|
RTA - Non-Payment of Rent Termination
MORE CASES
Part 2
. Rosen v. Reed
In Rosen v. Reed (Div Court, 2023) the Divisional Court considers a non-payment of rent issue [for background see Chapter 7 - Non-Payment of Rent Terminations of the Guide], here whether the $35k monetary LTB limit [RTA s.207] applies to what I call 'catch-up-payments' [under RTA 74(4,11)] [see s.8: 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order'].
The specific issue is whether a 'catch-up payment' can be over $35k (the tenancy here was an unusually expensive one at $10k/month). These next quotes review the court's take on this issue (and thus the present authority on it), but this case been compelling for the range of issues that it attracts, so below I set out my comments:[1] This appeal concerns “pay to stay” orders made by the Landlord and Tenant Board (“LTB” or the “Board”). Are they subject to the monetary jurisdiction of the Board (currently $35,000) or may the Board order that all outstanding rent be paid to void an order terminating a tenancy if the arrears are more than $35,000?
[2] The short answer to this question is that the monetary jurisdiction of the Board does not constrain its discretion to impose terms to void an order terminating a tenancy. This has long been the law stated by this court and has been reaffirmed by this court as recently as 2023 (Galaxy Real Estate Core Ontario LP v. Kirpichova, 2023 ONSC 4356). No circumstances have arisen that would lead this court to depart from its prior decisions on this issue. In any event, this court’s prior decisions on this issue are correct in law and sound in principle. Therefore, for the reasons that follow, the appeal is dismissed.
....
Prior Jurisprudence on this Issue
[6] In a 2010, Ferrier J., sitting as a single judge of the Divisional Court, held as follows:To hold that the monetary cap applies to “the outstanding arrears of rent” would result in an absurdity. The defaulting tenant could continue ad infinitum to merely pay the monetary limit and continue in possession, all the while continuing in default. (Horstein v. Royal Bank of Canada, 2010 ONSC 3134, para. 13 (Div. Ct.))
This statement was in respect to s. 74(11) of the RTA, not s. 74(4), but the principle in issue is the same for the two subsections. [7] This court has concluded that the monetary jurisdiction of the LTB in the RTA limits the amount of an “order” that may be made for payment, and not the nominal value of all claims that may be adjudicated before the LTB: Ryshpan v. Bayview Summit, [2000] OJ No. 6054 (Div. Ct.).
[8] The LTB has gone both ways on this issue. Some LTB decisions have found that “pay to stay” orders are limited to the monetary jurisdiction of the Board: Galaxy Real Estate Core Ontario Properties LP v Deen, 2022 CanLII 78938 (ON LTB); Guo v Apiou, 2021 CanLII 142621(ON LTB); Divani v. Brown, 2021 CanLII 147655 (ON LTB). Other LTB decisions have concluded that “pay to stay” terms may exceed the monetary jurisdiction of the Board: 2022 CanLII 56643 (ON LTB) and 2022 CanLII 127325 (ON LTB).
....
(c) Condition for Setting Aside an Eviction Order is not an Order for the Payment of Money within the meaning of s. 207 of the RTA
[19] An “order for the payment of money” within the meaning of s. 207 of the RTA is an LTB order that may be registered with the court and enforced in the same way as an “order for the payment of money” made by a court. Orders terminating a tenancy under s. 69 of the RTA are not orders for the payment of money. They are orders terminating a tenancy. They are enforced by removing the tenants from possession of the premises and giving possession of those premises to the landlord. Once that has been done, the orders are “spent”, having been “executed”. Orders made pursuant to s. 74 are orders terminating a tenancy, not orders for the payment of money.
[20] The appellant’s arguments do not seriously contest this analysis. Rather, they focus on this language in subsection 207(3) of the RTA: “... all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order.” Arrears under the lease that exceed the monetary jurisdiction of the LTB are “extinguished” once the LTB “issues its order” and thus, on calculating the amounts required to be paid to void a termination order, “rent in arrears under the tenancy agreement” does not include arrears the rights to which have been “extinguished”.
[21] The result of this approach could be the very “absurdity” noted by Ferrier J. in Horsheim: a tenant could fail profoundly to meet their obligation to pay rent, running arrears over $35,000, and then “cure the default” by paying $35,000, obtaining a rent reduction proportional to the extent of their profound default. The only way to avoid this situation, for a landlord, would be to bring proceedings in the Superior Court – with much higher costs and delays, and adding significantly to the burdens of a court system that is already under considerable strain.
