Consent Termination Re: N11 (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-25
CLNP Page ID:	852
Page Categories:	[Notice of Termination by Tenant (LTB)], [Landlord & Tenant (Residential)], [Section 43 (RTA)], [Section 46 (RTA)], [Section 77 (RTA)], [Section 83 (RTA)], [Consent Terminations]
Citation:	Consent Termination Re: N11 (LTB), CLNP 852, <https://rvt.link/3->, retrieved on 2024-04-25
Editor:	Sharvey
Last Updated:	2023/10/23

Residential Tenancies Act, 2006, S.O. 2006, c. 17, Section 43

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.

46 (1) A notice of termination becomes void 30 days after the termination date specified in the notice unless,

(a) the tenant vacates the rental unit before that time; or

(b) the landlord applies for an order terminating the tenancy and evicting the tenant before that time.

(2) Subsection (1) does not apply with respect to a notice based on a tenant’s failure to pay rent.

77 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if,

(a) the landlord and tenant have entered into an agreement to terminate the tenancy; or

(b) the tenant has given the landlord notice of termination of the tenancy. 2006, c. 17, s. 77 (1).

(2) The landlord shall include with the application an affidavit verifying the agreement or notice of termination, as the case may be.

(3) An application under subsection (1) shall not be made later than 30 days after the termination date specified in the agreement or notice.

(4) On receipt of the application, the Board may make an order terminating the tenancy and evicting the tenant. 2006, c. 17, s. 77 (4).

(5) An order under subsection (4) shall be effective not earlier than,

(a) the date specified in the agreement, in the case of an application under clause (1) (a); or

(b) the termination date set out in the notice, in the case of an application under clause (1) (b). 2006, c. 17, s. 77 (5).

(6) The respondent may make a motion to the Board, on notice to the applicant, to have the order under subsection (4) set aside within 10 days after the order is issued.

(7) An order under subsection (4) is stayed when a motion to have the order set aside is received by the Board and shall not be enforced under this Act or as an order of the Superior Court of Justice during the stay.

(8) If the respondent makes a motion under subsection (6), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (4), if,

(i) the landlord and tenant did not enter into an agreement to terminate the tenancy, and

(ii) the tenant did not give the landlord notice of termination of the tenancy;

(b) make an order setting aside the order under subsection (4), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so; or

(c) make an order lifting the stay of the order under subsection (4), effective immediately or on a future date specified in the order.

83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time. 2006, c. 17, s. 83 (1).

(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1). 2006, c. 17, s. 83 (2).

(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the application where satisfied that,

(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. 2006, c. 17, s. 83 (3).

Pelletier v. Bloorston Farms Ltd., 2023 ONSC 5626 (CanLII)

[15] I conclude that the Board erred in law. The alleged misrepresentation was a separate argument from that of duress. Similar representations were the subject of evidence from another tenant, Mr. Pelletier’s son, who did not sign the agreement presented to him. This evidence went to the heart of the question: why someone who had lived 10 years in a building with rent commensurate with his income, objectively far below market rent in Toronto, would sign such an agreement? Section 77(8) of the RTA required the Board to grapple with this evidence, the submissions, and to explain why it had rejected the evidence of misrepresentation, which was confirmed by other evidence. It did not do so.

[16] The error at first instance was repeated at the review stage which found that the Board member at the motion had “considered the validity of the agreement, including any misrepresentations, and provided cogent reasons for her rejection of the Tenant’s claims of misrepresentation.”

[17] This is not an accurate description of the reasons for rejecting Mr. Pelletier’s motion for relief from eviction.

[18] Alternatively, if the Board at the hearing or on review concluded that duress and misrepresentation arose from the same factual and/or legal foundation, this is an error. Duress and misrepresentation are separate legal concepts: Deschenes v. Lalonde, 2020 ONCA 304, at paras. 28-29.

[19] As the Supreme Court noted at paras. 81 and 86 of Vavilov, reasons are the way that administrative decisions are explained to parties. This is particularly important where the reasons are silent on critical evidence that affects the significant rights and interests, in this case accessible and affordable housing, of a vulnerable individual: see Vavilov at para. 133.

...

[22] Mr. Pelletier also submits that the Board erred in its failure to apply s. 202 of the RTA which requires that the Board “in making findings shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so, may disregard the outward form of a transaction or the separate corporate existence of participants; and may have regard to the pattern of activities relating to the residential complex or the rental unit.”; RTA, s. 202(1)(b).

[23] As with the submissions under s. 77(8), the landlord does not dispute the application of these remedial portions of the legislation but relies on the findings of credibility by the Board as applying equally to the aspects of the evidence relative to misrepresentations that are absent from any discussion in the Board’s reasons. For the reasons provided above in the analysis under s. 77(8), I do not accept this submission as it relates to the Board’s duty to consider s. 202 of the RTA. There is no indication that the Board considered the good faith of the landlord given the evidence of misrepresentation before it, and circumstances that suggested that the agreement was at the landlord’s instance, for the landlord’s objective benefit.

