The impact of O Reg 73/20 on Notices Issued under the Residential Tenancies Act, 2006

Overview

This article attempts to address the question,

Will a Notice given under the Residential Tenancies Act, 2006 ("RTA") be considered valid notice where:

(1) a Notice of Termination was served prior to March 16, 2020 with a termination date that was also prior to March 16, 2020 BUT has not yet been filled as part of an application before the board.

(2) A Notice of Termination was served prior to March 16, 2020 with a termination date that falls on or after March 16, 2020.

(3) A Notice of Termination was served on or after March 16, 2020.

A State of Emergency

A State of Emergency was declared pursuant to Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 at 7:30 a.m. Toronto time pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act (the “Act”);

The Order in Counsel reads:

And Whereas the criteria set out in subsection 7.1 (2) of the Act have been satisfied;

Now Therefore, an Order is made pursuant to subsection 7.1 (2) of the Act, the terms of which Order are the following:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

Notice Provision under the RTA

48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by, (...)

(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 48 (2).

49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by, (...)

(3) The date for termination specified in a notice given under subsection (1) or (2) shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 49 (3).

50 (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,

(a) demolish it;

(b) convert it to use for a purpose other than residential premises; or

(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit. 2006, c. 17, s. 50 (1).

(2) The date for termination specified in the notice shall be at least 120 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 50 (2).

51 (1) If a part or all of a residential complex becomes subject to a registered declaration and description under the Condominium Act, 1998 or a predecessor of that Act on or after June 17, 1998, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of a rental unit when it became subject to the registered declaration and description. 2006, c. 17, s. 51 (1).

58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

1. The tenant has persistently failed to pay rent on the date it becomes due and payable.

2. The rental unit that is the subject of the tenancy agreement is a rental unit described in paragraph 1, 2, 3 or 4 of subsection 7 (1) and the tenant has ceased to meet the qualifications required for occupancy of the rental unit.

3. The tenant was an employee of an employer who provided the tenant with the rental unit during the tenant’s employment and the employment has terminated.

4. The tenancy arose by virtue of or collateral to an agreement of purchase and sale of a proposed unit within the meaning of the Condominium Act, 1998 in good faith and the agreement of purchase and sale has been terminated. 2006, c. 17, s. 58 (1).

(2) The date for termination specified in the notice shall be at least the number of days after the date the notice is given that is set out in section 44 and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 2006, c. 17, s. 58 (2).

59 (1) If a tenant fails to pay rent lawfully owing under a tenancy agreement, the landlord may give the tenant notice of termination of the tenancy effective not earlier than,

(a) the 7th day after the notice is given, in the case of a daily or weekly tenancy; and

(b) the 14th day after the notice is given, in all other cases. 2006, c. 17, s. 59 (1).

(2) The notice of termination shall set out the amount of rent due and shall specify that the tenant may avoid the termination of the tenancy by paying, on or before the termination date specified in the notice, the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement as at the date of payment by the tenant. 2006, c. 17, s. 59 (2).

(3) The notice of termination is void if, before the day the landlord applies to the Board for an order terminating the tenancy and evicting the tenant based on the notice, the tenant pays,

(a) the rent that is in arrears under the tenancy agreement; and

(b) the additional rent that would have been due under the tenancy agreement as at the date of payment by the tenant had notice of termination not been given. 2006, c. 17, s. 59 (3).

62 (1) A landlord may give a tenant notice of termination of the tenancy if the tenant, another occupant of the rental unit or a person whom the tenant permits in the residential complex wilfully or negligently causes undue damage to the rental unit or the residential complex. 2006, c. 17, s. 62 (1).

(2) A notice of termination under this section 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,

(i) to repair the damaged property or pay to the landlord the reasonable costs of repairing the damaged property, or

(ii) to replace the damaged property or pay to the landlord the reasonable costs of replacing the damaged property, if it is not reasonable to repair the damaged property. 2006, c. 17, s. 62 (2).

70 A landlord may not apply to the Board for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 62, 64 or 67 before the seven-day remedy period specified in the notice expires.

74 (1) A landlord may not apply to the Board under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 before the day following the termination date specified in the notice.

The COVID-19 Suspension Test

The core question(s) that must be answered is;

Did the legislator intend to suspend actions required to be taken pursuant to Notices of Termination served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 when issuing the Order in Council 518/2020 (Ontario Regulation 50/20). If the answer is found to be in the affirmative then, what are the consequences with respect to the Notices Served?

Here I review and consider the question, did the legislator intend to include Notices of Termination served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 when issuing the Order in Council 518/2020 (Ontario Regulation 50/20)?