[22] The sense of absurdity is all the greater when one considers the continuing accrual of arrears. In this case, the arrears (accruing at $10,000 per month) were $50,000 at the time of the LTB decision but grew an additional $20,000 over the course of the time required to give the Tenant an opportunity to cure pursuant to s. 74 of the RTA. It could not have been the intention of the Legislature to create a situation whereby a tenant could obtain an ever-greater reduction in rent arrears, at the expense of the landlord, by delay in curing its default in meeting its fundamental obligation to pay rent. These provisions were designed to afford tenants a significant opportunity to cure their default and preserve their tenancy, not to afford tenants an extended period of rent abatement.
[23] Alternatively, if the appellant’s argument were given effect, it would still permit landlords to pursue eviction before the LTB but would require landlords to defer a request for an order for payment of arrears until after termination of the tenancy. It would require the LTB to make its order for payment only after termination had been ordered and executed. In other words, by requiring additional steps and by following a particular order of adjudication, the landlord and the LTB could defer making an “order for the payment of money” until after eviction had taken place – making the process more cumbersome and expensive for the LTB and for the parties.
[24] It is in this context that the LTB stated as follows on this issue in this case:While the Board cannot order a person to pay more than $35,000.00 in accordance with [s.207(1)] of the Act, I find that this does not apply to the “stay and pay” option set out in the order below. The order terminates the tenancy and requires the tenant to pay the amount up to the Board’s monetary jurisdictional limit of $35,000.00 plus the cost of filing the application. The tenant can choose to pay the full amount of rent, and costs owing to the Landlord if they choose not to vacate the unit. This amount is optional and only required if the Tenant elects to continue the tenancy. Therefore, the Board is not ordering this amount to be paid and is not ordering an amount that exceeds the limit. (Decision, para. 4) [25] The standard of review on a question of law is correctness, but this court “should take the administrative decision maker’s reasoning into account – and indeed, it may find that reasoning persuasive and adopt it….” (Vavilov, para. 54; see also Smith v. Youthlink Youth Services, 2022 ONCA 313, para. 17; Reisher v. Westdale Properties, 2023 ONSC 1817, paras. 9-10). As explained above, the LTB’s reasoning on this issue is persuasive and gives effect to the different provisions in the RTA governing orders for payment of money and orders for termination of a tenancy. It follows longstanding authority from this court. The contrary interpretation would result in an unfair windfall to tenants, and would likely have the long-term effect of encouraging transfer of a significant number of landlord and tenant disputes to the Superior Court.
COMMENT
. Overview
In other words, according to this court in Rosen v Reed, any of the various RTA s.47 catch-up payments - even if made in the course of an RTA case before the LTB - can exceed $35,000 in quantum - and to hold otherwise would be 'absurd' as a landlord-ripoff, and inconvenient as creating an incentive unnecessarily bring RTA cases in the Superior Court.
As will be seen below, I disagree - but first, some needed clarification.
. Understanding 'Catch-up Payments'
The court misconceives the nature of the RTA 74 'catch-up payment' scheme right from the start [para 2 and 4]: ... the monetary jurisdiction of the Board does not constrain its discretion to impose terms to void an order terminating a tenancy. andThe LTB terminated the tenancy for non-payment of rent but also ordered that the Tenant could void the termination order (my emphasis) upon payment by March 20, 2023 of the entirety of the arrears ($50,000) plus accrued and accruing rent of $10,000 per month, pursuant to s. 74 of the RTA. 'Catch-up payments' are not subject to any tribunal discretion, nor are they compelled by an order - they instead draw their effect - that of 'cancelling' the RTA 74(3) termination orders - by force of statutory provisions: ie. 'discontinuing' [RTA 74(2)], 'voiding' [RTA 74(4),(5),(6),(14),(16)] and 'setting aside' [RTA 74(9),(10),(11)]. This misconception likely arises from RTA 74(3), which at clause (b) requires that a termination order shall:... inform the tenant and the landlord that the order will become void if, before the order becomes enforceable, the tenant pays to the landlord or to the Board the amount required under subsection (4) and specify that amount; Clause (b) is not akin to what we normally consider to be aspect of an order, either tribunal or court. Rather, if it has any legal precedent it is that a Consumer Protection Act (CPA) informational notice, such as we see in CPA General Reg 35(2) ['Your Rights under the Consumer Protection Act, 2002']. They are consumer advisories, tactically and physically located within the text of a non-payment of rent termination order, in the hope of attracting tenant attention.
