Can a notice of termination be served by email?

Proper methods of service are spelled out in RTA section 191 and Rule 3 of the LTB Rules of Procedure.

From Rule 3 of the LTB Rules of Procedure:

"Service by Email
3.4	Parties may consent in writing at any time to service by email.
3.5	Consent to service by email may be revoked at any time by giving notice in writing to the person or party.
3.6	Where a party does not consent to service of a document by e-mail, the LTB may permit the document be served by e-mail on such terms as are just. [...]

When Documents are Served
3.8	A document is considered served on the: fifth day after mailing; date on the fax confirmation receipt when sent by fax; day after it was given to the courier when sent by courier, or if that day is a holiday, the next day that is not a holiday; day it was sent when sent by email; [...]"

1)

It is important to note that, until relatively recently, there was a rule (old Rule 3.5, see highlighted in grey on the screenshot below) that stated that notices of termination could not be served by email. But the LTB Rules of Procedure were amended in December 2020. The amended Rules seem to permit service of notices of termination by email in cases when there is consent (which hasn't been revoked by the time the notice was served).

2)

Additionally, even if the method of service is improper (e.g. if an email was served *without* prior consent to service by email), RTA subsection 191(2) says that if it can be proven that the notice came to the intended recipient's attention in time, the notice would be deemed "validly given" anyway. For example, if the tenant replied to the email (and interacted with the content of the notice) in time for the minimum days' notice requirement to be satisfied, this would probably prove receipt of notice in time.

More on this: If you received a notice by text, Facebook, etc, can it be valid?

RTA subsection 191(2):

"When notice deemed valid
(2)	A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period. 2006, c. 17, s. 191 (2)."

This is reiterated in the LTB Interpretation Guideline 10: Procedural Issues Regarding Eviction Applications:

"Adequacy of Service of the Notice of Termination The Notice of Termination must be given to the tenant by a method set out in subsection 191(1) of the RTA and in Rule 3.1 of the Rules of Practice. If the landlord has used a different method (without specific permission through a direction signed by a Member), and the tenant does not voluntarily admit to receiving the Notice on time, an application for eviction may be dismissed. If the tenant acknowledges receipt of the Notice by the date required or if the landlord can prove that the tenant received it, this will be sufficient no matter how the Notice was served."

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