Notice Law - Substantial Compliance (LTB)
- 1 Residential Tenancies Act, 2006, S.O. 2006, c. 17
- 2 TSL-75466-16 (Re), 2016 CanLII 71279 (ON LTB)
- 3 O’Shanter Development v. Bernstein, 2018 ONSC 557 (CanLII)
- 4 TSL-03635 (Re), 2007 CanLII 75976 (ON LTB)
- 5 CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB)
- 6 CET-28082-12 (Re), 2013 CanLII 4275 (ON LTB)
212 Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient. 2006, c. 17, s. 212.
6. The applicable statutory notice provisions above are mandatory in nature and require strict compliance (Re Bianchi et al. and Aguanno et al., 1983 CanLII 1967 (ON SC)). In Re Bianchi, supra, the termination date was not at the end of the term as mandatorily required by the Act, so the Divisional Court found the notice defective. Here, the identification of the rental unit is, similarly, a mandatory requirement of the Act.
7. I considered s. 212 of the Act, which provides that substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient. However, in my opinion, while the application of s. 212 to situations of non-compliance with non-mandatory requirements of the Act may be appropriate, a parallel application of that section to mandatory legislative requirements amounts to an error in law, could not have been an exercise contemplated by the drafters of the legislation and would lead to absurd results. For example, in the instant case, given that at the time when the N4 notice was served, the unit was not designated as “2A”, the application of s. 212 would allow the Landlord to bring the unit into harmony with the N4 notice after the notice was served.
 The Board identified that the central issue to be determined in the case was whether the Landlord’s notices of rent increase comply with the requirements of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA). The Board noted that the Landlord’s representative agreed at the hearing that, if the Board determines that the Landlord’s notices of rent increase are defective, the Landlord’s applications to terminate the tenancy and evict the Tenant for non-payment of rent must be dismissed.
 A primary issue of estoppel was raised at the hearing by the Landlord. In his submissions to the Board at the hearing, counsel for the Landlord, stated the following, in part:
- So clearly, if the tenants sought to challenge the validity of the rents charged, the time to do it was in the context of the AGI, if you accept the reasoning in Mascan and Ponzi and then if you apply the principles in Mascan and Ponzi, it’s my submission that it would be an abuse of process to allow the tenants after having consented to the increases that were set out in the Notices of Rent Increase subject to adjustment to allow them now to challenge the validity of those Notices of Rent Increase, and those rent increases were essentially established as a result of the Board’s processes, and the Board’s reliance on the rents that were set out in the applications filed with the Board.
 In response, the Tenant submitted that estoppel was not available in this case and in support of this position referred the Board to the decision in Price v. Turnbull's Grove Inc., 2007 ONCA 408, (2007), O.R. (3d) 641, which held that a rent increase that is void under the Act is of no force and effect. The Court stated at para. 37, “It is as if the increase never occurred.”
- Issue 3: Did the Board make an unreasonable determination that the NORIs were void on the basis that the content of the prepaid rent attachment to the form was “misleading” or “confusing”?
- The Landlord argues that the Board imported a subjective inquiry into its consideration of s.212 of the RTA and s. 84 of the Legislation Act, and as such the Board’s decision is unreasonable. However, the Board dealt with the issue relating to substantial compliance at paragraphs 12 to 15 of the decision. The Board stated:
- The Landlord’s representative submitted that the Landlord’s addendum does not render the Landlord’s NORI void, because the NORI substantially complies with the Act’s requirements. Section 212 of the Act states that forms that substantially comply with the Act’s requirements “respecting the contents of forms, notices or documents is sufficient.”
- The parties did not submit at the hearing case law from the Divisional Court, or from another binding authority, on the issue of substantial compliance. The Board, however, considered the issue of substantial compliance with its forms in TSL-03635, issued on September 24, 2007. In that decision, the Board quoted from TNL-52825-RV, in which the Board held that the landlord who had altered a NORI “should be held to an even higher standard to correctly state the law when he appends an addendum to an ORHT-approved form and uses the same font and format used by the ORHT.” In TNL-52825-RV, the Board determined that the addendum the landlord made to a NORI failed to correctly state the law. The Board concluded that the landlord’s NORI was void because of the addendum.
- In TSL-052280, issued on September 19, 2003, the Ontario Rental Housing Tribunal (as the Board was then called) found that a misleading addendum to the landlord’s NORI rendered the NORI void. The Tribunal in that case found that information in the landlord’s addendum “would mislead most tenants”.
- The principle that emerges from the Board’s decisions on substantial compliance with the Act’s requirements for forms and other documents, is that landlords must exercise great care when adding an addendum to, or otherwise altering, a Board approved form. Any information that does not comply with the Act may be found to be misleading, and may render the altered form invalid.
 I am further of the view that on the facts of this case the Board should have exercised its discretion to apply issue estoppel. Contrary to the Board’s statement that “prohibiting the Tenant from raising the validity of the Landlord’s NORIs at the hearing could lead to an absurd result, if the Board were to uphold and legitimize an invalid rent increase”, the opposite is true. The rent increase was not invalid. It was implemented by the Orders of the Board. The absurd result arises in permitting the Tenant to challenge the validity of the NORIs in circumstances where she has agreed to Orders of the Board implementing the rent increase.
 For the above reasons therefore, based on the facts of this case, I conclude that the Board erred in failing to apply estoppel to the Tenant’s defence to the Landlord’s application that the rent increases were void based on defective NORIs.
