Being Mislead by the Virtual Hearing Process

HOW YOU CAN BE MISLED by the LTB's ZOOM hearing process?

It is no secret that I am most definitely not a fan of the Zoom hearing process used by the Ontario Landlord and Tenant Board.  For anyone who has done both in person and Zoom Hearings the qualitative difference in the Justice achieved is palpable.  A virtual hearing simply can not deliver the same "data" that a ZOOM hearing delivers.  I know, it's "odd" to call it data but in a sense that's really what it boils down to.  What the adjudicator hears, sees, senses, observes--directly and indirectly--of the parties, of the witnesses, of the representatives--in the virtual forum is a poor substitute for the data obtained live and in person.   The fact is "stuff happens" in virtual contexts that couldn't or wouldn't happen in person or would not be tolerated if the parties were a few feet in front of an actual live adjudicator.  People--especially older folks and less educated folks--communicate better face to face than face to screen.

There are countless examples of the "stuff" that "happens" on the virtual platform but it's rare to see it and watch it escape review.  In this article we will see how the process of a virtual hearing denied a fundamental principle of Natural Justice. That being the right to be heard.   How, you may ask, is the denial of a right to be heard not reflected in a record (transcript) of a proceeding?  How could an adjudicator deny such a fundamental right---innocently and unintentionally?  How can a person with a right to be heard--mistakenly agree not to be heard?  Seems almost impossible, but in the world of virtual hearings it is possible and the Endorsement cited below is an example of this happening.   

I am going to review a recent Divisional Court Appeal decision (below), and describe what I think happened--and why it is wrong.  What happened in this case happens quite regularly and you'll see it if you spend enough time in LTB ZOOM hearing rooms waiting, waiting, waiting.

The case I am reviewing, is the case of Da Silva v. Kutterer, 2026 ONSC 5015 (CanLII).  The case is resolved by Endorsement and the Landlords' appeal is dismissed by the Honourable Justice.

There isn't a lot of detail in the Endorsement and at no point will I suggest that the underlying LTB decision was correct or incorrect--frankly, there is insufficient information to offer such an opinion.  

It appears that this was a case about a Landlord having served an N12 for Landlord's Own Use.  An N12 is a 60 day no fault termination notice requiring a tenant(s) to move out so that the landlord (or whoever is indicated on the form) may move in.   The recounted facts suggest that the tenant(s) alleges that the Landlord(s) never moved into the rental unit after they moved out pursuant to the N12.  Instead, the landlords took advantage of the vacant unit, fixed it up, and then sold the property.  That a landlord(s) would do this (whether or not Da Silva) did) is a notorious problem with N12's.

If a landlord serves an N12 in bad faith (by evicting, not moving in, and selling the property), tenants may file a T5 Application to the Ontario Landlord and Tenant Board seeking compensation from the landlord for a bad faith eviction [anyone reading should note that there are several different actions that constitute bad faith--not just failing to move in and selling].   In this case, the tenants filed a T5 Application alleging just what was said above--that the landlord evicted them, renovated, never moved in, and sold the property.   On these bare facts (if accepted), this is indeed a bad faith eviction.

The tenant(s) were successful in their LTB application and won some compensation.   The LTB heard only from Mark Da Silva--for the landlord only.   Present with Mark Da Silva, at the LTB hearing was his co-owner and SPOUSE, Tamara Milanovic Da Silva.  She did NOT testify.  This fact is extraordinarily odd--so odd as to be absurd--but clearly this is what happened.

Is there an explanation as to why?  Yes, I will suggest the reason why is "ZOOM" and the mischief the process creates.

As you read through the Divisional Court Endorsement you can see that the Landlords were unhappy with the decision and sought to appeal the LTB adjudicator's decision against them.   Feeling wronged, the appeal makes sense (though perhaps an application for Judicial Review would have been more useful).   As part of the Appeal, the appellant landlords were alleging a denial of natural justice--i.e. procedural fairness--asserting that the LTB adjudicator denied Mr. Da Silva's spouse from testifying.

If "true" this is indeed a very big deal and reasonably a serious legal error warranting a re-hearing of the case.  While the LTB adjudicator heard from Mr. Da Silva--she determined him to not be credible.  Perhaps, if the adjudicator had heard from Tamara Milanovic-Da Silva, she would have heard corroborating evidence (boosting his credibility) or perhaps would have heard other evidence that would have been compelling and established that the Da Silva's did in fact occupy the premises for at least a period of time.

That the ability to testify is Central to the defense against the T5 application requires you to understand that there are indeed legal excuses that allow a landlord to serve an N12, evict, renovate, not move in, sell the property, and NOT be liable for a bad faith eviction.   The reasons for why things were done or not done after evicting tenants on an N12 are critical to determining whether a landlord is liable to a tenant.   For a T5 to be successful, tenants must prove much more than simply: N12, eviction, renovation, Landlord not moving in within a reasonable time, to win.   The tenants must establish bad faith--for which there is sometimes a rebuttable presumption and sometimes no presumption (against the landlord) at all.  Absent a rebuttable presumption the tenant's burden of proof--i.e. the difficulty of proving the case--is somewhat increased.   That said, we note that the presumption is "rebuttable"--meaning there are legal excuses for not doing what the N12 required a landlord to do.

Rebutting the presumption (of bad faith), falls to the landlord in a T5 application [the landlord has the burden as the tenant has the required element of proof by presumption].  However, even where there is no presumption of bad faith, it is still a very good idea for a respondent landlord to prove good faith as opposed to simply relying on the burden of proof to argue that the tenant did not prove with clear, cogent, and convincing evidence that the N12 was delivered in bad faith.  Landlords should aim to do more than just rely on the balance of probabilities test to claim victory if the evidence against them seems weak.

In this case, and at the Divisional Court, the landlords (appellants) were asserting that the LTB refused to allow Mr. Da Silva's wife to testify thereby denying her natural justice/procedural fairness rights.   The Honourable Justice Schreck, as is rather logical to do, turned to the transcript of the LTB proceeding to determine whether there was any merit to the appellants' assertion that Mrs. Milanovic-Da Silva was denied the opportunity to testify.

At paragraph 6 of the Endorsement, Justice Schreck sets out portions of the transcript of the LTB hearing.  Given the opening line ("Okay. And who do I have for the landlord?"), we know that this is the start of the LTB hearing.  If you are familiar with the virtual hearing structure (ZOOM platform), the Adjudicator will have been in a break out room (usually called the hearing room) and the main room (the one you are in when you sign into a ZOOM proceeding) will have been staffed with a moderator.  The adjudicator, the vast majority of the time, has no specific knowledge of what moderators are telling folks who are signing in to an LTB hearing.

So, what do moderators do?  They have lots of tasks.  These include: taking attendance, determining what each person in the square on the screen is there for, determining the role of each person who signs in, ensuring that the person in the screen square is present in the room, naming the persons (the screen name) with the LTB descriptors/letters, determine who is a party, witness, public observer, representative, determine who is looking to meet with duty counsel, maintaining lists and shepherding parties to a DRO (Dispute Resolution Officer), moving parties into different rooms, keeping track of parties joined by telephone, maintaining notes on internal dockets used by the adjudicator, prioritizing the list and moving parties as per the adjudicator's instructions, and otherwise answering questions from folks who sign on.  AND ALL OF THIS HAPPENS without a Zoom recording of it happening (i.e. you can't go back and listen to this).

You can imagine--a moderator's job can be busy.  The job gets more difficult with unruly folks who are angry, confused, mentally ill, frightened.  ZOOM only works if one person at a time speaks.  Imagine being a moderator having to speak with every person for every case for an entire docket where all the people are signing into ZOOM at the exact same time.  That is the reality of the LTB system.

BACK TO THE DA SILVA's

What is clear (from the transcript excerpt) to anyone who frequently attends LTB hearings, is that the moderator when signing in Mr. Da Silva asked him who the person was beside him on the screen (it was his wife).  Mr. Da Silva will have answered that the woman beside him was also a landlord--you can imply this from the transcript.

That answer should have resulted in Mrs Milanovic Da Silva being named a "landlord"--- a second landlord alongside Mr. Da Silva.  This "naming" is for the purposes of ZOOM screen naming and organizing and the attendance docket (not actually anything legal vis a vis the proceeding).  What a moderator writes down or marks on a screen is not legally determinative of anything--but the influence of it is staggering on the minds of self represented parties who are trying to cooperate through their nervousness and anxiety.

In this case, the moderator did not accept Mr. Da Silva's explanation that Mrs. Milanovic was a landlord.  What very likely happened is that the moderator had the title of the case in front of him on the screen.  The title of the case (where parties are listed as "landlords" or "tenants") did not include Mrs. Milanovic's name.   Because it was a T5 application, the tenant was the original creator of the document.  The tenant, by error or simply not thinking, left Mrs Milanovic out of the title and included only one landlord.  As a result of how the LTB filing system works, Mrs Milanovic's name did not show up on the moderator's docket as a named "landlord".  It doesn't mean she isn't an actual landlord with rights---it just means she wasn't named.

