Notice Law - N7 (Serious Impairment of Safety)

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

66 (1) A landlord may give a tenant notice of termination of the tenancy if,

(a) an act or omission of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person; and

(b) the act or omission occurs in the residential complex.

(2) A notice of termination under this section shall provide a termination date not earlier than the 10th day after the notice is given and shall set out the grounds for termination.

Furr v. Courtland Mews Cooperative Housing Inc., 2020 ONSC 1175 (CanLII)

[16] The appellant maintains that the Vice-Chair, although citing the language of s. 94.2(1), did not apply the test as interpreted by the Board in other cases. The Vice-Chair’s formulation did not, he argues, include the necessary elements of seriousness and gravity and did not address the question of whether there was evidence of an “intention” to act on any verbal threats.

[17] I do not agree with this argument. The Vice-Chair’s formulation of the test falls well within the range of the jurisprudence cited. In 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264, the Divisional Court made it clear that serious impairment of safety includes both actual impairment and a real risk of impairment. In other cases, the Board has held that it is not necessary that anyone has actually been hurt or injured and that a serious impairment of safety may include:

(i) the potential for an outcome that has the risk of a substantial negative effect on a person’s well-being;

(ii) a foreseeable act or omission that could result in or may result in a serious impairment to safety; and

(iii) extremely loud and intense arguments could easily result in violence and would be a safety hazard.

[18] There was no error of law in the Vice-Chair’s formulation of the applicable legal test. The appellant’s real complaint is with the Vic-Chair’s application of this test to the facts. This, however, subject to the next ground of appeal, is not a question of law but a question of mixed fact and law and is, therefore, not subject to appeal under the RTA.

2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 (CanLII)

The Tenants’ Main Ground of Appeal

[11] The tenants argue that the board erred in relying on the fact that their cats were not vaccinated as a ground for eviction where (a) lack of vaccination of the cats was not listed as a ground relied upon in the landlord’s N-7 Notice; and (b) there was no fair notice that vaccination was in issue.

[12] An N-7 notice process is reserved for requests for eviction under serious cases like a breach of s. 66 (1) (a) of the statute. That subsection allows for the eviction of a tenant whose conduct “seriously impairs or has seriously impaired the safety of any person.” The notice period is short and the statute does not allow for a cure period. Case law has reserved resort to s. 66 and the N-7 process therefore to cases involving “weighty, grave, or momentous conduct” involving the actual impairment of safety or a real risk of impairment of safety. LTB File No. NOL-08606-12 (9 July 2012; Stevens) 2012 CanLII 46749 at para 15.

[14] The law is clear that only a ground of eviction set out in a notice given under the statute may form the basis of an eviction order. It is an error of law to evict a tenant on a ground that is not set out in the notice document. Oshawa Housing Authority v. Maule, 1979 CarswellOnt 2708 (Div. Ct.) at para. 6; DU Chapter House Ltd. v [Tenant], (3 December 1998; Ittlemen), File No. TSL-03969 (ORHT) [CRO No. HOU-D-00691] at para. 7.

[30] Under s. 76 of the statute, there could not be an eviction unless the animals’ past behaviour interfered with tenants’ enjoyment, the animals caused allergies, or were inherently dangerous. In LTB File No. TSL-56891-14 (21 September 2015; Carey), 2015 CanLII 77275 the board held that a tenant’s hoarding that resulted in a fire hazard notice amounted to a risk of serious harm to others. That strikes me as an analogous situation. But, the board also found that the infestation of cockroaches that had arisen due to the tenant’s hoarding was not a sufficient basis to evict absent evidence of someone being allergic to cockroaches. Here, the tenants argue that, like cockroaches, cats are not inherently dangerous. However, these are feral cats kept in extremely large numbers. The law requires all cats under a person’s care or custody to be immunized to protect the safety of people and other animals from a serious disease that is a recognized public health hazard. The board found that these facts met the statutory standard.

[33] Under the deferential standard to the interpretation by the board of its home statute, in my view, within the range of outcomes that was open to the board, one option was a finding that the tenants’ behaviour in keeping unvaccinated feral cats in unlawfully large numbers in the circumstances proven before the board posed a serious risk to the safety of others that met the tests for eviction. That is what the board found. In my opinion, it made no error of law in doing so.