4. Subsection 116(3) of the Act and subsection 127(3) of the TPA provide that a NORI “shall be in form approved by the Board.” Section 212 of the Act and section 198 of the TPA also provide that “substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.”
6. In the first of the Tenant’s cases, Review Order No. TNL-52825-RV, the landlord relied on the tenants’ execution of an identical NORI to the one before me to argue that the tenants’ 60-day notice of termination was invalid. In his decision, Member Lee relied on a Divisional Court case neither party provided at the hearing to find that the addendum was misleading and that a form should “enunciate all available options to the tenant.” Additionally Member Lee found that “a landlord should be held to an even higher standard to correctly state the law when he appends an addendum to an ORHT-approved form and uses the same font and format used by the ORHT. Whether or not by intention, the impact of such usage induces a belief in the mind of the reader that the form and its contents have been sanctions by the ORHT. Clearly, in the instant case, the law had been misstated.” He proceeded to find the NORI void as a lease renewal.
10. For the same reasons as given by previous Members Lee and Suraski I find the NORIs void. As a result, and as previously found in TSL-52280, I find that the Landlord cannot take the rent increase that is contained in a form that is void. The form does not substantially comply with the form approved by the Tribunal and the Board because it contains additions that contradict and confuse the approved form. The Landlord’s application for rent arrears based on these void NORIs must therefore be dismissed.
2. The Tenant did not receive an N12 notice of termination which is the relevant Board form when a Landlord seeks possession of the unit for their own use. Instead, the Landlord’s Agent sent the Tenant an email dated April 12, 2017 informing the Tenant that this was “a formal 2 months’ notice to terminate the month to month lease agreement…effective June 14, 2017 as landlord requires vacant possession of the property”. The Tenant submitted this email into evidence. VP testified that the Landlord spoke with him by telephone and told him that his son is moving into the unit and he needed possession of the premises by a certain date.
3. Section 48 of the Act permits a landlord to give notice to terminate the tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by the landlord, landlord’s spouse, a child or parent of the landlord or landlord’s spouse or a person who provides or will provide care services.
4. Section 212 of the Act states that substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient.
5. Section 202 requires the Board to ascertain the real substance of all transactions and activities relating to a residential complex or rental unit and the good faith of the participants and in doing so, may disregard the outward form of a transaction and may have regard to the pattern of activities relating to the residential complex or residential unit.
6. The email notice of termination from the Landlord substantially complies with section 48. The notice informs the Tenant that it is a sixty day notice for the monthly tenancy and the reason for the notice was that the Landlord required possession. Although the email did not state that the possession was for the Landlord’s son, this detail was provided through a phone conversation with the Landlord. Although the termination date in the notice is not the last date of a rental period, subsection 57(1)(a) does not state that the notice of termination must be valid but rather that it is given under section 48 in bad faith.
2. Subsection 57(1) (a) of the Act sets out a three part test. In order to be successful in this T5 application the Tenants must establish all three of the requirements of subsection 57(1)(a). First, that the Landlord gave a notice of termination under section 48 of the Act (an N12 notice) in bad faith. Second, that the Tenants vacated the rental unit as a result of the N12 notice or a Board order based on the N12 notice. Third, that the Landlord did not move into the rental unit within a reasonable time after the Tenants vacated.
3. The Tenants did not establish the first and second requirements of subsection 57(1)(a) of the Act. It was not necessary to consider the third requirement at the hearing since the first two requirements were not met.
4. There is no dispute that the Landlord did not serve the Tenants an N12 notice of termination. The Landlord sent the Tenants an email in September 2011 asking the Tenants to “use the following two months to start looking for another place”.
5. The Landlord’s email is clearly not an N12 notice to terminate the tenancy. It is not even a valid notice to terminate the tenancy. It is not in a form approved by the Board as required by subsection 43(1) of the Act.
6. However, in some circumstances, it is possible to find that a notice that is not in the approved form substantially complies with the requirements of the Act. This is pursuant to section 212 of the Act. This substantial compliance does not apply to the email.
7. Subsection 43(1) of the Act sets out the mandatory requirements of a notice to terminate a tenancy. The notice must identify the rental unit. The Landlord’s email does not identify the rental unit. It must be signed by the person giving the notice. The Landlord’s email is not signed. Therefore, the email does not substantially comply with the requirements of the Act.
8. As a result, the first requirement of subsection 57 (1) (a) of the Act has not been met. The Landlord did not give the Tenants an N12 notice of termination or any valid notice of termination.
9. Furthermore, the Tenants did not vacate the rental unit as a result of a valid notice to terminate the tenancy.
10. The Tenants vacated the rental unit on January 31, 2012, over four months after the Landlord’s email was received. This is undisputed.
11. The Tenants vacated the unit pursuant to prior Board order CEL-18598-11, which terminated the tenancy and required the Tenants to vacate the unit on or before December 13, 2011. That order was based on the Landlord’s L3 application since the Landlord and the Tenants entered into an agreement to terminate the tenancy as of November 30, 2011.
12. The Tenants filed a motion to set aside that order. The motion was denied. The Tenants then filed a request to review that order. The review request was denied in January 2012. The Tenants vacated the rental unit after that review was denied.
13. As a result, the second requirement of subsection 57 (1) (a) of the Act has also not been met. The Tenants did not vacate the rental unit as a result of a notice of termination or an order based on the notice.