Notice Law - N5 (Substantial Interference)
- 1 Regular Interference vs. Substantial Interference
- 2 Incorrect Information Regarding How to Void the Notice
- 3 Void for Vagueness
- 4 Multiple Notice's Cause Confusion
- 5 Unlawful Use of Common Space (Storage)
- 6 Landlord Not Correctly Named on the Notice
- 7 Moving Out According to the Notice
- 8 Morguard Residential v Asboth, 2017 ONSC 387 (CanLII)
Regular Interference vs. Substantial Interference
 As indicated in paragraphs 22 and 23 of the Decision, the Board concluded that the Tenant had substantially interfered with the lawful rights and interests of the Landlord, and specifically the obligation pursuant to s. 20(1) of the Act to keep the rental units in a good state of repair. The Board did not, however, refer to what constituted “substantial interference with the lawful rights and interests.” Nor were we referred to prior decisions on this issue.
 In Parkview Management v. Dehas, the Board held that the tenants had interfered with the lawful right, interest or privilege of the landlord by installing a satellite dish antenna on the exterior of the building. He concluded that “substantial” applied both to the interference and to the right, privilege or interest.
 In Morguard Residential v. Peters the Divisional Court upheld the decision of the Board that, in not keeping the unit in a state of ordinary cleanliness, which was supported by photographs and other evidence, the Board had reasonable grounds for concluding that the Tenant had substantially interfered with a lawful interest of the landlord, namely the landlord’s obligation to comply with section 20 of the Act.
 In North Avenue Road Corporation v Travares the Board found that the impact of the quantity of cigarettes the tenant consumed substantially interfered with another tenant’s reasonable enjoyment of her rental unit and that a “lawful, privilege or interest of the Landlord was substantially interfered with” because of the tenant’s smoking. The Board decided, however, not to exercise its power to evict pursuant to subsection 83(1). The Divisional Court agreed with the Board’s conclusion on substantial interference but held that, in deciding against termination of the tenancy, the Board erred by failing to consider the greater responsibility of the Landlord pursuant to s. 20 which extended beyond the specific complaint. The Divisional Court granted the appeal of the Landlord and sent the matter back to the Board for re-hearing.
 The Board held that the fact that an insurance company refused to provide a quote for the Landlord after seeing the amount of “stuff” the tenant had on an exterior balcony and piled up in the kitchen window interfered with the landlord’s financial interest but not to the standard of “substantially” as required by the Act. With respect to the fire hazard and the hoarding and the pest control issue, the Board found that the failure of the tenant to move his belongings around and prepare for treatment constituted a substantial interference with a lawful right, privilege and interest of the landlord but the conduct of the tenant had largely been fixed during the 7 day notice period and the N5 notice was voided. In the end, the Board did not terminate the tenancy but imposed many conditions on his future occupancy.
 As these cases demonstrate, the circumstances in which the Board has found a “substantial interference in the rights and interests of the Landlord” are those such as smoking, hoarding that creates a fire hazard, failure to prepare a unit for pest control treatment, and affixing a structure to the exterior of the building.
 We are satisfied that the Decision is not reasonable for two reasons.
 The first reason arises from the Board’s conclusion that the Tenant’s actions substantially interfered with the Landlord’s “lawful rights and interests”. Based on paragraph 27, it is clear that the substantial interference found by the Board pertained to interference with the Landlord’s obligation to maintain the property in a habitable state. The Board held that the Tenant’s actions “substantially” interfered with those obligations because they had the effect of putting other residents at risk of exposure to pests and other hazards that might arise from the rental unit.
 We acknowledge that such circumstances could constitute substantial interference with a Landlord’s rights and interests provided there is evidence of a current need to implement pest control and physical obstruction by the Tenant. However, those were not the circumstances in the present case. Instead, the Tenant complied with the N5 notice to allow inspection and the inspection revealed that there was no pest infestation in her unit. Because she had complied with the N5 notice within 7 days, that notice was void. There was no evidence of any subsequent request to inspect and no allegation of pest infestation in her unit. Furthermore, there was no evidence upon which the Board could find or infer that the Tenant would not in the future admit entry notwithstanding her admittedly annoying actions. In any event, the Landlord retained the legal right of entry. In short, there was no evidence before the Board that could support those findings. In reaching that determination, the Board therefore committed an error in law.