While germane to the formal order and it's enforcement, these 'catch-up payment' informational notices are quite different in that they have no compulsory or declarative aspects. But they are not new, as a very similar notice is located earlier in the RTA process - with the RTA 59(2) Notice of Termination (for non-payment of rent) [".. 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 ..."]. Most of RTA 74 can be viewed as an extension of this RTA 59(2) technique through all of the stages of the non-payment notice, hearing, termination and eviction process.
This 'deception' is further understandable in that the RTA 74(3)(b) 'informational notice' is required to contain [at clause (a)] a monetary itemization of the arrears, overhold compensation and costs required to satisfy the 'catch-up payment', much in appearance like a true monetary orders.
It may be helpful to note that termination orders [RTA 74(3)] are not necessarily combined (though they commonly are) with orders for arrears (and related amounts). Separate LTB proceedings and related orders for payment of rent arrears are located in RTA 87 ['Application for arrears of rent'], although they are commonly brought together in a Form L1 ['Application to Evict a Tenant for Non-payment of Rent and to Collect Rent the Tenant Owes '] application.
In any event, no administrative provision or LTB order contained anywhere in RTA 74 [even RTA 74(3) "terminating a tenancy and evicting the tenant"] is one which "order(s) the payment to any given person of an amount of money", and 'catch-up payments' (at least directly) avoid the monetary jurisdictional order limit of RTA 207.
In that respect I agree with the court, but a corrected context was necessary.
. The Appellant's RTA 207(3) Argument
At para 20 the court states the appellant's primary argument, that drawn from RTA 207(3):207(3) If a party makes a claim in an application for payment of a sum equal to or less than the Board’s monetary jurisdiction, all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order. The argument centers on the phrase "all rights". The argue goes: 'aha! - this means catch-up payment 'rights' as well!' That means that if - as will be done in the common combined non-payment termination and arrears application - the landlord also seeks arrears, then any catch-up payments over $35k are prohibited.
This is the interpretation that Corbett J resists [at para 21], primarily on the dual bases of: 1. 'absurdity' (no doubt with a common law lawyer's instinct to resist forfeiture in the face of a fair exchange), and 2. 'inefficiency' (the court's fear that the incentive that this will create for similarly-situated parties to pursue their RTA cases in Superior Court, apparently an assumed mischief). Note that re 'absurdity', the court is at pains throughout his reasons [paras 6-8,21-23] to spell out further financial [and even procedural (para 23)] mischief.
I am not at all persuaded by this court's abbreviated RTA 207(3) statutory interpretation endeavour. Even an additional cursory 'text/context/purpose' [La Presse inc. v. Quebec (SCC, 2023), para 23] examination raises serious doubts as to the results reached here.
Firstly 'text'. The textual "all rights" of RTA 207(3) clearly goes against the respondents and the court, at least as far as we are into the realm of LTB orders (though not in relation to the several prior administrative 'discontinued's and 'void's). A 'catch-up payment' and it's 'cancellation' of the termination order is clearly a 'right', and the pre-LTB-order and post-LTB-order administrative distinction is wholly consistent with the plain RTA 207 goal of distinguishing the institutional monetary jurisdiction of the LTB from that of the Superior Court.
Secondly 'context'. The statutory 'context' of RTA 207(3) is clearly that of the relevant balance of RTA 207, and that is undeniably the drawing of the monetary dividing line between LTB orders and Superior Court claims/orders: RTA 207(1-2). Given the final operative phrasing of RTA 207(3) [ie. "... once the Board issues its order"] RTA 207(3) can only have application to 'orders' - and consequently with respect to RTA 74, RTA 207(3) law can only be about 'orders' [ie. RTA 74(6,11,14)] - not about the administrative procedural 'discontinuances' or 'voidings' that precede actual orders [ie. RTA 74(4,5)]. Again though we see this institutional line-drawing: LTB versus Superior Court.
Thirdly, 'purpose'. This last observation supports the purposive statutory interpretation point in that RTA 207 is all about - and perhaps even only about - monetary line-drawing between the LTB and the Superior Court as adjudicative 'institutions'. Simply put, the legislation was intent of delegating responsibility for under-$35k cases to the LTB, and higher-value cases to the Superior Court - in an almost identical fashion to which it line-drew earlier between the Small Claims Court and the Superior Court, in the purely civil context. Where an applicant has facts which allow for the choice between the two, that choice is left to the applicant, and it should be respected - and if necessary, enforced - ie. 'you had your choice to 'go higher', and you chose against it - so you're stuck now'.
