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

Monday, 27 January 2014

Pets and Apartments: Are they a good idea in an apartment?

Pets and Apartments: Things to Consider Before Adopting a New Friend
The article below is being "guest blogged" by my assistant Heather C..  Heather, like all good assistants is invaluable.  Several years ago Heather was a student of mine in a Landlord and Tenant law course that I was teaching.  Through that experience and of course her own background, she has developed a keen interest in this area of law and the processes to follow.  Her administrative experience in all things Landlord and Tenant has allowed her the opportunity to guest lecture in my courses and she has recently begun an important position on a board of directors with a non-profit housing provider.  Her experience and insights in landlord and tenant law gives her opinion an interesting perspective that I value.  For topics associated with this blog I have invited Heather to write on issues of general interest and I hope she does so often.  Thank you Heather!  Michael K. E. Thiele

A month after moving in to our current apartment, my husband and I brought home our first pet. His name was Raxacoricofallapatorius (Rax for short) and he was a very cleaver little ferret. Two days in to pet ownership, we realized that having a pet in an apartment can present a unique set of challenges. For example, our apartment was going to sprayed for bedbugs and we needed to have Rax out of the unit for a whole day, Rax loved to play in the kitchen cupboards but they weren’t safe

Mustela putorius furo

and we had to install latches on all the drawers to discourage him from playing (which marked the doors), his litter had a real odour which was very noticeable in the small space so we had to try a few different brands and types of litter all of which we didn’t anticipate before bringing our little furry home. Owning a pet while living in a rented space can be very difficult sometimes, so I thought I would write a blog about some things to consider before deciding if a pet is a good fit for your current and future rental home.

I think the first thing to consider when deciding on a new pet in a rental situation is does your unit allow animals. Now there is a well known section (Section 14) of the Residential Tenancies Act (‘RTA’) which is the main legislation that deals with residential tenancies in Ontario, which states a ‘No Pets Provision’ of a lease is void. This essentially means that if there is a no-pets provision in your lease, it can’t automatically be enforced. So if your unit is covered by the RTA, you should be allowed a pet once you’ve started a tenancy. However, if you’re considering moving or starting a new tenancy a landlord can refuse to rent to you because you own an animal.

So once you’ve figured out that you’re okay to bring home a furry companion, you should consider the right type of pet for your living situation. This has more to do with your lifestyle and the type of unit that you live in. If you want an animal that has a lot of energy, like a dog, consider the amount of space you have for them to run and play, the amount of time that you are going to be able to spend with them, how much noise they can make and how easily that noise can travel to other units, if you’re in a multiplex, how difficult it is going to be to accommodate a bathroom schedule and how difficult potty training may be.  Although section 14 of the RTA states a no-pets policy is void, section 76 provides a list of three criteria a landlord could use to evict a tenant based on the actions of their pet.

The criteria are 1) The pet has substantially interfered with the reasonable enjoyment of the complex 2)  The animal has caused a serious allergic reaction for another resident and or the landlord and 3) The animal is deemed to be inherently dangerous.

The first criteria is very broad, this could be anything from a pet making noise (especially when left alone), damaging the rental unit (for example by chewing carpet, frequent accidents that effect flooring etc.), not pooper scooping or like the case could have been with Rax- the strong odour of his litter box and having to make changes to the fixtures in the unit (the cupboard doors). Thankfully for us, we were able to find a litter that worked well so with regular changing there were no complaints about the smell and we were able to avoid any issues with our landlord. Other issues and behaviours in individual animals are a lot harder to solve and some like your pet causing a neighbor to have a severe allergic reaction, you have absolutely no control over. In some situations, like with serious allergies, you must be prepared to either find a new home for you or your pet if things don’t work out.

Further it’s always a good idea to check with your city’s by-law department about their animal by-laws. By-laws often limit the number of pets per household, prohibit certain animals or breeds (for examples certain snakes and breed specific dogs like pit bulls) and require pet owners usually to register their animals with the city. Checking the by-laws will help you understand the types of pets to avoid and certain breeds that may be consider dangerous without any act having to be committed by the individual animal. Complying with all of your city’s animal by-laws is a must.