The moderator, being told that Mrs. Milanovic is a landlord, looks at the names on the application and not seeing her name on the Application refuses that description as offered by Mr. Da Silva.  I can hear it in my head as the moderator says Mrs. Milanovic isn't a landlord because she isn't named as a landlord.  I can "hear it" because I have heard it many times during sign in waiting my turn in these rooms.  Unfortunately, the moderator's conclusion in this case is an incorrect legal conclusion.

We need to remember the scope of the moderator's duties and that the moderator is under a time pressure for signing everyone into the room and fulfilling all of their tasks.  This is not a nuanced and relaxed pace--it is not a discussion between moderator and attendee.  The moderator (working against the clock) needs a descriptor/category for Mrs. Milanovic and "landlord" isn't acceptable because she isn't listed as a landlord in the case name.  The moderator pushes back and asks Mr. Da Silva--is Mrs Milanovic going to be a witness?  Mr. Da Silva likes the sound of this and likely says "yes" [not knowing that "yes" has implications that he is unaware of].   As he says "yes" the moderator automatically states that Mrs. Milanovic will not be able to be in the hearing room with him and that she can only enter when she is called to testify.  It's not a discussion.  The moderator will have told Mr. Da Silva that he will represent himself--without the assistance of his wife as she would be a witness--and can't be in the hearing room. [yes, this is a common and legal practice]. The effect of exclusion is that Mrs Milanovic will not be able to hear any of the evidence, do any cross examination, help Mr. Da Silva present evidence, sort paperwork, think of questions, or participate in the case in any way while waiting for her turn to testify.

Being told what being a "witness" means--- Mr. Da Silva was/is stunned (anxious, upset, etc.) as he and his wife (as is normal and common), had a joint plan to defend this case together--and work together to tell the adjudicator what really happened.  Being stripped of the support of his wife and his co-landlord he panicked.  Perhaps the better of the two of them to testify would have been his wife and not him--maybe he was planning to help her give the evidence not actually lead the defence against the application.  Being told she would be excluded because she is a witness---Mr. Da Silva likely objected saying something along the lines of needing her support to help him with the case--or perhaps that she was the more important of the two of them to present the case.

Remember, this is a moderator under time pressure.  Hearing the word "support" is a magic catch all word for moderators.   If there is someone on the screen before them that doesn't fit into the category of landlord, tenant, witness, lawyer, paralegal, and the person isn't a casual observer---the remaining best catch-all is "support person".   Every party is entitled to have a support person along to make the party feel more comfortable--and sit beside them and help them through the hearing.   The moderator would have told Mr. Da Silva that Mrs. Milanovic, as a support person could be with him but that she could not testify or say anything in the hearing.

I am certain that this is what happened---because this conversation is one that you can watch happen every day at the LTB.  While I may be speculating above (my vivid imagination)---I've seen this show--many many times.

Mr Da Silva--being denied his wife as "landlord", having to remove her to a separate room as a "witness" will have heard the option of a "support person" as the most beneficial category for them.   Having gone through this categorization exercise with an impatient or time pressed moderator---who is explaining very little or explaining without meaning--Mr. Da Silva feels like he survived a battle after being made to feel like he was somehow at fault or dumb.   Again, I speculate---but you can watch this exact scenarios play out in the LTB ZOOM rooms every day. 

HOW CAN I BE SO CERTAIN--any corroboration?

That the foregoing interaction with the moderator happened (though there is no recording) sounds like speculation---right?  It does, except that at paragraph 6 of the transcript you read this:

ADJUDICATOR:     Okay. And who do I have for the landlord?

MR. DA SILVA:        You have Mark Da Silva. And ... my wife, Tamara, Tamara Milanovic.  But she's,                                    she'll be silent, I guess is the requirement.

Ask yourself, why does Mr. Da Silva say the above?  The only reasonable explanation is that this is what the moderator told him was necessary for his wife being beside him.

SEE HOW THE MODERATOR categorization impacts the hearing.

The transcript continues and now Mr. Da Silva has been moved into a break out room (i.e. the hearing room), away from the moderator.

ADJUDICATOR:    Okay. So it .... So, she's not named in the application. [meaning Mrs. Milanovic is not obviously a landlord from the face of the document filled out by a tenant who wouldn't know any better]

MR. DA SILVA:        That's correct. [likely panicking that the adjudicator is going to remove her--as the moderator had threatened]

ADJUDICATOR:     Hmm. [a big pregnant "hmm" that a lawyer or paralegal will infer the adjudicator contemplating whether the wife could be a landlord--because we know she could be]

MR. DA SILVA:        But just for awareness. [interpreting the "hmm" as threatening her removal and trying keep her beside him]

ADJUDICATOR:     Okay. So, what's her role here today?

MS. MILANOVIC DA SILVA:        Support.  [wife jumps in--needs to be there with husband--she too heard what the moderator said]

MR DA SILVA:        Support.

    

The transcript, in my view is telling.  Mr. Da Silva says "But she's, she'll be silent, I guess is the requirement".   Where can he possibly have got that idea?  No person attending an LTB hearing would have this notion in their head.  It came from somewhere---and the "somewhere" is the moderator.   My certainty comes from having listened to countless moderators tell parties (like the Da Silva's) what their legal status is for the purpose of the hearing.  Parties, like the Da Silva's, accept the moderator's characterization as a legal ruling--a determination--and therefore feel bound to it.  

How do we know that the Da Silva's took the position that they were both landlords?  At paragraph 5 of the endorsement there is an acknowledgement that the eviction notice (N12) had them both listed as landlords.

The Honourable Justice Schreck seems, within the Endorsement, to be unaware of all the things that happen, which are unrecorded, in front of the LTB moderator.  I wonder if Justice Schreck would have made the same findings; example: "At no time during the hearing did the appellants express ... nor did they indicate that she wished to give evidence or participate in the hearing." [paragraph 7 Endorsement], if Justice Schreck knew that the moderator at the commencement of the hearing block told Mr Da Silva and Mrs. Milanovic that she would not be allowed to give evidence.

Further, Justice Schreck finds "these arguments were not made before the adjudicator..." [para 11], and fair enough they were not made by Mr. Da Silva (presuming the transcript bears that out).   But having seen self represented parties at the LTB many times their "arguments" tend to manifest not through "argument" but by leading facts--i.e. telling the story--such that the thrust of their story makes the argument.  Had Mrs. Milanovic testified (or been permitted to speak), would she have testified about the obtaining of the insurance policy, the owner occupied nature of the policy, the move in date, the move out date, who she spoke with etc. etc., that would have made the insurance policy more compelling as evidence of occupation?   Of course, it is impossible to know. And maybe, her testimony would not have made any difference at all.  But maybe we would have found out that as between her and Mr. Da Silva that she is the actual "doer" in the relationship and that her husband does other work while she handles these kinds of details.  If that was the case--who was best to testify?  Was Mr. Da Silva thrust into the lime light as the "landlord" by the unilateral act of the tenant filling out the T5 Form inaccurately?

CONCLUSION

I intend this article to be about the frailty of the virtual hearing system.  I am pointing out how the manner of proceeding virtually can deny justice to parties.  This case, this Endorsement, I find illustrative of the kinds of problems that virtual hearings present----and there are a great many unjust aspects of virtual hearings that are swept under the proverbial rug.  Here, the conduct of a party was shaped by the LTB moderator under a perceived legal authority that was unrecorded and unreviewable.  The Adjudicator did not know of this---though there is a hint ["Hmmm" Para 6]--but the moderator caused an actual Landlord to not speak up for themselves.   The Court, in its review function, is denied an ability for fulsome appellate review as there are no transcripts of what happens when you step into the virtual hearing room.  Some random LTB employee starts asserting or defining an attendee's "legal rights" under some apparent authority of which no layperson would know is unofficial and not actually adjudicative. 

A lesson to be drawn from this?  Lawyers and paralegals already know to take, with a grain of salt, what a moderator directs.   The public though, self represented landlords and tenants, you all need to know that the Rules of the Hearing are administered by the Adjudicator--no one else.  Moderators are authoritative--they impose Order (it is their job) and in many respects they are often correct in their function.  But not always.   Therefore, if you have a point to make--you need to be assertive (polite and not argumentative--yes, the balance is hard) and raise important points with the only authority that actually matters in the hearing block---the Adjudicator.