[24] As the Divisional Court noted at para. 40 of Pinto v. Regan:

Section 202 of the RTA imposed a statutory duty on the Member to determine questions of fact and to apply governing principles of law to ascertain the real substance of the transactions and activities regarding the rental units at issue, and the good faith of the parties to the N11. The Member did not consider all the evidence to determine the element of good faith on the part of the respondent other than making a passing reference in the Reasons. The Member did not take the totality of the evidence into account when he applied the substantive law. This amounted to an error of law.

I adopt this reasoning and apply it in the instant case.

[26] On appeal, Mr. Pelletier also argued that the Board erred in its treatment of his argument that the agreement was void for being unconscionable. An agreement is liable to being found unconscionable where there is evidence of inequality of bargaining power and an improvident transaction: Uber Technologies Inc. v. Heller, 2020 SCC 16, at paras. 62 - 63.

[27] I would not give effect to this argument on this record. Mr. Pelletier did not pursue this submission on review, relying on the errors relative to the misrepresentation argument which in my view are stronger points. The evidence of vulnerability or issues of capacity on the part of Mr. Pelletier to contract with his landlord is not as compelling as the issue of misrepresentation and the failure of the Board to carry out its statutory duty given that evidence.

[20] I conclude that the Board erred in law by failing to undertake its statutory duty under s. 77(8) of the RTA to have regard to all the circumstances around the making of this agreement, including any misrepresentations and in considering those facts in determining whether it would not be unfair to set aside the order of eviction.

TNL-15345-11-SA (Re), 2011 CanLII 26973 (ON LTB)

1. The motion revealed that the Notice N-11 was only signed by the Tenant R.O. P, but 1not by A. M, who is also a Tenant, who has signed the lease.

2. Given that both signatures are needed to validate the Notice N-11, this Notice is not in compliance with section 77 of the Residential Tenancies Act, 2006 (the 'Act') and therefore the motion to set aside order TNL-15345-11 is granted. It is noted that a note dated January 31, 2011 (Exhibit L-1) from the Tenants to the Landlord cannot be construed to be an agreement to terminate, as this is not stated in the note.

3. Even though the Tenants did not agree to vacate as claimed by the Landlord, they are moving on or before April 30, 2011, which they hopefully will do without the Landlord having to file an application based on the Notice N-12, thereby fulfilling their duty to mitigate pursuant to section 16 of the Act, which is a mutual obligation in a Landlord –Tenant relationship.

4. Given that there is no agreement to terminate, this application shall not succeed.

SWL-30382-19-SA (Re), 2019 CanLII 87684 (ON LTB)

15. In The Law of Contract in Canada (1976) by G.H.L. Fridman, the learned author states at p. 123 as follows:

“There are other grounds which, either at common law or in equity, may justify the repudiation of consent once given so as to vitiate an otherwise valid contract. Whether what is involved is duress in the strict sense, undue influence as that notion was developed in equity, or the more modern, perhaps vaguer and more generalized idea of unconscionability, the essence of granting rescission of, or similar relief from an otherwise binding contract is that the victim’s consent was not obtained or given when he or she was physically, emotionally, or intellectually free and competent to give it, but was the product of some minatory, over-weening or improperly persuasive conduct on the part of the guilty party.” {emphasis added]

16. In Stott v. Merit Investment Corp., 1988 CanLII 192 (ON CA) Finlayson J.A. stated, in part, as follows:

… But not all pressure, economic or otherwise, is recognized as constituting duress. It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to “a coercion of the will”, to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no “realistic alternative” but to submit to it, to adopt the suggestion of Professor Waddams (S.M. Waddams, The Law of Contract, 2nd ed. (1984), at p. 376 et seq.). Duress has the effect of vitiating consent and an agreement obtained thorugh [sic] duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned contract at a time when he is no longer the victim of the duress.

17. There was some inconsistency between the testimony of the Tenant and S.N. about who was in the office on March 9, 2019, when the Tenant was given the two notices and how many times and in what manner S.N. followed up with the Tenant to enquire as to whether she had signed the N11. There was also disagreement about what specific information or opinion that S.N. had given the Tenant about the potential outcome of a hearing. However, the salient facts that are not in dispute are:

a. The Tenant has a disability of which the Landlord was well aware;

b. The tenancy is of lengthy duration and is geared-to-income meaning there is significant financial benefit for the Tenant to preserve the tenancy;

c. The Tenant did not approach the Landlord with a request to terminate the tenancy. In fact, the Landlord made the decision to evict the Tenant and “offered” a way to avoid an eviction hearing;

d. The Tenant told the Landlord’s representative that she did not want to move;

e. The Tenant signed the N11 without the benefit of legal advice but filed a motion to set aside as soon as she did obtain legal advice; and

f. The Landlord’s representative acknowledged that it might have been the “pressure” the Tenant felt which had caused her to sign the N11 in spite of his having not imposed a specific time deadline.