Also taking a look at your renter’s insurance policy, to see if there is a provision about coverage for any animal attacks or injury caused by your furry friend would be a good idea. Having a policy in place that provides coverage for any type of injury caused by your pet gives the landlord some confidence that they will not be held responsible for the actions of your animal and may prove to be a good bargaining chip, should an issue ever arise.

Although there no guarantees about a how pet will be behave or how someone may react to an animal, a thoughtful and careful review of your lifestyle and current living arrangements will help to pave the way to a smoother transition when bringing a new pet into your rental home. Do lots of research on the type of animal, breed and temperament of any pet before deciding on one and brining them home. Try your best to think of all the little things that a new pet can get into and come up realistic ideas on how to deal with the issues the might arise when training a new pet, this will go a long way if an issue should arise. Most of all be prepared to love whoever/ whatever you bring home and provide the best possible home for them.

Tuesday, 14 January 2014

Bedbugs and a tenant's victory: Divisional Court decision

Most tenants in Ontario are now aware of the bedbug resurgence in North America.  Its seems that everyone has had a bedbug problem or knows someone who has or knows of a building where bedbugs have been found.  The fact is that the pesticides that were once commonly used to eradicate bedbugs have been banned and now there is a resurgence of the bugs.  The current pesticides are not as effective in ridding apartments and homes of these pests.

The nuisance that is a bedbug infestation aggravates landlords and tenants alike.  Landlords are forced to incur significant expenses in paying for pest control that seems ineffective.  The presence of bedbugs makes tenants unhappy and unfortunately may unfairly attach a stigma to the rental property that it is unclean or not properly maintained.  The effect is that rents in the building go down as the empty apartments become more difficult to rent.

Tenants are very unhappy with bedbug infestations because they suffer in many ways.  They suffer bites and may become ill as a result of those bites.  Further the infestation requires the tenant to spend significant money in laundering everything in the unit presuming the standard treatment method.  With severe infestations the tenant may lose belongings because the bugs get into everything and it becomes impossible to kill the bugs.  The bedbugs may infest books, mattresses, picture frames, appliances--literally everything in an apartment that has a crack, texture, or an "inside".  Given the difficulty in getting rid of the bugs many tenants choose to throw out many of their belongings.  The impact of these bugs is broad.  Fearing spreading bugs or getting bugs, friends and family stop visiting and tenants often stop visiting the homes of their friends and family in fear of carrying these pests with them in clothing, bags, purses, etc..  Whether the extent of the reaction is rational or not the psychological impact of having bedbugs is profound.

Given the major impact of having bedbugs most people are surprised to learn that compensation for a tenant is not automatic when it comes to bedbug infestations.  There is no automatic abatement of rent, compensation for not having "quiet enjoyment", or damages for the suffering and loss of property that goes along with an infestation.  For the most part, if a Landlord responds diligently and in a timely manner upon notice of a bedbug infestation and retains licenced pest control experts and follows the advice of that expert then the usual outcome of a tenant's claim arising from a bedbug infestation is that there is no compensation and the case is dismissed.

The point of this article today though is that a recent decision in Khokhlov v. Metcap Living Management Inc., 2013 ONSC 7566 (CanlII), released by the Divisional Court in December 2013, confirms that tenants may indeed win damages for suffering through bedbug infestations.  The interesting award is in relation to a claim made for the rent differential between the rent that the tenant was paying in the old apartment (infested one) and the rent that she was paying in the new apartment that she moved to because her old landlord was not dealing with the infestation in a prompt manner.  The rent differential, over the course of a year was approximately $4000 and the tenant was awarded this amount by the Landlord and Tenant Board.   The Landlord appealed this award to the Divisional Court and this amount was upheld by the Divisional Court meaning that the Landlord does indeed have to pay the rent differential to the tenant (i.e. pay the difference between her old lower rent and her new higher rent).    The case itself highlights the sections and technical parts of the legislation that form the basis of the Board's jurisdiction for making the award.  

Any tenant who is suffering from a bed bug infestation would be wise to consult this case and apply the rationale of the decision to any claim that they would wish to assert.  All landlords should be aware of the consequences of not dealing with infestations in a timely manner.  The case may be found by searching the name on the Canlii site at  .

Michael K. E. Thiele
Ottawa Lawyer

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