If only Ms Milanovic had said to the adjudicator--"The moderator told me I can not testify--is this true?"--the presentation of the entire case would have gone differently.  If she had asked that question the adjudicator would have done the inquiry to determine her status as landlord, witness, or support.  There is no question that she would have been allowed to testify--or that a process other than "sit quietly" would have been adopted.  Perhaps the landlords would still have lost and appealed--BUT, the transcript that Justice Schreck relied on (because that is literally what you do) would have shown the desire to testify, give evidence and exercise the rights afforded by procedural fairness and natural justice.

Michael Thiele

September 2026   

 

Landlord's Own Use: Is compensation to the tenant history (i.e Cancelled)?

 Ending the obligation to pay compensation to tenants for landlord's own use

Residential Landlord and Tenant law sure does evoke a lot of passion.  One of the major passion evoking issues is a landlord's obligation to pay compensation to a tenant equal to one month's rent when evicting a tenant for landlord's own use.  On the tenant side, the compensation is not a celebrated benefit as it comes at a time when a tenant is learning that they have to move out with a stipulated termination date of about 60 days hence.  Compensation equal to a month's rent is hardly worth a celebration with the stress that comes in having to move.

On the other hand, my experience has been that Landlord's get rather indignant, upset, exercised, when told that they need to pay their tenant compensation.  This requirement is often interpreted as "paying the tenant to live in the rental unit"--which is effectively opposite to the purpose of making housing available to tenants.  Layer on to this the fact that "landlord's own use" is typically used by mom and pop landlord (i.e. Capreit isn't moving in) the impact of the compensation requirement can be quite significant relative to the expenses and business operation of the small time landlord.

So, it is with interest that we can see that the Ontario government, in Bill 60, has for all intents and purposes, eliminated the compensation requirement.   There is a trick to this as it is not immediately obvious but I will explain. It will soon become screamingly obvious that there is only one way to proceed with landlord's own use notices and applications and that the correct approach will result in the de facto elimination of the compensation requirement.

At this time, Bill 60 is not yet law vis a vis the provisions related to the Residential Tenancies Act.  We await proclamation of the amendments to section 48.1 (the text of which is known) by the Lieutenant Governor in Council on a coming in to force date.  When that happens, I expect that the era of compensation for landlord's own use will effectively end.

Section 48.1 RTA is the section that imposes the requirement to pay a tenant compensation equal to one month's rent if a landlord intends to terminate the tenancy and move into the rental unit

To be very clear, Bill 60 does NOT remove a compensation requirement if a landlord is foolish enough to serve a Notice of Termination with less than 120 days notice.  However, if a landlord provides a tenant with a lawful notice, that contains at least 120 days of notice of termination for landlord's own use, then the compensation requirement is eliminated.   Here below (in italics) is the wording that will become the law--with a highlight on the notice period.

Same

(2)  The requirement to compensate a tenant or to offer the tenant another rental unit under 

subsection (1) does not apply if a landlord gives notice to a tenant under section 48 that meets 

the following criteria:

1.  The notice is given on or after the day subsection 2 (2) of Schedule 12 to the Fighting Delays, 

Building Faster Act, 2025 comes into force.

2.  The date for termination specified in the notice is at least 120 days after the notice is 

given.

3.  The date for termination specified in the notice is the day a period of the tenancy ends or, 

where the tenancy is for a fixed term, the end of the term.

WHY DO I SUGGEST THAT COMPENSATION IS ELIMINATED?

While the Residential Tenancies Act will continue to trap unsuspecting landlord's into a compensation requirement we can hope that the revised N12 Form (or perhaps a new form number) will make it clear to landlords that the compensation obligation can be avoided with 120 days notice to the end of term.

I argue, or will argue, that the ability to eliminate compensation by giving 120 days notice versus 60 days notice will in fact establish 120 days as the de facto notice period for landlord's own use.  I am certain that every lawyer and paralegal--and presumably every AI out there will soon tell Ontario Landlords to provide a minimum of 120 days notice.

Here is why I am so certain.  The old time period of 60 days and the new period of 120 days, will still allow tenants to "not move out" (because that is what the notes on the form say).  A tenant refusing to move out by the termination date on the form will be entitled to a hearing before the Ontario Landlord and Tenant Board if the landlord insists on terminating the tenancy and moving in.  As it is with the current 60 day Notices, there is no indication that a landlord who gives a 120 day notice will not also be entitled to immediately apply to the LTB for an eviction Order.    If it stays this way for 120 day notices then anyone who has ever done a case at the Ontario Landlord and Tenant Board will tell landlords to serve 120 day notices and forget that the 60 day option exists.  There will be zero advantage in serving the shorter notice (less than 120 day notice) for reasons explained below.

In short, the reason is the Landlord and Tenant Board's inherent inefficiency.  In practical terms (i.e. reality), the Landlord and Tenant Board is incapable on a consistent basis to receive an application and schedule a hearing within 60 days of the Notice of Termination being served--meaning there is zero chance of the landlord getting the unit back by Order within that time.  To be fair, there was indeed a time-- long, long ago, when hearings were scheduled immediately upon filing an application and heard within 20 days of filing.  In fact, lawyers and paralegals as long in the tooth as I am will remember being offered multiple dates and start times to choose from during the course of filing the Application at the LTB counter!  This kind of efficiency seems so unlikely now that my stating that this was once possible is characterized as a fairy tale or old man fable about walking 15 miles up hill in 4 foot snow banks to school in shorts.    Honestly, the LTB was once a marvel of efficiency.

Anyway, for many years now it has been the case that the LTB is incapable of scheduling an N12 hearing within 60 days of the Application being filed.  The reality is that hearings are regularly scheduled well beyond the 120 days that the new notice period contemplates.  While there is a chance--albeit a small one--that a hearing could be scheduled before the 120 day termination date the fact is that scheduling is indeed quite different from hearing, deciding, and receiving an order within that time.

 A hearing, once scheduled, still has a good chance of being adjourned at least once or for other reasons being delayed and rescheduled. Reasons include a tenant getting legal representation or that the hearing block runs out of time or for French language rights being exercised, or for negotiations, etc. etc. etc..  Procedural fairness, natural justice, and the ability to know the case and be heard (as required by the RTA) are factors impacting the commencement of hearings.

Other possibilities include a default order resulting in a Request to Review--inability to participate, or other arguments that may also support  a Review that leads to a stay and a new hearing being held. There are Appeal rights which may lead to an automatic stay of enforcement of an eviction Order.   

Let us also not forget that once a merits hearing is held that the adjudicator who heard the case still needs to make a decision.  Decision writing is a daunting task for many adjudicators who sit, sit, sit, hear, hear, and hear cases.  Their work loads are heavy and writing time is inadequate.  Anecdotally, I hear and understand from a few sitting adjudicators that there is very little LTB support or adequate time for adjudicators to write decisions.  Getting decisions after hearings can take 30-60 days (nothing is considered late until at least 60 days after a hearing).  There are many instances where the 60 day timeline is well passed.   That this is likely an issue is probably reflected in the Motion that parties can file to transfer a file to a different adjudicator.  A strange motion to exist at all, but take a look--it is an available motion to be brought on the LTB website and its availability reveals the existence of a problem at the LTB.

GIVING 120 DAYS will result in tenants delaying

 In my experience tenants will leave early the second they have a place to go that is acceptable to them.  They will not hang on to a rental unit that they know they will need to vacate just to annoy the landlord.  Once they have a new home to move to, the tenants are going.  They will give early notice of termination (leave before the 60 days or 120 days of notice given) as they will want to stop their rent obligation in the unit they are vacating.  Until they terminate early their obligation to pay rent in the old place continues and no one likes to pay rent in two places.  

So, a lot turns on a tenant being able to find suitable alternate accommodations.  If they can find a good place shortly after getting the Notice they will give notice and leave.  They will do so because they will be worried that a good new place will not be available when they are forced to vacate.  If there is no good alternative, well then the tenant is not vacating at 60 days, 120 days, or any period until the LTB makes an Order.  A tenant living in a rental unit will not vacate to the street in order to accomodate a landlord.

In my view, a 120 day notice is just as good as a 60 day notice for speedily getting a rental unit back.  The vast majority of tenants will move when they can.  The difference between 60 days and 120 days is not enough to cause tenants to deal with moving "later".

AND THEN THERE IS DISCRETION

 It is a pet peeve of mine that too many lawyers, paralegals, and even Judges, will view the 60 day notice period or 120 day notice period as imposing an obligation on the tenant to vacate by that date.  Too many folks regard the enforcement of the termination notice via an application to the LTB as a legal action to punish a tenant's malfeasance.  There is this entirely wrong sense--but commonly held view--that a tenant has a duty to vacate upon receiving a Notice of Termination and that failure to do so is a breach of the law by a tenant.  Nothing could be further from the truth.

