually prejudice a party's ability to participate in a proceeding. If the tenant is there (at the hearing), no Order has been issued, and the tenant can lead evidence, then how can any error in a notice affect their ability to participate in the hearing! The very worst thing that might happen is an adjournment (right?). Imagine this. The termination date to evict for nonpayment of rent is incorrect. The landlord should have given the tenant 14 days in the N4 Form. However, he only gave 10 days notice (normally a fatal error)--but hey, you know what the landlord meant to do--so no harm, no foul. You can see/hear the argument and adjudicator's rationale that "we" will just read the Termination Notice as if it contained the correct termination date. The tenant can defend what should have been written and not what was actually written---fair?
This new section intends or purports to excuse inaccuracy and inattentive drafting. It will now force tenants to move out and not attempt to stand on their rights as the accuracy of the Termination Notice no longer means anything (any error is excusable!). I find this amendment shocking and a terrible development in Landlord and Tenant law. This was not a necessary amendment and it will do much to set back and make cases all the more complicated and bog down the LTB even more. Now we will have to have hearings and decisions respecting the issue of whether a tenant's ability to participate in a proceeding was affected by an error. Is a tenant allowed to rely on the other sections of the RTA that stipulate mandatory requirements or are these just over-ridden by this general proposition? Do the mandatory sections give way to a general saving provision? Does "shall" mean "may"?
There was a time when errors in Notices of Termination were quickly figured out, a new Notice issued and served and a proceeding was re-commenced. It was done in a timely way. That was when the LTB resolved cases in a timely way. There are some practitioners around who still remember an LTB that could issue an application (on the spot), provide choices of hearing dates (on the spot) and schedule that hearing within a 30 day window of time and then render a decision within a few days of the hearing. Saying that, these days, sounds like a fairy tale--but it was real and the NORM! There are even a very few sitting LTB adjudicators who remember those days. In those days, substantial compliance, forgiving all errors was a laughable notion. Not only was it laughable but it was unnecessary. A fatal error could be corrected relatively quickly (by re-issuing a proper notice) and you could be back before the Board with a proper notice in a very short period of time. This new section smacks of a mechanism to excuse the LTB's inability to hold hearings in a timely way--the LTB is excusing Landlord errors to cover up their own inability to hold hearings in a reasonable period of time. Shameful really.
Michael Thiele
www.ottawalawyers.com