Incorrect Information Regarding How to Void the Notice
1. The Landlord’s main complaints in this application were contained in an N5 notice to terminate the tenancy for substantial interference with reasonable enjoyment. The Tenant brought a preliminary motion that I find the N5 to be invalid because it contained incorrect information regarding how it could be voided. I granted the motion.
2. The rental unit is a condo unit. The N5 set out various instances in which the Tenant is alleged to have made excessive noise and parked in the wrong parking spot. The N5 also stated that because the condo management company received complaints about the Tenant’s behaviour, the Landlord was charged condo fees totaling $1,141.30.
3. The Landlord also wrote, at various points in the N5, that it could be voided by the Tenant taking various steps to reduce noise, taking various steps to park in different ways, and paying the Landlord $1,141.30.
4. The problem with the N5 is that the Landlord did not have the authority to decide how it could be voided. The right to void an N5 comes from section 64 of the Residential Tenancies Act, 2006 (the ‘RTA’):
- 64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.
- (2) A notice of termination under subsection (1) shall,
- (a) provide a termination date not earlier than the 20th day after the notice is given;
- (b) set out the grounds for termination; and
- (c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.
- (3) The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.
5. In other words, to void the notice, the Tenant must “stop the conduct or activity” or “correct the omission” that substantially interfered with the Landlord’s rights. What steps the Tenant takes to stop the conduct is up to the Tenant. The Board’s N5 form states that “you have 7 days to stop the activities or correct the behaviour described,” and that is all the information about voiding that needs to be on the notice.
7. Most seriously, the N5 also stated that the Tenant had to pay the Landlord $1,141.30 to void it. That, too, was not true. The Landlord had no authority to demand that the Tenant reimburse him for condo fees. Subsection 134(1)(a) of the RTA prohibits the Landlord from collecting, requiring, or attempting to collect any penalty or like amount of money not authorized by the RTA. There is no authority in the RTA for the Landlord to collect condo fees, even if the fees were assessed because of the Tenant’s conduct.
8. In short, the N5 fundamentally misstated the law by telling the Tenant that to void it, he had to take specific steps, some of which he did not actually have to take. The N5 did not comply with subsection 64(2)(c). Instead of requiring the Tenant to cease the conduct that substantially interfered with the Landlord’s reasonable enjoyment, it required him to do things that he did not have to do.
9. The Landlord argues that, even if the offending portions of the N5 are invalid, the rest of the N5 should still be valid. I do not agree. The N5 fundamentally misstated the law regarding how it could be voided. The Tenant, on receiving the notice, cannot be expected to have known that he could void it by complying with some parts of it and ignoring the rest. The notice was misleading in its entirety.
10. Since no valid N5 has been served, the portion of the Landlord’s claim respecting substantial interference is dismissed.
Void for Vagueness
 The tenants raise one ground of appeal in this proceeding that seeks to overturn the order of the Landlord and Tenant Board (the “Board”) dated January 24, 2018, which terminated their tenancy and ordered them evicted. They raise a technical argument that the Board had no jurisdiction, because the N5 form that commenced the proceedings was void on its face for non-compliance with the legislation.
 Sections 43 and 62 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) set out the notice requirements in a proceeding such as this, where the landlord seeks to terminate a tenancy because the tenant has wilfully or negligently caused undue damage to the rental property.
 The tenants argue that the N5 form was defective because under Reason 2 (willful or negligent damage), the landlord failed to fill in the bullet beside the statement that the tenants had 7 days to correct the damage by paying amounts to repair or replace the damaged property. However, the landlord had filled in the amounts payable to repair or replace the property.
 The tenants also argue that the Notice was defective because it specified 2 amounts: one for repairs and one for replacement. The tenants argue that the landlord must specify one or the other.
 The Board rejected the tenants’ preliminary objection, finding that a reasonable person would have known they had 7 days to void the N5 Notice, because the amounts payable to void the Notice were filled in on the form. There was no evidence from the tenants that they were confused by the form.