The fact is that a termination for landlord's own use is a unilateral action by the landlord.  The right to terminate, on this ground, has significant legal constraints.  Security of tenure is still the underlying public policy of the Residential Tenancies Act.  In fact, if a landlord tries to use this termination right improperly a tenant has a right to significant financial compensation for a bad faith eviction.   Further, a tenant is entitled, under the law, to test a landlord's "good faith" before an impartial decision maker (i.e. the LTB) before vacating the premises.

If a tenant wants to be sure or thinks that a landlord is gaming the system by using a Landlord's Own Use termination notice then they are encouraged and permitted to require a landlord to file an LTB application so that the landlord establishes on a balance of probabilities that the Notice of Termination has been served in good faith and that the underlying legal requirements are met.   By the reality of the system, this means that the 60 day notice period (or even the 120 day notice period), is certain to come and go well before a decision is made.

This brings us to the reality of merits hearings.  Suppose a tenant insists on a hearing and a landlord eventually obliges by filing an Application.  A hearing is scheduled and both parties attend the hearing--lets say on day 50 (however unlikely this is) after the service of the Notice of Termination.  At the hearing the adjudicator is satisfied that the landlord does require the rental unit and all is proper.  Will the adjudicator terminate the tenancy in 10 days time to coincide with the termination date?

My experience is, and a review of a great many LTB decisions establishes that the vast majority of adjudicators will exercise their discretion to delay enforcement of an eviction decision.  That delay is often months and months and in reviewing cases I see regular delays of 60 days before an Order can be enforced (this is from the date of the Order not from the date of the Notice being served).  Rightly or wrongly depending on one's view, the fact is that the LTB does delay eviction enforcement after merits hearings even when the landlord wins the case.

CONCLUSION

In my opinion it makes no sense to give a tenant a 60 day Notice of Termination with compensation payable versus a 120 day notice without compensation payable.   A tenant who is able to move within 60 days will likely do so even when provided with a longer notice.  A tenant who is unable to move within 60 days or even 120 days is not going to move out and will remain in possession until a hearing is scheduled.  The LTB, as it's hearing processes function, will very rarely be in a position to schedule a hearing within 60 days or even be able to maintain such a hearing date even if scheduled.  The 60 day notice is in my view an upcoming artifact of history and the 120 day notice will be the new norm for those landlords who take legal advice or presumably use an AI to advise on the best course of action.

Michael Thiele

www.ottawalawyers.com

N.B.  please remember in reviewing this article that we await proclamation and that the new law cited is not yet in force.

  

 

Words in a residential lease: How Important are they?

Landlord and Tenants disagreeing about what is included in the lease!

You might think that knowing what you have rented (as a tenant) would be crystal clear from the outset of a residential lease.  Surely, you saw pictures, went to look at the apartment, walked around, asked questions, pictured yourself hanging curtains, etc. etc.. Then, from the other side, the landlord might think it is equally clear about what is the rental unit because--when walking around and showing the unit--they said: "you don't get the basement" or "the garden shed is mine" or "you only have one side of the garage the other side is for my neighbour". Believe it or not, disputes about these basic facts do arise with both sides being certain that their position is correct.  It gets trickier too.  What if the property has a wall insert air conditioner --imagine that there is a pool, hot tub, washer/dryer, chest freezer in the garage, or frankly any other kind of device or feature that, at the time of renting was not explicitly discussed.  What if those things are gone when the tenant takes possession? A tenant may make assumptions ... that do not mesh with the landlord's intentions.  What then?

Readers of this blog may (and I hope you do), think that the answer to any issue like this must be presumptively solved by the wording of the lease.  If memory serves, Ontario started and mandated the use of the Ontario Standard Form Residential Lease in 2018.  That standard form lease is required to be used in the vast majority of market rent residential tenancies.  This standard form lease did finally rid us of the old book store leases that often still referred in the 21st century to coal chutes, water closets, and where the horses were to be tied up.   This "standard form lease" is substantially focused on the essential elements of what matters and is of concern to both tenants and landlords.  The standard form lease (created and imposed by section 12.1 of the Residential Tenancies Act), has explicit provisions about the description of the rental unit, the amount of rent, lease term, rent deposits, insurance, smoking rules, and more.  It provides even a check box for condominium unit rentals, a direction to attach those rules, and then for quirky rules and requirements it gives us paragraph 15 which allows the attachment of additional terms and conditions.

Unfortunately, some landlords do seem to misuse paragraph 15 of the standard form lease as they insist on attaching--as additional terms--the entirety of their formerly used book store leases.  Perhaps doing this is a resentful response to being forced to use a standard form lease (?) or perhaps it is because the standard form lease does not easily allow for the imposition of illegal clauses (i.e. pet deposits, damage deposits, repair and maintenance shifting).  

In any event, given the passage of time since 2018 (start of the standard form lease), new practitioners in this area of law have become accustomed to focusing on the wording of the lease to determine what is included, excluded, and what is unaddressed.  The clarity and specificity of the standard form lease invites a strong reliance on the wording of the lease and the inserted terms.  Rules of contractual interpretation (a lease is a contract), including the doctrine of contra proferentum spring to mind for most Law Society licensees.  This latin phrase, if it isn't ringing a bell, encapsulates the idea that where there is ambiguity in a contract/lease that allows the document to bear different interpretations, the interpretation that is to be adopted is against the interest of the drafter of the document and in favour of the other party to the contract.  The idea being that the drafter who controls the pen that writes the contract/lease has the best opportunity to draft something that is "clear and unambiguous" and therefore that party should bear the burden of a lack of clarity.

It is in this context that the Divisional Court has recently had an opportunity to remind us that Residential Tenancies law in Ontario is its own special category of law.  It is not a relationship to be assessed on usual contractual interpretation principles.  In fact, it is the exact opposite and it is therefore clear from the structure of the Residential Tenancies Act that the Ontario Landlord and Tenant Board is not limited to interpreting the words on a page or necessarily giving effect to them. We are reminded that residential leases in Ontario are potentially more nuanced and uncertain as to the terms than the section 12.1 Residential Tenancies Act leases may portray.

In the case of Nissan v. Jaglal, 2025 ONSC 5713 (CanLII), decided on October 9, 2025, the Court reminds us of the PRE section 12.1 provisions of the Residential Tenancies Act--which remain in the statute at section 12.  In the age of the book store leases (or no leases whatsoever), practitioners in this area of law were constantly reminded that a residential lease was by definition "oral, written, or "implied".  Each of these were equally authoritative and in fact a residential lease could be a little bit of all of these all mushed together.  Back when there was no section 12.1 lease (standard form), the Court, the Ontario Rental Housing Tribunal, and now the Ontario Landlord and Tenant Board were charged with figuring out what the tenancy agreement provided from all of the circumstances and not just from a single document or fact.  While written leases might be useful, the scribbled signatures on a document that still referred to coal chutes, water closets and livery stables was generally not thought to reliably reflect the intentions of the signatories in the 21st century.

Back "in the day", my experience was that the greatest reflection of intention and agreement around what the lease included was based on what the parties were actually "doing".  Words aside, behaviour was instructive.

So, it was with interest that I reviewed Nissan v. Jaglal today.  In this case there was a dispute between landlord and tenant whether the rental unit (a house) included the basement or not as space rented by the tenant.  The tenant's position was that the basement was in fact included in the rental unit description and therefore it was part of the leased space.  The tenant, upset that the landlord entered the space, filed an application alleging an illegal entry into the rental unit.  Such an application can of course have serious consequences for a landlord including financial penalties and exclusion from the property.  In this case, the landlord's position was that the basement was not included in the space that was rented to the tenant--and hence, there was no illegal entry as the landlord entered space that was not a part of the leased space.

The Landlord and Tenant Board held that the basement was not included in the rental unit space.  One has to imagine that this is quite the finding given that the rental unit was a single family home.  The landlord seems to have done an admirable job in showing the leasing and renting process, highlighting the offer to return all funds prior to the tenant moving in, such that the LTB was satisfied that the rental unit on offer did not include the basement of the premises.

Unfortunately, the tenant only came to the legal principle of "contra proferentum" at the appellate stage.  He did not argue the principle at the merits stage and hence the LTB was denied the opportunity to consider the principle and therefore the Divisional Court was not going to consider the argument on a first impressions basis.

That being said, the Divisional Court reminds us that interpretation of a written lease agreement is not the beginning and end of interpretation and discernment of what a residential tenancy agreement includes or excludes.  The Court makes explicit reference to the fact that residential tenancy agreements in Ontario (to this day), are written, oral, or implied (or an amalgam of all three)--citing to section 2(1) of the Residential Tenancies Act [at para 9].  Further, and importantly, the Court reminds us that the Ontario Landlord and Tenant Board has what might be a considered a unique adjudicative function in that it is directed pursuant to section 202 of the RTA to "ascertain the real substance of all transactions ... ".  This reminder is, I think, a crucial reminder that an adjudicator is mandated to figure out what is really going on--regardless of the words on a page, the thrust of a text message, or an oral recording.  The adjudicator's mandate will be to explore all of the things that are relevant.  This reminder should lead you to a little head-scratching when thinking about the parol evidence rule and whether that principle has any application in Ontario's landlord and tenant law and the function of the adjudicative tasks of the LTB.

