Too many small to medium sized landlords learn the hard way that you need to know a lot to bring an eviction application to the Landlord and Tenant Board. The Ontario Residential Tenancies Act, Notices of Termination, and case law are not easy to understand. The board has its Interpretation Guidelines to try to help the self-represented and small landlords.
It may not be enough.
Application Dismissed for Technical Reasons
Most landlord applications are preceded by a Notice of Termination served on the tenant; such as an N4, N5, N6, N7 N8, N12, and N13. If the Notice of Termination is missing key information the board should dismiss your application.
Sections 43(1) and 43(2) state the information required in a Notice of Termination. It states:
“43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,
(a) identify the rental unit for which the notice is given;
(b) state the date on which the tenancy is to terminate; and
(c) be signed by the person giving the notice, or the person’s agent.
(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,
(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);
(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and
(c) if the landlord applies for an order, the tenant is entitled to dispute the application.”
Too often self-represented landlords fail to properly identify the rental unit. They forget to add an apartment number, or state basement apartment. Sometimes, no one mentions during the hearing that tenant rents a certain apartment number. In that case, the landlord may get an eviction order, but may find that the sheriff is unwilling to enforce the eviction order.
In the case of Ball v. Metro Capital Property and Lockhurst (December 19, 2002), Toronto Docket No. 48/02 (Div. Ct.), the Divisional Court determined that an N5 notice of termination was defective as the notice failed to give the tenant enough information to know the case against her, and to be able to correct the behavior within seven days. The case also stated that the notice must contain specific dates and times when bad behaviour occurred.
An LTB adjudicator called a Member is required to strictly interpret the law.
The LTB provides mediation services if both the landlord and tenant are willing to work out a deal. A mediator is not restricted by technical errors in completing the forms.
A landlord may be able to get around any technical errors in the notice of termination by coming to a mediated settlement.
A Landlord and Tenant Board adjudicator will usually ignore these technical errors in the notice of termination if the landlord and the tenant come to a consent on how to resolve the application. The board adjudicator will prepare a consent order.
Relief from Eviction
On every application the board is required to consider all the circumstances disclosed to determine whether it would be fair to delay or deny an eviction.
If the tenant can prove any of the following, then the board must refuse an eviction.
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;
(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;
(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;
(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or
(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.
Many self-represented landlords are unaware of these requirements. Often self-represented landlords fail to put forward any evidence of how the board delaying or denying an eviction will affect them.
Worse, landlords are not prepared to ask questions of the tenant or the tenant’s witnesses on this point.
Many self-represented parties plan to prove vital facts by producing a witness letter. They are unaware that virtually ever board member’s view is that witness letters carry no weight.
If you choose not to hire an experienced Ontario licensed paralegal to represent you, you may find your application dismissed for technical reasons, or you may not be aware what you are required to prove and how to prove it.
Our office receives calls from small landlords everyday who have had their cases dismissed. Sometimes the small landlords don’t even understand why their case was dismissed.
If you are in Toronto or the GTA and you need to hire a paralegal for an LTB case, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/