. Summary
In summary, an unstressed application of the 'modern principle' of statutory interpretation results in a reading of RTA 207(3)'s "all rights" that 'sacrifices' overages when the applicant opts for the 'cheaper' LTB procedure, an ultimate conclusion that is opposed to that of the court in this case. That is, once the parties are into the LTB application stage, 'catch-up payments' are subject to the RTA 207(3) $35k limit.
. Rosen v. Reed
In Rosen v. Reed (Div Court, 2023) the Divisional Court considers a compelling non-payment of rent issue [for background see Chapter 7 - Non-Payment of Rent Terminations of the Guide], here whether the $35k monetary LTB limit [RTA s.207] applies to what I call 'catch-up-payments' [under RTA 74(4,11)] [see s.8: 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order']. The specific issue is whether a 'catch-up payment' can be over $35k (the tenancy here was an unusually expensive one at $10k/month).
These quotes review the extensive RTA 74 non-payment termination provisions, which have received relatively little appeal attention:The Statutory Provisions
(a) Claims for Payment of Money
[9] Section 207 of the RTA provides as follows:(1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.
(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction.
(3) If a party makes a claim in an application for payment of a sum equal to or less than the Board’s monetary jurisdiction, all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order. [10] The current monetary jurisdiction of the Small Claims Court is $35,000.00: O. Reg. 626/00, s. 1. Thus, the LTB may not order payment of more than $35,000.00 by virtue of RTA, s. 107(1) and O. Reg. 626/00, s. 1. A person wishing seeking an order for payment of more than $35,000 under the RTA may then do one of two things:(a) bring the claim in the Ontario Superior Court (being the court of competent jurisdiction to hear a claim above the monetary jurisdiction of the Small Claims Court) to obtain an order for payment of the amount of the claim. In this event, the court could also grant an order terminating the tenancy and could exercise any other powers available to the LTB under the RTA in relation to the claim.
(b) Bring the claim before the LTB for “a sum equal to or less than” $35,000.00. In this event, the claimant’s rights in excess of $35,000.00 “are extinguished once the Board issues its order.” So, the claimant has a choice to make: to use the faster, less expensive, less formal process before the Board, the claimant must limit the claim for an order for payment to $35,000.00. Or the claimant can pursue its full rights to payment before the Superior Court of Justice.
(b) Claims for Termination of Tenancy
[11] Section 59 of the RTA provides as follows:(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.
(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.
(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. [12] Subsection 69(1) of the RTA provides:A landlord may apply to the Board for an order terminating a tenancy and evicting the tenant if the landlord has given notice to terminate the tenancy under this Act.... [13] Subsection 74(2) of the RTA provides:An application by a landlord under section 69 for an order terminating a tenancy and evicting the tenant based on a notice of termination under section 59 shall be discontinued if, before the Board issues the eviction order, the Board is satisfied that the tenant has paid to the landlord or to the Board,
(a) the amount of rent that is in arrears under the tenancy agreement;
(b) the amount of 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; and
(c) the landlord’s application fee. [14] Subsections 74(3) and (4) of the RTA provide as follows:(3) An order of the Board terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 59 shall,
(a) specify the following amounts:
(i) the amount of rent that is in arrears under the tenancy agreement,
(ii) the daily amount of compensation that must be paid under section 86, and
(iii) any costs ordered by the Board;
(b) inform the tenant and the landlord that the order will become void if, before the order becomes enforceable, the tenant pays to the landlord or to the Board the amount required under subsection (4) and specify that amount; and
(c) if the tenant has previously made a motion under subsection (11) during the period of the tenant’s tenancy agreement with the landlord, inform the tenant and the landlord that the tenant is not entitled to make another motion under that subsection during the period of the agreement.