One last point, and I think it is worth mentioning.  This case is not an authority for a proposition that the contra proferentum principle does not apply in LTB proceedings.  The Court makes this point, I think, when it limits its comments respecting contra proferentum to "not applying to the circumstances of this case".   I understand this to mean that in future cases, where written contracts do address and create an ambiguity, or perhaps other writing from the advertisement to the text messages and emails create ambiguity, that the formation of the residential tenancy agreement around these communications can still attract the principle that interprets ambiguity against the drafter--though interestingly across different media at different times that only together amount to an actual tenancy agreement.

Michael Thiele

www.Ottawalawyers.com

Bankrupt Tenant: What is a Landlord to do?

 Landlord waiting for L1 (Non-Payment of Rent) hearing and Tenant goes bankrupt!

If you are searching for legal information respecting a tenant going bankrupt--aka making an assignment in bankruptcy or filing a proposal, you may be a landlord who has a tenant with significant rent arrears.  You may be waiting for a hearing date to terminate and evict your tenant and you have received a Notice of Stay of Proceedings from a Trustee in Bankruptcy.  What is the legal significance to you?

The simple answer, and a standard approach, is that if a tenant makes an assignment in bankruptcy before the LTB hearing commences, and no mediated agreement is entered into, then the legal effect of the assignment in bankruptcy is that the LTB proceedings are "stayed".  This means that the rent arrears that are claimed form part of the bankruptcy proceedings and are dealt with in that process.  The practical effect is that the Ontario Landlord and Tenant Board will not convene a hearing on the rent arrears that existed up to the time of the Assignment in Bankruptcy.  No order will issue, the tenancy will not be terminated, and in fact the tenancy will continue on in the normal course.  You can find numerous orders from the LTB (where an assignment in bankruptcy has occurred) explaining to the parties and in particular to the landlord, that the stay of proceedings only impacts the rent arrears up to the date of the assignment in bankruptcy.

There is some dispute, some contradictory LTB level cases, on the issue of the existing LTB file number and application being allowed to continue to adjudicate and terminate a tenancy for non-payment of rent for any rental periods that remain unpaid after the assignment in bankruptcy.  Meaning, by explanation, say the N4 covers a period of January to June and the LTB application is filed in July.  A hearing is scheduled for November.  The tenant makes an assignment in bankruptcy on September 2nd.   It is fairly clear that the Bankruptcy will capture all rent arrears from January to September (the entire month of September even if the assignment is made prior to the end of the month---because the entirety of the rent was due on the 1st of the month).  What about the arrears for October and November?  Some have argued that the LTB application can proceed and deal with the October and November unpaid rent.  That being said, I think it is now settled that the existing LTB application is not properly continued (it is stayed), and that for a landlord to recover the October and November rent they would have to serve a new N4 and start again with a new L1.  The entire month of Septembers' rent is lost even if the tenant made the assignment on say, the 2nd of September---there is clear law on this point.

As an aside, and I won't cover it much here but will mention it in case anyone has a convoluted and quirky case.  The decision in Peel Housing Corporation and Siewnarine 2008 CanLII 31815 (ON SCDC) is an instructive appellate authority where the Bankruptcy occurs and subsequent LTB orders and mediated consents are entered into.  If you have quirky facts, give this case a read.  It arises under the Tenant Protection Act so often gets missed when folks are searching Residential Tenancies Act related questions.  I do think the law is still good.  If you are representing a tenant and a bankruptcy is contemplated--it would be worthwhile to read this case for your own liability!

All that being said, and the purpose of this article today, is to draw your attention to the case IN the Matter of The Proposal Raven Wendy Suzann Farrow, 2025 ONSC 4665(CanLII).  This case, and the facts as described, are messy.  However, it reads (I think) as the expression of a very upset landlord who finds it fundamentally unjust that a tenant who is in rent arrears can BOTH 1) avoid liability for those arrears AND 2) still continue the tenancy.  The fact that the tenancy continues without the landlord being paid is an often galling realization for landlords.  Some view it as fundamentally unjust--and I suppose one can understand the point.

Anyway, part of the reason for pointing out this case is that it describes the landlord's path in seeking to lift the stay of proceedings that arises upon the tenant making the assignment in bankruptcy.   Earlier I mentioned that the LTB will inform a landlord that the termination and eviction proceedings are stayed due to the assignment in bankruptcy--i.e. no eviction or other remedy at the LTB.  You will find commentary from the LTB, to landlords, that unless the stay is lifted by the Superior Court--nothing further will happen at the LTB (that is the meaning of the "stay").

Well, this case results in the Superior Court ordering that the Stay of Proceedings is lifted "to allow the LTB action to proceed"(para 26).  The Court hopes that the LTB will schedule the matter as soon as possible.   What is unclear, but perhaps it is implied from what is being discussed more broadly in the case, is whether the lifting of the stay will then have the LTB make a typical standard Order.  A standard Order will ascertain the amount of the rent arrears and then provide a pay and stay (voiding mechanism). Arguably, such an Order is statutorily required.  The existence of the arrears is a basis for terminating the tenancy and that, in the normal course, results in termination subject only to voiding.  I am perhaps missing something, but it seems that the lifting of the stay (as ordered here) does not lift the stay only for the purpose of valuing the landlord's financial interest vis a vis the tenant's up to the date of the proposal arrears and monies owed to the landlord.  The lifted stay seems to send the entire case forward for adjudication.  Further, if you think about it, the lifted stay would then automatically capture any future and new rent arrears that arise after the date of the proposal (because LTB Applications for rent arrears include forward arrears that come into existence after the application is filed).

It appears, I think, that the lifted stay means that the LTB will determine the financial debt owed to the landlord which then will be caught by the Proposal (or an assignment)---to an extent.  However, the other part of the Order--which is termination if the arrears are not paid, is not typically a claim that is provable in bankruptcy--meaning the eviction portion of the Order does not fall into the bankruptcy--and hence simply is enforceable because the tenant doesn't void the Order as the Proposal does not count as a "voiding" action under the RTA.  I don't see in this Order that the Court limits the LTB on the scope of its usual Order and I don't see how the LTB would consider the impacts of a Proposal under the BIA or an actual Bankruptcy on its findings of the amount of arrears and damages and the eviction remedy for failing to void.  Query further, if the tenant paid rent post proposal--what stops the landlord from attributing paid rent to the oldest debt first--thereby reducing his arrears that are pre-Proposal and increasing the arrears that would not be caught by any BIA proceedings?

It will be interesting to follow this case as it goes back to the LTB.  Hopefully it is a reported decision and we can see how the Board interprets what it is to do in the face of a Superior Court Order lifting the stay on its proceedings.

Michael Thiele

www.ottawalawyers.com

Can I sue: Apartment building has severe criminality, gang activity, intimidation, and the Landlord does nothing!

Can a tenant sue a landlord when the landlord fails to control criminality in the building?

Imagine a tenant who lives in an apartment building where there is rampant drug use in the common areas, violence, threats of violence, vandalism, intimidation of tenants by others in the building, and basic criminality is a part of every day life.   How horrible it must be to live in a building like this?  Why stay there?--many ask.  The answer often is that the apartment is subsidized and moving is not an option because finding something affordable elsewhere is impossible.  Even if the unit is not subsidized, sometimes the answer is that the rent is affordable compared to renting elsewhere.  Moving is not an option as rents are high and moving costs money too.

Does a tenant have to put up with criminality, open drug use, trafficking, and all of the anti-social and anti-community impacts that these kinds of activities bring with them?  For a long time now, anyone versed in Landlord and Tenant law would point a tenant complaining of this kind of activity to a T2 Application (Tenant's Rights) that may be pursued at the Ontario Landlord and Tenant Board.  Along with that direction, most lawyers, paralegals, and clinics would tell a tenant that the chance of recovering very much, against a landlord, was low.  The concept of general damages---the award of pure pain and suffering money--at the Landlord and Tenant Board is more theoretical than real.  Even when an adjudicator is convinced to make an award the sum is generally quite modest (low).  