Order in Council 518/2020 (Ontario Regulation 50/20) section 2 states:

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

Given the above I shall now consider three questions:

Question One

Is a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) ("termination sections") of the Residential Tenancies Act, 2006 ("the Act") a provision of any statute, regulation, or rule contemplated by Order in Council 518/2020 (Ontario Regulation 50/20)?

Question Two

Does a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 establish any period of time within which any step must be taken?

Question Three

Is a Notice of Termination ("Notice") served in accordance with section(s) 48 (1), 49 (1), 50 (1), 58 (1), 59 (1), 60 (1), 61 (1), 62 (1), 63 (1), 64 (1) 65 (1), 66 (1), 67 (1), or, 68 (1) of the Residential Tenancies Act, 2006 part of a proceeding in Ontario, or an intended proceeding?

Analysis

I would submit that the answer to question one is clear on its face, the above termination sections of the Act are clearly a provision of a statute and therefor were contemplated by Order in Council 518/2020 (Ontario Regulation 50/20).

With respect to question two, each of the respective termination sections' of the Act provide for notice periods that are required to be adhered to by the landlord. I also take special note of the inclusion of the word must. I would note that the term must denotes something that is not optional, and therefore required to bring about a desired effect, in this case to bring about any consequences stated on a Notice of Termination. I would submit that for Notice of Termination served in accordance with the termination sections of the Act there must be a required step to be taken by a party after the Notice is served.

Is the tenant required to take action in response to a Notice of Termination?

Section 59 of the RTA states:

59 (1) If a tenant fails to pay rent lawfully owing under a tenancy agreement, the landlord may give the tenant notice of termination of the tenancy effective not earlier than,

(a) the 7th day after the notice is given, in the case of a daily or weekly tenancy; and

(b) the 14th day after the notice is given, in all other cases. 2006, c. 17, s. 59 (1).

(2) The notice of termination shall set out the amount of rent due and shall specify that the tenant may avoid the termination of the tenancy by paying, on or before the termination date specified in the notice, the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement as at the date of payment by the tenant.

I would submit that if a tenant is served with a Notice of Non-Payment of Rent (Form N4) then the tenant is normally required to take steps as outlined in section 59(2) of the Act, specifically the tenant is normally required to pay the rent due as set out in the notice and any additional rent that has become due under the tenancy agreement by the termination date set out in the notice. If the tenant performs those required steps then the notice of termination is deemed void. I would further submit that any action that a tenant must take in order to comply with a Notice of Termination served upon them is classified as a step in a proceeding or intended proceeding as contemplated by Order in Council 518/2020 (Ontario Regulation 50/20).

However, given the classification of a Notice of Non-Payment of Rent assigned above I submit that the Order in Council 518/2020 (Ontario Regulation 50/20) has the effect of suspending the remedy period required to be taken by the tenant specified at section 59 (2) of the Act. Given that the remedy period is suspended by operation of the Order in Council 518/2020 (Ontario Regulation 50/20) the natural consequence is that the date of termination printed on the Notice of Termination will automatically be defective.

This idea of defective notice is supported in Braks v Bailey, 2013 CanLII 57485 (ON SCSM)

18. It has been held that the notice requirements under the Act are to be strictly interpreted, whether the notice is given by the landlord or the tenant: George V. Apartments Ltd. v. Cobb, (2002) O.J. No. 5918 (Div. Ct.). The requirement that notice be given in writing applies despite any agreement between the parties to the contrary or any waiver, by virtue of s. 3(1): see Nistap Development Corp. v. McIntyre, (2009) O.J. No. 2960 (Div. Ct.). Those appellate authorities are binding on this court.

If the notice provides incorrect information as to how to void the notice then the notice itself is void. In the case of TSL-95762-18 (Re), 2018 CanLII 111695 (ON LTB) which states:

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.

..."unless the court or tribunal orders otherwise..."

R. v. Handous, 2012 ABPC 49 (CanLII)

[17] A party who seeks to rely on s. 30 as the foundation for the admissibility of business records must comply with the notice provision contained in s. 30(7) which requires that notice be given to the opposing party 7 days before trial. If a party fails to give notice of an intention to invoke the provisions of s. 30 then the records will not be admissible into evidence “unless the court orders otherwise”.

[18] The purpose of the notice provision is to “alert the accused to the fact that the prosecution intends to produce a copy of the document at trial”: R. v. Cordes (1978), 1978 ALTASCAD 94 (CanLII), 40 C.C.C. (2d) 442 (Alta. C.A.). Proper notice is designed to prevent surprise and, in circumstances where the Crown is giving the notice, it is to ensure that the Accused is able to make full answer and defence.

Foot Notes

[1] The term served refers to a document that is deemed to be delivered pursuant to the Landlord and Tenant Board Rules.