(4) An eviction order referred to in subsection (3) is void if the tenant pays to the landlord or to the Board, before the order becomes enforceable,
(a) the amount of rent that is in arrears under the tenancy agreement;
(b) the amount of 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;
(c) the amount of NSF cheque charges charged by financial institutions to the landlord in respect of cheques tendered to the landlord by or on behalf of the tenant, as allowed by the Board in an application by the landlord under section 87;
(d) the amount of administration charges payable by the tenant for the NSF cheques, as allowed by the Board in an application by the landlord under section 87; and
(e) the costs ordered by the Board. [15] Subsection 74(11) of the RTA provides:A tenant may make a motion to the Board, on notice to the landlord, to set aside an eviction order referred to in subsection (3) if, after the order becomes enforceable but before it is executed, the tenant pays an amount to the landlord or to the Board and files an affidavit sworn by the tenant stating that the amount, together with any amounts previously paid to the landlord or to the Board, is at least the sum of the following amounts:
1. The amount of rent that is in arrears under the tenancy agreement.
2. The amount of 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.
3. The amount of NSF cheque charges charged by financial institutions to the landlord in respect of cheques tendered to the landlord by or on behalf of the tenant, as allowed by the Board in an application by the landlord under section 87.
4. The amount of administration charges payable by the tenant for the NSF cheques, as allowed by the Board in an application by the landlord under section 87.
5. The costs ordered by the Board. [16] The effect of these provisions is that the LTB may make an order to terminate a tenancy for non-payment of rent: the landlord gives notice of termination for non-payment (s. 59), following which the landlord may apply to the LTB for an order terminating the tenancy (s. 69). The tenant may avoid eviction, before the LTB issues an eviction order, by paying everything owing under the lease plus the fee paid by the landlord to commence eviction proceedings before the LTB (s. 74(2)). If the tenant does not do this, and the LTB issues an eviction order, the LTB specifies the amount the tenant must pay to void the eviction order before it becomes enforceable (s. 74(3)), and if the tenant pays that amount before the eviction order “becomes enforceable”, then the eviction order is void (s. 74(4)). Even after the eviction order has become enforceable, if the order has not yet been executed, the tenant may move before the LTB to set aside the eviction order upon proof of payment of rent obligations under the lease and the landlord’s costs and expenses (s. 74(11)).
[17] The obligation to pay rent is a tenant’s fundamental obligation: Schwartz v. Fuss, 2021 ONSC 1159 (Div. Ct.); Gencay v. Capreit Limited Partnership, 2021 ONSC 8293 (Div. Ct.); Galaxy Real Estate Core Ontario LP v. Kirpichova, 2023 ONSC 593 (Div. Ct.). A landlord is entitled to obtain an eviction order where a tenant is in default of this fundamental obligation. However, the RTA, being remedial in nature, and seeking to protect the interests of tenants in their security of tenure in their home, affords tenants an opportunity to cure their default on notice of the landlord’s claim, prior to that claim being adjudicated by the LTB, and even after the LTB’s decision. In each of these circumstances, the tenant may cure the default by making the landlord whole – that is, by paying arrears “under the tenancy agreement” plus accrued occupancy charges and the landlord’s costs.
[18] The essence of the LTB order, in each case, is an order terminating the tenancy. If the tenant does not void the order, and it is enforced by removing the tenant, the order is then spent and may not subsequently be enforced as an order for payment of money.[SS: I think this last comment needs explanation. While non-payment termination/evictions are normally combined with rent arrears claims in an L1 application, they don't have to be since rent arrears may be advanced separately (under RTA 87). So this comment, which (to me at least) suggests an 'either/or' dynamic, is misleading.] . Rosen v. Reed
In Rosen v. Reed (Div Court, 2023) the Divisional Court considers a compelling non-payment of rent issue [for background see Chapter 7 - Non-Payment of Rent Terminations of the Guide], here whether the $35k monetary LTB limit [RTA s.207] applies to what I call 'catch-up-payments' [under RTA 74(4,11)] [see s.8: 'Enforceable-Order-to-Eviction "Catch-Up Payment" and Tenant's One-Time Motion to Set Aside Eviction Order']. The specific issue is whether a 'catch-up payment' can be over $35k (the tenancy here was an unusually expensive one at $10k/month).