There are major barriers for any tenant wishing to retain a lawyer or paralegal to pursue a T2 claim against a landlord for the issues described.  One is that paying a lawyer or paralegal an hourly rate to represent them is financially challenging.  The cost of legal representation problem is compounded by the fact that the Residential Tenancies Act makes illegal any type of contingency fee that exceeds 10% of the amount that is recovered.  Given that the absolute maximum knock it out of the park home run after a hearing is $35,000 (soon to be $50,000 on October 1, 2025), the maximum legal fee on a contingent basis is $3500 (see section 214 RTA and O.Reg. 516/06 s. 60 for the contingency fee cap).   You can safely presume that getting the Landlord and Tenant Board to award $35,000 for substantial interference with reasonable enjoyment is highly improbable.  The LTB favours an abatement analysis for damages which is a percentage of the rent paid--even when a case is proven.  That approach limits the value of damages and measures them relative to the rent as opposed to a more abstract conception of fairness, harm, and putting the victim back into the position they were in (as far as money allows) before the harm.

The low awards, limit the contingency fees to be earned.  The work involved (for the legal representative) is virtually guaranteed to exceed any reasonable or modest fee that may be charged for hourly work.  This explains why lawyers and paralegals are not lining up to take on tenant cases (the inability to earn a reasonable living even when winning a case is quite dissuasive).

Another major issue (barrier) is that Residential Tenancies Law has incorporated a fault analysis into liability that looks at the reasonableness of a landlords behaviour in response to the issues raised.    This approach is adopted from cases such as Onyskiw where the Ontario Court of Appeal affirms an approach where the landlord escapes liability on repair issues where they can establish that they proceeded diligently in dealing with the repair problems.  The legal logic of these cases is applied when tenants do file T2 applications against their landlords because they are being harassed, intimidated or threatened by other tenants and their guests.  Landlords typically defend the case on the basis that they have investigated the issues/complaints, written letters, served Notices of Termination where appropriate, and are simply waiting for a hearing at the Landlord and Tenant Board.  A defence (roughly in these terms), tends to be successful as the LTB is reluctant to make the landlord liable for the behaviour of other tenants, guests, or intruders.

The problem, of course, is that a landlord who responds to issues in the building by investigating transgressions and then initiating LTB proceedings, is doing very little (to nothing at all) to prevent the behaviours from occurring in the first place.   There is little incentive, vis a vis liability to tenants, to properly vet prospective tenants to see if they are a good fit for the building.  Tenant past history, trouble at other apartments, can be ignored without any real risk to the landlord.  The idea of liability being imposed on the landlord for not properly selecting prospective tenants and carefully ensuring that the housing mix is appropriate is nothing that gets traction at the LTB.   Given limited liability and risk to a landlord when they fail to proactively protect the residential complex, fail to have adequate security, and fail to harden the property against criminality, tenants have little to no success in any claims against landlords for the incidents they have to put up with.  The best that tenants can do, today, is to establish that a landlord failed to respond to incidents in a timely way and that they should therefore be liable for the actions of those tenants/guests who are causing the problems.  You will note that this is a solution that arises only after the fact--after suffering or experiencing an incident---and then only with moderate financial success.

Is anything changing?  There is a very interesting case in Ottawa called Yasin v. Ottawa Community Housing Corporation et. al. .

The link to this case (above) is an endorsement in a civil action respecting pleadings.  It is technical and procedural.  However, the endorsement by C. MacLeod RSJ is something to take note of.  The facts in that case (as pleaded--not yet proven), is that a tenant's rental unit was invaded by a guest of another tenant who was high and paranoid.  The tenant whose unit was invaded was so terrified that she jumped from her balcony--10 metres--suffering physical and psychological injuries.

What is interesting about this case is how it is framed.  The plaintiff is alleging that the defendant landlord breached a broader duty of care.  How RSJ MacLeod responds to the pleading is far more familiar to tort lawyers than it would be to Landlord and Tenant lawyers--it is an occupiers liability framework.  The measurement of damages seems to follow more of the general damages pain and suffering model than the LTB's abatement of rent model.

It also appears, in Yasin , that the plaintiff is aiming not just at the immediate actions of another tenant, or another tenant's guest, but at the entire organization of the residential complex, the landlord's knowledge of problems in the area, and basically the foreseeability of danger and hazards in the residential complex before those dangers have manifested.   This is very interesting---and will be of great interest to tenants living in community housing buildings where they have little option of moving elsewhere.   This case potentially challenges the housing programs that focus on housing the unhoused without immediate or close analysis of the impact of housing the unhoused on the tenants who are already living in the building.    It is not uncommon to be contacted by tenants in subsidized housing complaining about their residential complex and them describing it in terms similar to the alleged facts in Yasin.  As alleged in Yasin, it is not uncommon to hear of landlords who move in new tenants with problems that quite predictably cause severe distress and trauma for other tenants in the building.   It seems that the plaintiff, in Yasin, is putting that kind of landlord practice under the microscope.

Hopefully, Yasin will end up with a trial judgment for us all to review.  It raises interesting questions that will perhaps re-shape how the LTB considers T2 applications and the obligations of landlords in tenanting a building and ensuring that there is adequate and appropriate security.  Landlords should have a duty to their sitting tenants and should ensure that in filling a building that they are making reasonable choices, not just for themselves, but also for the tenants who will need to live next to each other.

Michael Thiele

www.ottawalawyers.com

COMMENT RECEIVED AND REPLY

So, I have had a comment/discussion with someone who asked about the "occupier's liability framework" statement that I made in the article. As opposed to what other approach--is the discussion. What I meant by the "occupier's liability framework" is as follows. In a case where liability is premised on a breach of the Occupier's Liability Act the Court would look at the core duty established under the OLA which mandates that an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises are reasonably safe while on the premises. Now compare that to the LTB's approach which can be summarized as follows: Statutory obligation (s.22RTA), Duty to Investigate (2020 CanLII 31379 ON LTB), Reasonable Steps taken standard (Kovacevic v. Ranee 2024 ONLTB 6-701 CanLII para 19), and then remedies.
The landlord's liability under the RTA for tenant-on-tenant interference centres on the statutory duty and any failure to adequately intervene. The difference to an OLA analysis is therefore (and potentially) quite significant.  MKET

Mistake in Termination/Eviction Notice? Irrelevant!

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

    

Landlord's Liability for Dog Bites

 Can a landlord be responsible for a dog bite victim's injuries when the dog is owned by a different tenant?

Dog bites can be a really nasty business.  The injuries that victims sustain may range from quite minor to catastrophic permanently disabling and disfiguring injuries.  All dogs, no matter how friendly or well trained, are ultimately unpredictable and dangerous.  There are just far too many examples of friendly dogs causing significant injuries to argue the point otherwise.

In the residential landlord and tenant context landlords are not permitted to enforce "no pet clauses" in residential leases.  Section 14 of the Residential Tenancies Act prevents a landlord from prohibiting the presence of animals in or about the residential complex.  Given the known unpredictability of animals (and specifically dogs), you can read section 14 of the RTA as requiring a landlord to assume the risks that come with the presence of animals in a residential complex.  

One of the ways that a landlord can reduce the risks of liability for injuries caused by animals owned by tenants is to require a tenant to have insurance.  Paragraph 11 of the Ontario Standard Form Lease (the form of lease that most landlords are required to use), speaks to the issue of tenant's insurance.  Oddly, the paragraph provides an option where the landlord does not impose any insurance requirements on the tenant.  The alternative (second box to tick), does require the tenant to have liability insurance.  It is inconceivable to me that a landlord would not tick this box and require a tenant to have liability insurance.  In fact, it is arguable that paragraph 11 remains too vague and that a landlord should expand on the insurance requirement by adding terms at paragraph 15 of the Standard Form Lease.  An example of additional clarification would be to establish minimum coverage for any potential liability.  As losses caused by a tenant's negligence can be extremely expensive it is imperative that proper coverages be insisted upon.

Tenant's insurance will cover the liability that arises if the tenant's dog bites another person on the residential complex (or anywhere in the world for that matter based on the usual wording of tenant insurance policies).  With sufficient insurance coverage, it is likely that a bite or maul victim's lawyer will be satisfied to stop looking for additional or other defendants to pay for the damages sustained by the victim.  If the dog owner's insurance can make the victim whole then it may not be necessary to also name and sue the dog owner's landlord.

Can a landlord be liable to a victim for damages caused by a tenant's dog?  The answer is now, unequivocally, "yes".   Until very recently there was some debate in the case law that the Dog Owner's Liability Act restricted liability for dog bites to the owner of the dog.   The idea that a dog owner, plus the owner of lands on which the dog bite occurred could be liable, was an idea the case law rejected.

This law has now been clarified by the Ontario Court of Appeal in Walpole v. Crisol, 2024 ONCA 400 (CanLII).

The Court of Appeal analyzes the responsibility of a dog owner under the Dog Owner's Liability Act. Beyond that, the Court goes on to explore the issue of whether a residential landlord may be liable to a dog bite victim under the Occupier's Liability Act.  The answer is "yes", in that the Dog Owner's Liability Act does not insulate other persons (like landlords) from liability under other statutes like the Occupier's Liability Act.