 A request for reconsideration was rejected by the Board.
 An appeal lies to this Court pursuant to section 210 (1) of the Act only on a question of law. The parties are agreed that the standard of review is reasonableness.
 The tenants have identified no error of law in this appeal. The Board reasonably concluded that the N5 form was compliant with the Act, because a reasonable person would understand from reading the form that he or she had 7 days to act to repair or pay for the damage.
 The purpose of the Notice is to communicate to the tenants the case to be met and the options to void the Notice. When this Notice is read as a whole, including the appendices and page 3 of the form advising the tenant what to do to avoid eviction, it conveyed the necessary information to the tenants and was compliant with the Act.
 Moreover, s. 62(2)(c) does not require the landlord to choose between two options: pay to repair or pay to replace. It is in the tenants’ interest to be given all the options: do the repairs themselves, or pay for the repairs, or pay for replacement. Here the landlord had provided detailed information about the tenants’ options to remedy the situation.
 In our view the Board’s decision was reasonable. Therefore, the appeal is dismissed. No party seeks costs.
10. The Landlord’s application alleging substantial interference with reasonable enjoyment must be dismissed because the Landlord’s notices of termination fail to meet the mandatory requirements of the Act.
12. The notices and certificates of service filed by the application indicate the Landlord served the Tenant with a notice of termination pursuant to s. 64 of the Act on March 13, 2017. So the seven day voiding period runs from March 13, 2017 to March 20, 2017. But the second notice filed with the application pursuant to s. 68 of the Act concerns an incident that occurred on March 19, 2017 which is within the 7 day voiding period. So based on the Landlord’s documents alone she cannot assert the Tenant rendered the first notice void. However, the date of termination on the first notice is such that the Landlord can amend her application to be based on the first N5 notice. I have amended the application accordingly on my own motion.
13. The difficulty that arises with the Landlord’s first notice of termination is that it is vague and lacking in particulars. All it says is:
- I got many complain from other tenants about Apt 1 always screaming, yelling swearing and he go to other door, scary some body, too loud music too smocking with drinking, it is really interfered to other tenants. [Quoted as written.]
14. The reason this is a problem is because subsection 43(2) of the Act says a notice of termination given by a landlord to a tenant must also set out the reasons and details for the notice.
15. In order to assist the parties to understand the issue, I provided them both with a copy of the Divisional Court’s decision in Ball v. Metro Capital Property, (2002) O.J. No. 5931. I then stood the hearing down so the parties could provide submissions.
16. Ball v. Metro Capital Property stands for the proposition that the kinds of particulars that should be contained in a notice which is about a tenant’s behaviour should include “dates and times of the alleged offensive conduct together with a detailed description of the alleged conduct engaged in by the tenant”. The notice here clearly does not meet this requirement.
17. The Landlord argues that she brought with her to the hearing all of the evidence the Board could require including details such as dates and times.
18. The problem with this argument is that a notice of termination cannot be amended and the rationale for the rule in Ball v. Metro Capital Property is that the Tenant has the right to know the allegations in advance of the hearing so he can prepare to defend the application. In addition, a notice like this one is voidable so sufficient particulars are required so a tenant knows what he or she must do to void the notice; absent sufficient detail the tenant functionally loses the right to void the notice.
19. Given the above, I find that the notice of termination served on the Tenant pursuant to s. 64 of the Act fails to meet the mandatory requirements of the Act. The Landlord’s application based on this notice must therefore be dismissed.
- 4. As I stated at the hearing, the Landlord’s Form N5 for substantial interference reasonable enjoyment and or lawful rights, privileges or interests is defective because it was unclear whether the Tenant had to void the N5.
- 5. However, the Form N5 is in substantial compliance with respect to the allegation of wilful or negligent damage because the Tenant knew or ought to have known that the N5 notice could be voided if he paid the amount to replace the damaged property, as the amount was reflected on the Form N5.
Multiple Notice's Cause Confusion
1. The Tenant made a preliminary motion to dismiss the Landlords’ application.
2. It is the Tenant’s position that because of confusion resulting from the Landlords having served the Tenant with N5 and N6 and N7 notices at the same time with the same termination date claiming in all three the same two reasons for ending the tenancy and evicting the Tenant, namely, for having removed the baseboard heaters and for fire code violations.