18. The Tenant went into the meeting to which she was summoned by the Landlord with the expressed intention of maintaining her long term tenancy. She was given a choice between an eviction hearing and agreeing to vacate. If she had chosen the eviction hearing option the Board might have declined to evict her on the grounds that she had not been home and was not the person who allowed her son to enter the building on the day he caused the damage. Even if the Board had found her responsible, the Tenant would have had the opportunity to argue for relief, or at the very least, delay of eviction, in which case the Tenant might have ended up owing the $175.00 filing fee. So ultimately, the Tenant agreed to leave giving up a geared-to-income housing, providing financial stability in a unit she had occupied for 13 years rather than face a hearing and the potential of winning or risking losing and paying $175.00.

19. The fact that the Tenant, a disabled person without legal advice entered into such an improvident agreement, dictates that it would be unconscionable to let the agreement stand.

TSL-41201-13-SA (Re), 2013 CanLII 51078 (ON LTB)

1. This issue to be determined by the Board is whether the Landlord and the Tenant had an agreement to terminate the tenancy.

2. The residential property is a bachelor condominium unit. The Tenant has lived in the unit for 8 years.

3. The Tenant’s evidence was that she signed the Agreement to Terminate a Tenancy (Form N11) under duress and she had no knowledge and did not realize the consequences of what she signed. The Tenant initially stated that she signed the Form N11 without reading it, but later stated that she did read it but did not understand the consequences. The Tenant indicated that she was on anti-depressants when she read the Form N11.

4. The Tenant acknowledged that there had been an ongoing agreement with the Landlord to move out. However, the Tenant has been unable to find a new residence.

8. This motion is brought pursuant to subsection 77(8) of the Residential Tenancies Act, 2006 (‘the Act’), which states that after a hearing the Board may make an order setting aside the order if the landlord and tenant did not enter into an agreement to terminate the tenancy; or whether or not “the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order”.

Based on the evidence before me, I find that the Landlord and the Tenant agreed to terminate the tenancy on May 31, 2013 and they both signed the Form N11. I question the Tenant’s credibility because she initially stated that she did not read the document prior to signing, but then when questioned about that, indicated that she had read the document and was on anti-depressants at the time. I find that it is more likely than not, that the Tenant read the Form N11 and understood what she signed and the consequences. I say this because the Tenant had previously signed a Form N9 and sent it to the Landlord. Form N9 and Form N11 are both similar documents about terminating the tenancy. The Form N11 and the Form N9 both clearly indicate that the parties agreed to terminate the tenancy for the rental unit. As such, the Tenant knew or ought to have known the consequences of signing the Form N11 since she provided a very similar document to the Landlord to terminate the tenancy. The Tenant did not lead sufficient evidence that because of her medication she was unable to read/understand the document. Also, I am not of the view that the Tenant has provided sufficient evidence that she was under duress when she signed the N11. I say this because the Landlord mailed the Form N11 to the Tenant and as such, the Tenant would have time to read the document prior to signing it. This is not the case where the Landlord presented the document in person and hurried the Tenant to sign.

9. As a result of the above, I am not satisfied that it would not be unfair to set aside the order. As such, the Tenant’s motion shall be denied.

10. I have considered the Tenant’s submissions about a delay in moving out and taken into consideration that the Tenant has lived in the unit for 8 years. I also considered the Tenant’s health and employment situation. I considered the Landlord’s submissions and her health issues. As such, pursuant to subsection 77(8)(c) of the Act, I will delay the lifting the stay of order TSL-41201-13 for a short period of time, until July 8, 2013 in order to given the Tenant an opportunity to find a new residence.

TEL-87359-18-SA (Re), 2018 CanLII 111792 (ON LTB)

25. On March 21, 2018, the local municipality issued a Notice of Violation with respect to the illegal rooming house.

32. When the Landlords found out they were operating an illegal rooming house, what they should have done is serve the appropriate notice to terminate. In circumstances such as these most landlords serve an N5 alleging the illegal rooming house is substantially interfering with a lawful interest of the landlord because the municipality is threatening prosecution for the zoning infraction. Some landlords serve an N6 alleging the tenants are committing an illegal act by occupying an illegal rooming house.

34. Their letter of November 5, 2017 says the Tenant has to move out by December 5, 2017 because the police gave them 30 days to clear the basement. In other words, the Landlords falsely informed the Tenant he had to sign the N11 form. As the Tenant clearly did not realise that was untrue, he did not give informed or voluntary consent to terminate his tenancy. To refuse to set aside the eviction order in that situation would be fundamentally unfair.

35. I would also observe that it is not entirely clear that the Landlords are still in violation of the local zoning by-law. If they are then they have the option of serving the appropriate notice to terminate.

36. This order contains all of the reasons for the decision within it. No further reasons shall be issued.

It is ordered that:

1. Order TEL-87359-18 issued on January 10, 2018 is set aside.

2. The Landlord's application is dismissed.