In Walpole the Court looks at the record and determines that the landlord of the dog owner could indeed be liable for the victim's injuries under the Occupier's Liability Act.  The DOLA does not exclude them from potential liability.  However, in the evidence of the case under appeal the landlord was held not to be liable because there was no evidence to support that the landlord had any knowledge of the risks posed by the dog and there was no history of attacks or injuries caused by the dog to others.   Had there been evidence of the landlord being aware of the dog being unleashed, biting or being aggressive towards others, or other circumstances revealing a threat to others, then it is clear that the Court was open to finding that the landlord could indeed have been liable for the injuries sustained by the dog bite victim.  This is true even though there is no relationship between the landlord and the victim and the landlord has no legal right to prohibit the presence of animals on the property.

A lesson for landlords is to reiterate the importance of taking action against dog owning tenants where there is evidence of by-law breaches, dogs being off leash, and dog being aggressive or injuring other persons.   Landlords who "know" of dangerous animals or practices that permit dogs to attack others (i.e. being off leash and not under control) will likely give rise to liability to a dog bite victim.  While a Landlord is not permitted to prohibit the presence of animals via a lease condition, a landlord may (must & should) take action to terminate a tenancy of a dog owner where the dog owning tenant breaches by-laws, leashing, or keeping their dog under control.  Taking action to terminate and evict will be the reasonable action needed to reasonably ensure the safety of persons entering on the property.   It is likely sage advice to landlords to keep an eye open for pet behaviour, document same, and take action if there is any non-compliance.

Unquestionably, it will be a difficult task for a landlord to regulate a tenant's behaviour with their dog and to always ensure that a tenant is a responsible dog owner.  As it will be an imperfect circumstance, forcing the tenant to have insurance and making sure that the insurance is in place, with sufficient coverage, is something that may protect the landlord from unwanted legal claims by injury victims.   If the dog owner has insurance in place then the strict liability of that owner under the Dog Owner's Liability Act will likely stop a victim from bothering to assert a claim against a landlord.

If a dog owner does not have insurance then a victim will be forced to look for someone who may be liable who does have insurance (or assets to seize).  That "someone" will very likely be the landlord.  It is to be noted that the landlord's degree of responsibility will possibly be a small percentage of the total responsibility as divided between the dog owner and the landlord.   One might think, then, that the extent of the financial risk to a landlord is small.  That would be in error in analysis as the landlord will likely be liable to indemnify a bite victim for the entirety of the damages the victim sustained even if the landlords percentage of responsibility for the dog bite incident is low.  The landlord may have the right to recover the full losses that they are forced to pay to the injury victim from the dog owner.  For example, if the responsibility is divided 10% landlord and 90% dog owner, the landlord would still have to pay the victim 100% of the damages but be entitled to recover 90% of what the landlord paid from the dog owning tenant.  And while that might sound "fair", if a tenant has no insurance and no assets, then the landlord in all practical terms will recover nothing from the dog owner.  Hence, another reason to ensure that all of the landlord's tenants are properly insured and that the insurance requirement is followed up with and verified to be in place for the duration of the tenancy.

Michael Thiele

www.ottawalawyers.com

When is the Rent late?

 Determining when rent is late in Ontario.  It's not necessarily obvious.

Much turns on the question of when rent is due and when it may, legally, be considered "late".  If rent is late there are two possible legal claims that will begin to make life difficult for residential tenants.  Those two legal claims are the N4 (Termination for Non-Payment of Rent) and the N8 (Termination for Persistent Late Payment of Rent).

The N4 Form is the formal Notice of Termination that is issued under the Residential Tenancies Act.  It is a voidable Notice of Termination in that a tenant can "void it" if they pay the rent that is owing to the landlord by the termination date that is set out in the N4 Form.  The termination date is a minimum of 14 days after service of the N4 and it is specifically highlighted in the Form.  This 14 day period is often understood to be a grace period.  So long as rent is paid within that 14 day window the tenancy continues and there is no immediate or perceived harm to the tenant.

The key to the N4 Form is that it may only be served when rent is late.  It can not be served in anticipation of rent not being paid nor can it be served at any time prior to the ultimate deadline of the rent being paid.  Also, it is not properly served if the rent is paid, after it is due, but before the N4 is issued.

If an N4 can not be served until rent is officially "late" then it is indeed important to understand when rent is actually late--according to law.  To that end, most rent due dates may be determined by looking at the written lease.  Most leases indicate that rent is due on the first of the month and most leases adopt a calendar month as the rental period.  Even within a fixed term lease of say, 1 year, the year is made up of 12 monthly rental periods.  The lease indicates the date on which the rent is due and that is typically the first of the month.  However, nothing stops a landlord or tenant from indicating in the lease a different rent due date.  A rental period may run, for example, from the 15th to the 14th of the following month.  It is inconvenient, often confusing, but totally legal.  

Some leases fail to indicate the day that rent is due.  Some tenancies don't have formal written lease and instead are oral or implied from the circumstances giving rise to the occupation of the rental unit.  That is perfectly legal too.  Residential leases in Ontario are equally valid whether written, oral, or implied.  These leases can raise an interesting question as to when the rent is actually due.  Section 13 of the Residential Tenancies Act states that a tenancy commences on the day that the tenant is entitled to occupy the rental unit.  Absent a written lease setting out the rent due date, the operation of section 13 may actually create a different rental period---for example from the 27th to the 26th of the following month and therefore create a different rent due date.

If a lease does not follow a calendar month then it is important to figure out if rent is actually late or not in fact yet due.  This timing issue may lurk in the background of a tenancy even if the landlord and tenant subsequently adopt a payment schedule of the calendar month.  While everything in the tenancy is going fine and a tenant is having no trouble it likely doesn't matter, precisely when rent is due, as the rent is paid.  However, if finances are challenging and a tenant is having trouble meeting all financial obligations it may be that the timing of payments (coordinating with times of getting paid) is very important.  A few days sooner or later may indeed be the difference between being on time or receiving an N4 to terminate a tenancy for non-payment of rent.

Another way that the rent due date may be affected is by a standing agreement or terms agreed to at the beginning of a tenancy.  I recall a case where I was representing a tenant who was arguable "always late" or "always on time".  Now, that did not seem to be possible but here is what happened.  The tenant was a single mother who aggregated her income over the course of the month from different sources.  She did not get paid reliably on the same days every month and in that sense her income fluctuated.  At the commencement of her tenancy she told the superintendent who rented her the apartment about her income and that she needed flexibility.  The superintendent, a kind and empathetic person told her it wasn't a problem and that as long as she paid the rent within the month that it was due that it was no problem.  The superintendent kept the books and the arrangement worked well.  That is, until the Superintendent moved on and was no longer employed by the landlord.

The new superintendent was less kind and insisted that the tenant pay the rent, on the first of the month, as her lease stipulated.  On its face, it looked like the rent was late every month.  This case ended up in front of the Landlord and Tenant Board and the issue in the case was "when" is the rent due.  This determination mattered because the Application to the LTB raised the possibility of eviction and the possibility of having to pay the costs of the application.  If the rent was paid "on time" by being paid within the month then the tenant's tenancy was perfectly safe as there would never be a basis to serve an N4 or an N8 if the rent due date was flexible.  If the rent was due on the first well then an N4 would likely be issued every month and eventually the rent would be persistently late and an N8 would be warranted.  Winning the argument on when "rent is due" (or "when is rent late") is therefore critically important.

There are some odd situations respecting rent due times as well.  Some landlords pick up the rent from the apartments and go door to door.  If rent is due on the first does a tenant have to be sure to be home to meet the landlord failing which rent is late if the tenant steps out?  (No).  Can a landlord stipulate that the rent is due by the close of business (i.e. the landlord's business office) on the 1st day of the month after which it is late? (no).  Can the landlord require payment in cash or in some way other than how it was agreed to be paid in the lease failing which it is late or refused? (No).  Can a landlord require that rent be paid early (before it is due) in case of an upcoming holiday and provide no way to pay the rent on the due date? (No).    There is no legal dispute with the fact that rent may be paid by a tenant up until midnight of the day that it is due (regardless of what the landlord may like).  If the landlord offers a drop box then the tenant may pay by drop box up until midnight.  Rent is not late if the landlord doesn't get around to cashing a cheque, money order, or accepting an e-transfer until after the due date.  A landlord can not manufacture a late rent payment to allow the service of an N4 or an N8.  Lateness is not determined by when a landlord cashes a cheque/etransfer/money order.