3. It is undisputed that an additional allegation in the N5 notice (not made part of the N6 and N7) regarding the Tenant obstructing access to the parking lot was corrected by the Tenant within the 7 day period following the service of the N5 notice. Therefore the allegation in N5 respecting parking has been voided in accordance with section 64(3) of the Residential Tenancies Act, 2006 (Act).
4. The only other issue in the N5 that is also not included in the N6 and N7 is the allegation that the Tenant interfered with the Landlords’ attempts to access the rental unit to perform maintenance. I find that this allegation has also been voided because it is not disputed that the Landlord did not seek further access to the rental unit within the 7 day voiding period.
12. Undoubtedly, a landlord is entitled to serve more than one notice of termination respecting the same conduct or event. Indeed, the Board’s Interpretation Guideline #10 states in part:
- Sometimes the same event may give rise to more than one ground for termination, as a result the landlord may serve more than one Notice of Termination citing the same event as the reason for both of the Notices….
Although the landlord is permitted to give Notices of Termination with different termination dates, confusion to the tenant should be minimized. The Notices may be challenged on the basis that they are confusing and therefore defective. In the worst case, an application may be dismissed.
13. However, as suggested in the Guideline, this does not mean a landlord can do so in a way that causes confusion. That is exactly what has occurred in the present case where the Tenant is being told he can and cannot avoid eviction for the same impugned conduct. This contradictory direction would likely confuse any reasonable tenant.
14. Further, I cannot see how it makes any difference in what way the Tenant is able to void the N5 notice, such as paying for the repairs within the 7-day period, when that notice is being compared with the N6 and N7 notices with respect to whether the combination of all three when served together creates confusion.
15. For these reasons I find the combination of voidable and non-voidable notices served on the Tenant for the same alleged conduct is confusing and causes all the notices before me to be defective. I cannot consider the Landlord’s application to terminate the tenancy in the absence of valid notices of termination.
Unlawful Use of Common Space (Storage)
Storage in the furnace room
4. The Landlord claims that the Tenants are storing some of their belongings in the furnace room, and that they are not permitted to do so under the lease. He states that this obstructs access to the furnace for service. He also states that they are keeping a stove in the common areas of the basement outside their rental unit.
5. The Tenants state that they store a bicycle and some empty boxes in the furnace room, that they have done so without objection since they moved into the rental unit, and that the upstairs tenants also store items in the furnace room. They also state that the additional stove in the common area is there because the stove provided by the Landlord does not work properly.
6. The Landlord states that the upstairs tenants have the right under their tenancy agreement to store items in a corner of the furnace room. He also denies that any issues regarding the functioning of the stove provided for use by the Tenants have been raised with him.
7. I am satisfied that the tenancy agreement does not entitle the Tenants to store their belongings in the furnace room, or to store appliances in the common areas of the basement, and that, by doing so, the interfering with a lawful right, privilege or interest of the Landlord.
It is ordered that:
- 1. The Tenants shall refrain from parking more than one vehicle on the driveway of the residential complex without the consent of the Landlord.
- 2. The Tenants shall refrain from storing their belongings in the furnace room or other areas for which they have not been granted the right to store their belongings without the consent of the Landlord.
- 3. If the Tenants fail to comply with paragraphs 1 or 2 above, the Landlord may apply under section 78 of the Act, within 30 days of the breach, without notice to the Tenants, for an order terminating the tenancy and evicting the Tenants.
- 4. The Tenants shall pay to the Landlord $190.00 for the cost of filing the application.
- 5. If the Tenants do not pay the Landlord the full amount owing on or before January 29, 2018, they will start to owe interest. This will be simple interest calculated from January 30, 2018 at 3.00% annually on the balance outstanding.
