Proper methods of service (in RTA section 191 and Rule 3 of the LTB Rules of Procedure) do not include texting, messaging on social media, etc.
This post shows a few LTB examples that deal with RTA subsection 191(2), i.e. notice "deemed validly given" (despite improper method of service) if it is proven that the notice came to the intended recipient's attention in time. This is where acknowledgement of receipt or message tracking software can come in handy.
Also please note that these rulings came out before the LTB Rules of Procedure were amended in December, 2020 (and later again on September 1, 2021). Please check the new Rules of Procedure and its amendments on service of documents by email (Rule 3), but the general principle from RTA subsection 191(2) remains unchanged.
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(1)
TST-82757-17 (Re), 2017 CanLII 60125 (ON LTB), par. 10, <https://canlii.ca/t/h5znp#par10>
"Although email is not one of the prescribed methods of service in the Act, the notice came to the Tenant’s attention within the required time, deeming the notice to have been validly given under section 191(2) of the Act. Therefore, the Landlord did not substantially interfere with the Tenant’s enjoyment through the notice he provided. Further, the Landlord did not substantially interfere with the Tenant’s reasonable enjoyment through the entry itself since the entry on December 18, 2016 did not happen."
(2)
TSL-88956-17 (Re), 2017 CanLII 142691 (ON LTB), <https://canlii.ca/t/hrx8r>
"Deemed Service Considerations
11. Subsection 191 (2) of the Act states: “A notice of document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that is contents actually came to the attention of the person for whom it was intended within the required time period.”
12. The Landlord asked that I find that an email sent by the Tenant to the Landlord representative, EM, on April 4, 2017 be considered as proof that the contents of the Notice of Rent Increase actually came to the Tenant’s In the email, the Tenant says “During my conversation with (EM), he indicated a 40% rent increase starting June 15 ($1,800 per month), I am happy to inform you that I will not pay that outrageous rate and will vacate the unit.”
13. The Tenant says this was not an acknowledgement of a document she never received, but a reference to a conversation she had with the Landlord’s representative in early April in which he mentioned a rent increase coming.
14. I accept the Tenant’s evidence on this point. The Tenant’s email mentions a conversation, but makes no mention of a Notice of Rent Increase. If the Tenant had recently received a Notice of Rent Increase I would have expected her to mention this in the email.
15. The Landlord also points to an email dated August 18, 2017 in which the Tenant says: “Please note, I do not own (sic) any money to my knowledge. When I spoke with my landlord about one month ago, she was not aware of the rent control. Please check with the Board”. The Landlord submits this should be taken as evidence that the Tenant was disputing the Notice of Rent Increase on the basis that the building was covered by the rent control guidelines in the Act and that this is evidence that she was aware of the Notice of Rent Increase. I do not find that the Tenant’s statement can be considered as proof that the Notice of Rent Increase came to the attention of the Tenant because, again, I would have expected her to mention this in the email."
(3)
TSL-75946-16 (Re), 2016 CanLII 71242 (ON LTB), par. 9, <https://canlii.ca/t/gv8hb#par9>
"9. Section 191(2) of the Act states that a notice that is not served in accordance with the Act is deemed to have been validly served if it is proven that its contents actually came to the attention of the person for whom it was intended. JR testified that she has spoken to the Tenants about the first N5 Notice and she saw a copy of it hanging on their fridge. However, without the Tenants present at the hearing, there was no way for me to confirm that the Tenants did in fact receive the notice.
10. I find that the Landlord did not use one of the prescribed methods of service in the Act and/or the Board’s Rules of Practice to serve the first N5 Notice. There is no reason why the Landlord could not have served the notice by mailing it to the Tenants in accordance with section 191 of the Act. The Landlord could have also served the Tenants personally, especially given that the Landlord does not appear to have issues with speaking to the Tenants in person. Accordingly, I find that the first N5 Notice is invalid."
(4)
TST-74966-16 (Re), 2017 CanLII 60771 (ON LTB), par. 20, <https://canlii.ca/t/h5zmg#par20>
"20. Subsection 191(2) of the Act states that a notice that is not served in accordance with the Act is deemed to have been validly served if it is proven that its contents in fact came to the attention of the person for whom it was intended. As such, there is an onus on a landlord, in a situation such as this, to ensure that the email, which is an alternate method of service to those outlined in section 191, comes to the attention of a recipient tenant. While there is nothing in the Act requiring a tenant to be present in the unit if proper notice of entry is given by a landlord, this does not negate a landlord’s responsibility, in a case where the notice of entry is not given in accordance with section 191 of the Act, to ascertain that the notice came to the tenant’s attention. Indeed, what transpired here on January 28, 2016, when the superintendent entered the unit and happened upon the Tenant while he was sleeping, only serves to illustrate why a landlord’s compliance with Subsection 191(2) of the Act is required by the legislation.
21. Again, next to no useful evidence was provided by the Landlord in relation to this issue and I was somewhat taken aback by DL’s position on this issue. When asked, on cross-examination, what steps were taken by the Landlord to confirm the Tenant’s receipt of the email at issue, DL testified, “It went to your active email. My concern is not your preference of method of receipt of notices.” Given the evidence provided, I find, on a balance of probabilities, that the Landlord failed to provide a proper notice of entry to the Tenant for the entry on January 28, 2016 and, as such, the Landlord was in breach of the Act."