In the case I mentioned above, the legal argument respecting payment within the month of the tenancy is to cite to the principle of condonation.  The principle, as applied in that case, was that the landlord's "condoning" of payment within the month, without objection, created an agreement changing the due date of the first of the month (if in fact that was ever the agreed upon due date).  The LTB found that the tenant's rent due date was within the month that the rent was due.  I insisted that this flexible rent due date be recognized in the LTB Order as the important to the tenant's security of tenure by having a flexible rent due date was critical.

If a tenant can avoid getting an N4 altogether (based on rent due dates---or rent late dates) then the tenant will also avoid getting an N8 for persistent late payment of rent.  All of this is good for preserving the tenancy.  I mention this because I see enough cases where tenants walk away from the flexibility that they had in place in exchange for dismissal of an eviction application and a certainty that their tenancy will continue in the immediate future.  This can be a mistake as the flexibility as to rent due dates is what allows the tenant to continue to juggle the financial balls and continue the tenancy.  Agreeing to a fixed due date can seal the eventual fate of eviction due to late payment or persistent late payment.

I do think that more thought needs to be given to setting the fixed payment date and to explore what the agreement reflects and what the actions of the parties revealed over time.  The simple words of the lease may not be accurate as to the payment due date in law--and hence the date of when the rent is late remains uncertain.  If a tenant has paid late, but has always paid, over the years and a landlord has not served an N4 each time that rent was technically late then one might argue that the late payment was condoned by the landlord and hence rent was not late nor persistently late.   Where tenants, by virtue of their income, need flexibility, is it incumbent on representatives and tenants themselves to negotiate for that flexibility and to retain any existing flexibility when appearing at the LTB on N4 and N8 applications to terminate the tenancy.

Michael K. E. Thiele

www.ottawalawyers.com  

Landlord owed more than $35,000 in rent arrears

 To which Court or Tribunal should the case go?  Landlord and Tenant Board or Superior Court of Justice?

Increasing monthly rent amounts and the inefficiencies at the Ontario Landlord and Tenant Board have given rise to some unusual jurisdictional problems.   The Ontario Landlord and Tenant Board has a monetary jurisdiction of $35,000 as per section 207 of the Residential Tenancies Act.  On its face, this means that the Ontario Landlord and Tenant Board has the authority/power to order a person(s) to pay to another the amount of $35,000.00.   Hence, in a rent arrears case, if the tenant owes the landlord any amount up to $35,000 the Landlord and Tenant Board can Order the tenant to pay that amount and terminate the tenancy of that tenant if the amount is not paid.   There are other provisions in the Residential Tenancies Act dealing with "paying and staying" and there are requirements under the Act to allow the tenant to void an eviction Order, once made, by paying the arrears.  Within the context of proceedings to terminate a tenancy for non-payment of rent (at the Landlord and Tenant Board) there is the procedural fact that the Landlord and Tenant Board imposes no meaningful costs of any kind on the unsuccessful party in its hearings.  Meaning both sides absorb the expense of their own legal fees regardless of winning or losing (I mention this here--unusually--because the option to proceed in Court makes recovery of legal fees a possibility in that venue--versus being not recoverable in the LTB venue). To be clear, this article is not exploring anything really useful for cases involving sums under the $35,000 LTB jurisdiction. The Rules are clear and the jurisdiction of the Landlord and Tenant Board is exclusive when the amounts at stake are under $35,000.00.

What then happens if the tenant(s) owes the landlord more than $35,000.00?   The procedural pathway has not been obvious or clearly prescribed.  There is no useful guidance memo on the LTB site and exactly what to do about claims in excess of jurisdiction has been the subject of some debate and different expressed views by sitting adjudicators.   For many landlords, the nuanced legal views on jurisdiction are too lofty and impractical to parse and so they simply waive the amount of arrears that exceeds $35,000 and proceed to get an eviction Order based on the maximum LTB jurisdiction.  This is effectively a waiver of rent arrears in excess of this amount---or at least it looks like a waiver--meaning the understanding is that the waiver operates as a release for any arrears above that amount (essentially a gift to the tenant).

Waiver is not always how it is done.  There are a few interesting cases where Landlords have proceeded with claims at the LTB, far in excess of the $35K jurisdiction, and the outcome is not a waiver or forgiveness of the excess amounts.  The Orders in these cases require the tenants to pay the $35,000 in rent arrears--so this aspect of the Order is limited to the jurisdiction maximum.   HOWEVER, if the tenant wishes to remain in possession and continue the tenancy, the Order requires the tenant to pay the actual amount owed (yes, the total amount even above $35,000) to void the eviction Order. Hence, there is a chance, if proceeding at the LTB for eviction for non-payment of rent for an amount in excess of $35K that the tenant will have to pay the full amount if the tenant wishes to continue the tenancy.

If the tenant does not wish to continue the tenancy and is happy enough to allow the eviction to be enforced then the LTB Order does cap out at $35K and the landlord, at least as far as this Order is concerned has waived the arrears in excess of the $35K because the Order does not make the amount in excess of $35K collectable.   Does this mean it is an actual waiver or release of the excess?  I do not think that it is.  If the landlord does not expressly waiver the amount above $35K then the amount of that debt is not implicitly forgiven.  There is no electing into the LTB jurisdiction and no overt "limiting" of the claim to $35K.  It means, I think, that the amount in excess of $35K is still a debt owed to the Landlord but just not recoverable at the LTB.   I think it should be arguable that the landlord can indeed file a separate claim for the excess amount in Court for the excess amount.  I think it would be difficult to argue res judicata (a technical bar to litigating a claim that has "already been decided) to the excess amount as the LTB did not have jurisdiction to decide anything in relation to that amount above $35K.   Query then, do you sue in Small Claims for the excess amount if the excess amount (balance above $35K is less than the jurisdiction of the Small Claims Court which also happens to be $35K?).   Some might ask, if this is possible why sue in Small Claims if you could just file a separate L10 at the LTB for the difference.  And then, as you think about that Pandora's box opens and you start to think about splitting the claim and all the legal principles that have developed over the years to prevent multiple proceedings based on the same basic facts.  

The logic of the cases (at the LTB) maintaining the entirety of the arrears (including the amount over $35K) is that the LTB can not Order a tenant to pay more than $35,000.00 but it can refuse to issue an order voiding the eviction portion of the Order unless the total amount of rent arrears is paid.   Hence, a landlord proceeding at the LTB for amounts in excess of $35,000 will only get a Judgement for $35,000 against the tenant but will also get an eviction and vacant possession.  The only way a tenant gets to retain possession of the rental unit is to pay the entire amount even though it exceeds the monetary jurisdiction of the LTB.

SUING IN THE SUPERIOR COURT for the full amount AND eviction

I was interested to see that there is a fresh case from the Superior Court called Ji Zhou v. Azadeh Hasem Nia et. al decided September 28, 2023.   The case is not all that remarkable except that it describes a common circumstance of many landlords these days.  Due to LTB delays many rent arrears cases are sitting so very long waiting to be heard that the amount of the arrears exceeds the jurisdiction of the LTB by the time the cases are heard.  Some landlords are not interested in waiving the excess above $35,000 and some landlords believe that their tenants are sufficiently credit worthy that it is worthwhile to get a Judgement for the full arrears in addition to an eviction Order.

In this case (cited above), the landlord had proceeded at the LTB.  Was successful in getting an Order and then the tenant initiated a review process that severely delayed the eviction and hearing.  With LTB institutional delays the landlord decided to withdraw the case from the LTB.  The LTB permitted the withdrawal of the application.   The landlord then sued in the Superior Court for the full amount owed and for an Order terminating and evicting the tenants.

The procedure in this case is very interesting for how it moved through the Residential Tenancies Act requirements and for how the Court seemed to deal more harshly (many would say properly) with significant rent arrears.    The Landlord, after issuing and serving the claim, decided to seek Summary Judgment under Rule 20 of the Rules of Civil Procedure.   This is a summary process--intended to be quick and efficient.  For those who are aware, the availability of Summary Judgment seems to be a perpetual question notwithstanding appellate directives.  Hence, it is very interesting to see here that the Court had no difficulty in proceeding with the matter as a Summary Judgment proceeding.   That is good to know and a good precedent to have if choosing to proceed in the Superior Court.

Notable as well is that the Court awarded "real" costs against the tenants when the case went against them.  I imagine that if the LTB would start visiting consequences on unsuccessful parties as the Court does here that the backlog would be significantly shorter.

The decision also raises interesting questions about the issuance of the Writ of Possession and the non-voidable (apparently) nature of the Order.  In total, it seems here that the Superior Court of Justice is able to deliver the expedited procedure and speed that the Landlord and Tenant Board is no longer capable of doing.  Looking at this decision one can imagine that the Court is soon to become the preferred venue for pursuing LTB cases for rent arrears.

Michael Thiele

www.ottawalawyers.com