TEL-02720-19 (Re), 2019 CanLII 89718 (ON LTB)

1. The Landlord served the Tenant with a notice of termination pursuant to section 61 of the Residential Tenancies Act, 2006 (the 'Act') claiming an illegal act by the Tenant because of a stabbing.

2. The Landlord’s evidence is a news article from the company which states a male was arrested due to a stabbing outside of a home on the same street as the Tenant’s rental unit. The Landlord’s representative states the rental unit had police tape around it; however, provided no further evidence to substantiate the Landlord’s claim.

3. Given the vague description of the stabbing with no evidence to say that any of the parties involved had anything to do with the Tenant or that it actually was on the residential complex, I find the Landlord’s evidence to be insufficient.

4. As a result, the Landlord’s application with respect to illegal act is dismissed.

Harris v. Toronto Community Housing Corporation, 2009 CanLII 34989 (ON SCDC)

[5] On May 18, 2006, several combined police forces from Southern Ontario executed search warrants for the residences of the Tenants and many others after 6 to 8 months of investigation work. The investigation included more than 120,000 intercepted telephone calls, background investigations, surveillance evidence, photographs and other investigative means. Based on the information gathered through this extensive investigation, the police identified individuals and residences that were the subject of search warrants.

[6] In Ms. Mohamud’s household, the police officers found 11 grams of crack cocaine, two loaded 357 magnum guns, a loaded pistol-grip shotgun, with the serial number removed, and a MAC-11 semi-automatic weapon, which was later found to have been used in four other crimes. Ms. Mohamud’s son, a guest of her son, and another occupant were arrested and charged in relation to these seizures.

[7] In the Harris household, the police officers found drugs, guns and ammunition, which included a fully loaded handgun, newspaper articles relating to the Jamestown Cripps Gang, two scales, 5 cell phones, and a large amount of cash. Ms. Harris’ son was arrested and charged in relation to these seizures.

[8] In the Whyte household, the police officers found bullets and shotgun shells, a number of drug scales, dime bags of marijuana, 5 bullets concealed in a bandana of a type worn by members of the Cripps gang, $2000 in cash, a debt list, 12 Ecstasy pills, a loaded 9 mm handgun, and a box for the handgun together with a user’s manual. Ms. Whyte’s son, who was listed as an occupant, and a guest were arrested and charged in relation to these seizures.

[17] These principles of tort law have no application in the interpretation and application of s. 65(1) of the TPA which is a remedial statutory provision governing residential tenancies. Section 65(1) should be interpreted in accordance with its grammatical and ordinary sense, harmoniously with the scheme and object of the TPA and in light of the remedial purpose of the legislation (Rizzo v Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), (1998) 1 S.C.R. 27 at paragraphs 21-22). The section permits the landlord to give the tenant a notice of termination if an act or omission by the tenant or an occupant of a rental unit or a person permitted in the residential complex by the tenant seriously impairs or has seriously impaired the safety of any person and that such act or omission occurs in the residential complex.

[18] The section does not incorporate a fault element as do regulatory offences which allow a due diligence defence. The alleged act or omission of the tenant, occupant or the person permitted in the residential complex underpinning the notice need not be morally blameworthy as the section could apply to a tenant suffering from dementia whose omission seriously impaired the safety of other tenants in the residential complex or could seriously impair the safety of other persons in the future.

[19] In contrast to s. 65(1), other provisions of the TPA specifically include a fault element. Under s. 62,the landlord may give notice of termination for an illegal act in the rental unit or residential complex, but only where the tenant commits the illegal act or permits another person to do so.

[20] Pursuant to s. 63(1), the landlord may give notice of termination if the tenant or a person whom the tenant permits in the residential complex willfully or negligently causes undue damage to the rental unit or the residential complex.

[21] Moreover, s. 65(2) provides only a ten day notice period and the tenant is given no opportunity to correct the situation. The wording of s. 65 suggests that the Legislature intended to create stricter provisions for acts that have a serious impact on the safety of others in the residential complex.

[22] While this reading of s. 65(1) may seem harsh to the tenant in some circumstances, s. 65(1) must be also read in conjunction with s. 83 of the TPA, which grants the Board the authority to refuse to grant an application for an eviction “unless satisfied, having regard to all the circumstances, that it would be unfair to refuse” or may “order that the enforcement of the eviction be postponed for a period of time” as was done by the Board in this case.

[23] In my view, s. 65(1) does not incorporate a due diligence component or incorporate the principles of strict liability of the law of torts for the above reasons.