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RTA - Notice of Application. Monterozza v. Matthews
In Monterozza v. Matthews (Ont Divisional Ct, 2025) the Divisional Court considers a situation where the LTB amended an eviction application, here to seek arrears of rent only [under RTA s.87]:[30] A second remedy available to the Landlord for non-payment of rent is to apply to the LTB under s. 87 of the RTA for an arrears-only order against a non-bankrupt joint tenant for both pre- and post- bankruptcy rent.
[31] Rule 15.4 of the LTB Rules of Procedure states:15.4 The LTB may exercise its discretion to grant a request to amend made at the hearing if satisfied the amendment is appropriate, would not prejudice any party and is consistent with a fair and expeditious proceeding. [32] Section 201(1)(f) of the RTA allows the Board to amend the Application on its own motion and on notice to the parties if the Board considers it appropriate to do so, and if amending the application would not be unfair to any party.
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[51] The LTB argues that the real issue on this appeal is whether Ms. Colley, the paralegal representing the Landlord, took action to seek an arrears-only order when appearing before the adjudicator at the hearing. The Landlord was required to bring an amendment to his L1 Application to convert it to a L9 Application that seeks payment of rental arrears only, which could have been requested at the hearing under Rule 15.4 of the LTB Rules of Procedure. The LTB argues this was not done.
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[58] It is a relevant consideration that the two non-bankrupt Tenants did not receive formal notice that a request would be made at the hearing to amend the Application to claim rental arrears only. Under s.201(1)(f) of the RTA, notice may be given before, during, or after a hearing (Nejad v. Preddie, 2016 ONSC 4348, [2016] O.J. No. 3846 (Div. Ct.), at para. 49).
[59] It is possible that the Tenants may not have attended the hearing because they incorrectly believed they would be protected from having to repay rental arrears because Ms. Matthews filed for bankruptcy. However, both Tenants were aware of the hearing dates, and that the Landlord was seeking payment of rental arrears against them, and still chose not to attend either hearing date.
[60] Rule 15 of the LTB Rules of Procedure permits amendments to an Application to be made at the hearing if no prejudice to the parties will result. Section 201(1)(f) permits the LTB to amend an Application on its own motion on notice to the parties. Given that the two non-bankrupt Tenants were not in attendance at the hearing, it was open to the adjudicator to adjourn the hearing briefly once again to permit the non-bankrupt Tenants to have specific notice of the intention to convert the L1 Application to a L9 Application.
[61] I also note that a L9 Application is essentially the same as a L1 Application, without the remedy of eviction, and is therefore a less extreme form of recourse as against the Tenants. The Divisional Court stated in Nejad, at para. 47:... since an L1 application puts the tenant on notice that the landlord seeks both eviction and arrears, it is hard to imagine how depriving the landlord of the remedy of eviction but allowing the landlord to proceed with an application for arrears could possibly prejudice the tenant. [62] In addition, I do not accept that the non-bankrupt Tenants’ decision to avoid the hearing protects them from having orders made in their absence that may affect them. The non-bankrupt Tenants had adequate notice of the hearing and of the relief being sought against them. They had an opportunity to educate themselves about the possibility that an arrears-only order could be granted against them despite the bankruptcy of Ms. Matthews.
[63] It is also relevant that the non-bankrupt Tenants were certainly aware from the materials filed on this appeal that the Landlord was seeking an arrears-only order against them at this appeal, but they did not file materials, attend, or make submissions with respect to this issue.
[64] I therefore find that amending the Application at the hearing, or providing a brief adjournment of the hearing to provide specific notice to the Tenants that there was a motion being brought to convert the L1 Application to a L9 Application, would have caused little or no prejudice to the non-bankrupt Tenants. . Miller Estate v. Arguelles [LTB amending NofA - Rule 15.4]
In Miller Estate v. Arguelles (Ont Divisional Ct, 2025) the Divisional Court dismissed a tenant's RTA appeal, here from a 'personal possession' for a family member eviction. The case was complicated by the death of the owner during the LTB proceeding, and the LTB application separately listing of 'landlord' (the property manager) and the 'owner'.
Here the court considers the effect of the LL's failing to "disclose previous Notices to End the Tenancy for Landlord’s Own use" on the LTB application [as required by RTA s.71.1(3)]:[13] The tenant has framed the issues on appeal as follows:....3. Did the Board err in law by adjudicating on the landlord’s eviction application when it had failed to disclose previous Notices to End the Tenancy for Landlord’s Own use? ....
The Failure to Disclose
[27] Section 71.1(3) of the Act provides that a landlord who files an application based on a notice of termination given under s. 48 shall indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different unit and provide particulars of such notices. Subsection (4) says that the Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).
[28] At the outset of the hearing, the landlord’s representative pointed out to the Board that although the application disclosed two other notices given, it did not include the notice given to the tenant in March of 2022. The Board exercised its discretion to amend the application to include the disclosure as made that day.
[29] The tenant argues that the Board has no such discretion - that once it determines the landlord has not complied with its obligation to disclose, its only choice is to dismiss the application.
[30] Once again, I disagree.
[31] The provisions in question attempt to balance the good faith rights of a landlord to take occupation of a residential unit with the rights a tenant to be free from wrongful eviction.
[32] The required disclosure ensures tenants have at least some of the information necessary to legitimately question the landlord’s good faith use of the s. 48 notice. That information may allow for further investigation by the tenant that reveals the landlord has not acted in good faith on earlier occasions. It may allow the Board to infer that a landlord is not acting in good faith in the application before it.
[33] However, it is important to note that the consequence of failing to comply with s. 71.1(3) is not to render the notice void, or to prohibit the landlord from bringing its application, or to dismiss the application. It is to refuse the filing of the application.
[34] If the non-compliance is apparent on its face, the application is simply refused so that the landlord can complete it properly and offer it for filing once again. It does not have the effect of rendering the notice invalid or prohibiting the landlord from then proceeding on it.
[35] Once the application is accepted for filing, there is nothing that prohibits amendment to include additional notice information. Indeed, Rule 15.4 of the Landlord and Tenant Board Specific Rules anticipates amendments to applications provided the amendment is appropriate, would not prejudice any party, and is consistent with a fair and expeditious proceeding.
[36] In this case the landlord made some disclosure in the application, and it was accepted for filing. As the tenant was the very person who had been served with the undisclosed N12 (and therefore must have known of it), it cannot be said she was prejudiced by its omission from the application.
[37] The amendment was appropriate, did not prejudice the tenant and was consistent with a fair and expeditious proceeding. I see no legal error.
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