Landlord Not Correctly Named on the Notice
- 2. The Landlord requested to amend the application to correct the name of the corporation in the style of cause. The Tenants did not dispute that the Landlord was incorrectly named in the application and in the notice of termination but they argued that the incorrectly named landlord rendered the notice of termination void. However, as I explained at the hearing, section 43 of the Residential Tenancies Act, 2006 the “Act”), which sets out the essential elements of a notice of termination, does not specifically state that a landlord must be correctly named in a notice. Therefore, I find that the landlord’s failure to name itself correctly in the notice does not render it defective and void.
- 3. The Tenants also raised the recent amendment to section 48 of the Act, which prevents a corporation from filing a landlord’s own use application. However, that amendment came into effect on May 30, 2017, several months after the Landlord’s application was filed and it does not apply to this application. In the present case, the Landlord corporation owns the residential complex. It filed an application seeking vacant possession of the rental unit so the son of the sole owner of the corporation can move into the unit. I am satisfied that the individual owner, CB, is the directing mind of the corporation. As such, I am satisfied that CB meets the definition of “landlord” in the Act because he is also an owner of the rental unit. Accordingly, CB will be referred to as the Landlord in the remainder of this order. This approach is consistent with the court’s decision in Slapsys (1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676 (CanLII).
Moving Out According to the Notice
5. The Tenant moved out of the rental unit pursuant to such Form N-5 on November 5, 2011. In this application the Tenant requests return of a pro-rated portion of the November, 2011 rent.
6. The Landlord takes the position that the Tenant was wrong to move out in accordance with that Notice. The Landlord’s view is that the agreement to terminate takes precedence over the Landlord’s own and subsequent Form N-5 Notice. The Board cannot agree. If the Landlord intended to rely upon the original N-9 Notice and the agreement to terminate, then the Landlord ought not to have breached that agreement by serving a new Form N-5.
8. The Tenant was entitled to accept the Landlord’s breach and to move out of the rental unit on or before November 10, 2012. It was incumbent upon the Landlord not to serve a Form N-5 Notice to Terminate if it did not mean it.
12. This argument is incorrect for two reasons. First, there is no evidence that the Landlord had disclosed to the Tenant, on or before November 17, 2012, its intention to withhold the Tenant’s overpayment referable to the period after November 5, 2012. Therefore, the Tenant’s claimed had not crystallized. Secondly, that was a Landlord’s application for compensation for damage to the residential complex. The Tenant is not legally obligated to raise a claim of set-off for amounts otherwise in dispute between the parties in the context of any particular Landlord application and does not waive any rights by declining to do so. There is no issue estoppel here nor, of course, is the Tenant’s present claim res judicata.
 The appellants submit that the Board erred in law by failing to apply s. 37(5) of the Act and failing to find that the termination provisions in the Colonnade tenancy agreements were void as contrary to that section. In addition, the appellants argue that in accordance with s. 4(1) of the Act, any contractual provision that is inconsistent with the Act is void.
 I am unable to conclude that the member or the reviewing member erred in law in their approach to this issue. Section 37(5) is designed to protect the security of tenure of tenants by ensuring that tenants cannot be induced to contract out of their rights at the time when they enter into a tenancy agreement. Specifically, having regard to the fact that landlords and tenants are often not in an equal bargaining position when leases are negotiated, s. 37(5) precludes landlords from extracting tenancy termination agreements at the time leases are signed. (See Clandfield v. Queen’s University (Apartment and Housing Services) (2001), 2001 CanLII 4969 (ON CA), 54 O.R. (3d) 475, 200 D.L.R. (4th) 475 (C.A.), which dealt with an identical provision in the predecessor Tenant Protection Act, 1997, S.O. 1997, c. 24.)
 But this case is quite different. The landlord and tenant relationship between the parties in this case pre-existed the tenancy agreement. It was suspended by the redevelopment of the Heathview, but the tenants had the right to return to the premises upon completion and continue the relationship. The landlord gratuitously offered to continue the landlord and tenant relationship in alternative accommodation at the Colonnade in the interim, at a reduced rent, and the tenants accepted the offer. The agreement to terminate the temporary tenancy when the redevelopment was complete was reached as part of this overall agreement, and not separately at the time the Colonnade tenancy agreement was entered into or as a condition of entering into it. The Colonnade tenancy agreement was not a stand-alone agreement. It cannot be interpreted in isolation from the overall relationship of the parties.