In these quotes, the court [Corbett J] waxes large on the fundamental nature of a tenant's rent obligation, and the nature of an order to terminate a tenancy:[17] The obligation to pay rent is a tenant’s fundamental obligation: Schwartz v. Fuss, 2021 ONSC 1159 (Div. Ct.); Gencay v. Capreit Limited Partnership, 2021 ONSC 8293 (Div. Ct.); Galaxy Real Estate Core Ontario LP v. Kirpichova, 2023 ONSC 593 (Div. Ct.). A landlord is entitled to obtain an eviction order where a tenant is in default of this fundamental obligation. However, the RTA, being remedial in nature, and seeking to protect the interests of tenants in their security of tenure in their home, affords tenants an opportunity to cure their default on notice of the landlord’s claim, prior to that claim being adjudicated by the LTB, and even after the LTB’s decision. In each of these circumstances, the tenant may cure the default by making the landlord whole – that is, by paying arrears “under the tenancy agreement” plus accrued occupancy charges and the landlord’s costs.
[18] The essence of the LTB order, in each case, is an order terminating the tenancy. If the tenant does not void the order, and it is enforced by removing the tenant, the order is then spent and may not subsequently be enforced as an order for payment of money. . Oz v. Shearer
In Oz v. Shearer (Div Court, 2023) the Divisional Court considered the sometimes-complex 'voiding on payment of catch-up rent' provisions of the RTA's non-payment of rent regime [RTA 74]:Voiding Order Appeal
[14] On August 24, 2023, the Tenants filed another Notice of Appeal. This Notice of Appeal related to an August 22, 2023 endorsement of the LTB in relation to the Tenant’s motion for an order voiding the LTB eviction order on the ground that the Tenant had made full payment of the arrears “prior to the original order becoming enforceable”.
[15] The Tenant’s motion before the LTB related to s. 74 of the Residential Tenancies Act. Section 74(4) of the Act provides that “an eviction… is void if the tenant pays to the landlord or to the Board, before the order becomes enforceable” (emphasis added) the amount of rent and arrears found owing by the LTB as well as certain additional administrative charges and costs.
[16] Section 74 provides for two procedures for obtaining a voiding order. The s. 74(6) procedure applies where full payment is made “before the order becomes enforceable”. When a motion to obtain a voiding order is made “before the order becomes enforceable”, the motion can be brought without notice to the Landlord and the LTB can make its decision without holding a hearing: s. 74(5) – (8). The onus is then on the Landlord to bring a motion to the LTB to have the voiding order set aside: s. 74(9) – (10).
[17] If the tenant pays the amount of arrears and other charges and expenses “after the order becomes enforceable but before it is executed”, the tenant can still bring the motion for a voiding order, but must give notice to the landlord: s. 74(11), and the motion must be referred to a hearing: s. 74(14).
[18] In its motion before the LTB, the Tenant took the position that he had made relevant payments before the Order became enforceable, and he therefore did not have to give Notice to the Landlord. The LTB’s decision of August 22, 2023 did not decide whether or not he was entitled to a voiding order, but decided that the s. 74(6) procedure did not apply because the payment was made after the eviction order became enforceable. The LTB stated:The Tenant has submitted a second motion to void in relation to this order issued on January 12, 2023.
The Tenant alleges they are seeking a voiding order under section 74(6) of the Act.
The order required that the Tenant pay $27,651.88 on or before January 15, 2023, the date in which the order became enforceable.
The first motion to void indicated that the Tenant paid $29,670.76 to the Landlord on January 31, 2023.
As a result, the Board was not able to issue a voiding order as the payment was not made on or before January 15, 2023 in accordance with the order.
Therefore, this second request must be denied. Where payments to void an order are made after the order becomes enforceable, and before the Sheriff enforces the order, then the motion to void must be referred to a hearing to determine if the Landlord has incurred additional expenses after the order became enforceable and to determine if the Tenant has previously filed a motion to void with the Board. [19] Thus, the LTB did not decide the merits of the Tenant’s motion, but only that the Tenant had to bring his motion under s. 74(11) on notice to the Landlord.
[20] The Tenant’s Notice of Appeal alleges that the LTB misinterpreted the term “enforceable” in s. 74 of the Residential Tenancies Act.
[21] It is important to note that the August 22, 2023 LTB Order is not an eviction order. It did not purport to evict the tenant, it set out the procedure for the Tenant to follow if he sought to void the eviction order. The eviction order was issued by the LTB on January 3, 2023, and has already been appealed and is subject to a statutory stay pending the decision of the Divisional Court.
[22] Staying the August 22, 2023 LTB order would not, therefore, stay an eviction order. In my view, the stay of the August 22, 2023 LTB order would have no practical effect, since there was nothing to be enforced. Where the LTB decision simply dismisses a request for relief, a “stay” of the Order has no practical effect.
|
