Notice Law - N8 (Persistent Late Payment of Rent)

TSL-02314-19 (Re), 2019 CanLII 87054 (ON LTB)

10. The Tenant testified that prior to December, 2018, he paid his rent late because his pay periods did not align with the days when his rent was due. In other words, he paid the rent late because he was waiting to be paid by his employer.

11. The Tenant testified that in December, 2018, he lost his job. The Tenant testified that he has not paid any rent since then because he did not have any income. The Tenant testified that he only recently began receiving employment insurance because his employer did not provide a record of employment to complete his EI application.

12. The Tenant testified that he is now receiving $964.00 bi-weekly from employment insurance and he is able to pay the rent on time. The Tenant testified that his monthly expenses total $1,582.00, including rent ($904), internet ($60), cell phone ($58), transportation ($120), food for himself ($400) and dog food ($40).

13. The problem is that I am not satisfied on a balance of probabilities that the Tenant can afford the rent. The Tenant did not come to the hearing with any documentation to corroborate his evidence about his financial situation. The Tenant already owes the Landlord approximately $3,600.00 in arrears of rent and in his testimony the Tenant was unable to provide a concrete date when he will be able to pay the Landlord this amount.

TSL-49814-14 (Re), 2015 CanLII 15596 (ON LTB)

6. The Tenant submitted that the N8 notice was defective because the termination date was not the end of the term or a period of the tenancy.

13. I would disagree with the Tenant on this point. The fact that the Landlord included a month in error does not nullify the N8 notice. The issue that must be determined by the Board is whether the Tenant paid his rent on time and if not, would the number of times he failed to do so meet the threshold of being “persistently late” in paying his rent. With respect to the notice, the issue is whether or not it contains sufficient particulars that the Tenant knows the case to be met.

EAL-59006-16 (Re), 2016 CanLII 88069 (ON LTB)

9. In a letter to the Landlord dated July 8, 2016 (which was provided to the Board by the Landlord’s legal representative), the Tenant’s legal representative stated the Tenant suffers from unspecified disabilities which had contributed to his having difficulty providing the requisite documents to the Landlord for a subsidy to be maintained. The Tenant’s legal representative stated at the hearing that these disabilities had contributed to the situation in which the Tenant’s rent had been late during the months in question. The Landlord’s representatives did not deny that the Tenant suffers from disabilities.

16. Finally, I note that at the time the N8 was served, the Tenant had paid rent late twice over two months in a tenancy that was more than a decade old. This is not a persistent late payment of rent, it’s two late payments. Had the Ontario legislature wanted subsection 58(1) of the Act to be so restrictive as the Landlord requests that I interpret it, the legislators could have written that a landlord could serve a notice of termination where “a tenant has failed to pay rent on two or more occasions” or something similar. It did not. It used the term “persistently”, which in my view suggests a pattern of continued late payments for a time that is significant to the tenancy in question. In this tenancy, two – even three - months of late payment are not “persistent”.

17. On this basis, the N8 portion of the Landlord’s application will be dismissed.

EAL-59006-16 (Re), 2016 CanLII 88069 (ON LTB)

11. The Tenant’s legal representative argued at the hearing that in his view, two months of paying rent late (as indicated on the N8) did not create the basis for accusing the Tenant of persistently paying his rent late.

13. Ultimately, there were three reasons why I determined that any condition limiting or terminating the tenancy on the basis of the N8 would be inappropriate.

14. First, the Tenant has a disability, and I accept that his disability contributed to the situation in which the rent was paid late. I also observed at the hearing and from the documentation supplied that his legal representative is working with the Tenant to ensure that future rent is paid on time.

15. Second, I note that the N8 alleging persistently late payments of rent was served by the property manager just two days after the incident outlined in the N7, in which the same property manager wrote of her fear of the Tenant. This circumstantial evidence suggests that the “persistent late” allegations were lodged more as a result of the Tenant’s conduct with the property manager who then wanted him to move out of the residential complex, rather than because he had then been late paying his rent twice.

16. Finally, I note that at the time the N8 was served, the Tenant had paid rent late twice over two months in a tenancy that was more than a decade old. This is not a persistent late payment of rent, it’s two late payments. Had the Ontario legislature wanted subsection 58(1) of the Act to be so restrictive as the Landlord requests that I interpret it, the legislators could have written that a landlord could serve a notice of termination where “a tenant has failed to pay rent on two or more occasions” or something similar. It did not. It used the term “persistently”, which in my view suggests a pattern of continued late payments for a time that is significant to the tenancy in question. In this tenancy, two – even three - months of late payment are not “persistent”.

17. On this basis, the N8 portion of the Landlord’s application will be dismissed.

SWL-32001-19 (Re), 2019 CanLII 89687 (ON LTB)

2. The Landlord alleged that the Tenant has paid the rent late ten times in the last 12 months from April 2018 to March 2019 when the Tenant was served with the N8.

3. The Tenant stated that in 2014 when his wife was diagnosed with cancer, he spoke with the property manager who gave permission for him to pay the rent anytime he could.

4. In June 2016, he was served with an N8 for persistent late payment and when he spoke with the Landlord’s Legal Representative, TH, she refused to honour the permission he had received from the previous property manager who no longer worked for the Landlord. In July 2016, he was served with another N8 and by November 2016, the Landlord filed an application against him for persistent late payment although that application was subsequently dismissed.

5. Based on all the evidence, the Tenant claims to have received permission from a previous property manager allowing him to pay the rent late every month. However, the Landlord made it clear that was no longer acceptable when the Tenant was served with several notices in 2016 for persistent late payment. The Tenant not only paid the rent late ten times prior to March 2019, when the N8 was served, but he has also failed to pay the rent for the months of April, May, June and July 2019. Therefore, I find that the Tenant has persistently failed to pay the rent on the date it was due.