(5)
SOT-77200-16 (Re), 2017 CanLII 60525 (ON LTB), par. 52, <https://canlii.ca/t/h5z07#par52>
"52. That being said, I would note for the benefit of the parties, e-mail is not an acceptable form of service set out in section 191(1) of the Act. However, landlords and tenants often communicate by text and e-mail because that is their method of choice for communicating with one another. Pursuant to s. 191(2), if a notice is sent by a method other than one of the approved methods but the sender can prove it was actually received within the time limit for service, that is acceptable under the Act."
(6)
"40. Pursuant to s. 191 of the Act service by e-mail is not a permitted method of service. However, s. 191(2) says that if it can be proven that the document came to the attention of the recipient within the time period required, the document shall be deemed to be validly served.
41. Applying these principles to the facts here results in the following conclusions:
• The entry that occurred to turn off the water on November 19, 2013, may or may not have been a legal entry depending on when the entry occurred. The evidence is insufficient to establish it is more likely than not that it was an illegal entry. I say this because the Tenants received e-mail notification by 10:53 a.m. at the latest on November 18, 2013 – that is when they replied. So if the entry occurred before 10:53 a.m. the next day and the Landlord let himself in then it was an illegal entry. If it occurred after 10:53 a.m. on November 19, 2013, or the Tenants let him in when he arrived, then it was a legal entry.
• Similarly, the entry that occurred on November 20, 2013, to turn the water off again may or may not have been lawful. The e-mails indicate the Tenants received less than 24 hours’ notice but no evidence was led with respect to whether or not the Tenants let the Landlord in when he arrived or whether or not he entered without their consent at the time of entry.
• It is more likely than not that the entry that occurred on December 3, 2013, to install a new thermostat system was an illegal entry. I say this because the evidence does not support the proposition the Tenants received the e-mail more than 24 hours prior to the entry itself and an e-mail after the entry indicates the Landlord let himself in to do the work that day. This is one of the entries the Tenants consented to in advance but not at the time the entry occurred.
• The entry that occurred on December 5, 2013, was a legal entry as the e-mail trail shows the Tenants received notice of the boiler technician coming that day several days in advance.
• The entry that occurred on December 22, 2013, to repair internet access for the tenants upstairs was an illegal entry as the e-mail trail shows the Tenants received less than 24 hours’ notice.
• December 29, 2013, is the incident where the Tenants returned home to find the Landlord sitting on their couch. There was no e-mail notice in advance of this entry; in fact, the Landlord’s e-mails said he would enter the following day. The evidence with respect to this entry is that the Landlord wanted to get to the thermostat because his remote application was not working. That evidence is insufficient to establish the entry was for an emergency purpose. As a result, the December 29, 2013, entry was in breach of the Act.
• An entry was planned for January 2, 2014, for work in the kitchen. The original e-mail from the Landlord was received by the Tenants more than 24 hours in advance but contained no time of entry. This entry probably occurred as there is an e-mail from January 5, 2014, talking about the second coat of plaster. However, the e-mails indicate the second-named Tenant above expected to be home and might have let him in. So the evidence is insufficient to establish it is more likely than not that there was an illegal entry on January 2, 2014.
• The e-mails indicate an agreement was reached with respect to an entry on January 9, 2014, but it is unclear from the evidence if that entry actually occurred.
• It is not clear if the entry that occurred on January 16, 2014, was an illegal entry or not. The e-mail from the Landlord seeking entry was sent less than 24 hours prior to the proposed entry but both Tenants were home when that entry occurred. The first-named Tenant above was on her way out the door for a business trip. This was the occasion when the Landlord told the second-named Tenant above the Tenants were being evicted. It is unclear from the evidence if the Tenants let the Landlord in or not, but from the narrative attached to the application it seems likely this is what occurred."
(7)
"34. The right to enter on notice is restricted to one of the listed purposes for notice set out in ss. 27(1) and (2). Parties can add to the list of permitted purposes by setting out additional reasonable reasons for entry in their tenancy agreement but otherwise, the purpose of the entry must be listed in section 27.
35. Here, the tenancy agreement between the parties did not add additional reasonable grounds of entry so the Landlords were restricted in their right to serve notice to enter in that entry had to be for one of the listed purposes in s. 27.
36. Although s. 27(2) permits a landlord or an authorised real estate agent to enter to show the rental unit to prospective purchasers, it does not include agents coming to appraise the property. That is not a permitted purpose.
37. Further, s. 27(2) specifically says that to show the unit to prospective purchasers the landlord or real estate agent must give a minimum of 24 hours advance written notice to the tenant.
38. What this means is that when the Landlord’s realtor telephoned the Tenant to tell her about a showing - that was not permissible notice because s. 27(2) says notice must be in writing.
39. In addition, section 191 sets out the permissible methods of giving written notice. E-mail and text are not permissible methods of service. That being said, s. 191(2) says that if a notice is served by a different method, then it will be deemed to have been validly given if it can be proven it came to the recipient’s attention within the required time period.
40. So this also means that all of the texts or e-mails sent to the Tenant by the realtor with respect to showings were not proper notice unless the Landlords can prove the Tenant received the texts and e-mails at least 24 hours prior to the showing itself. As the Landlords pretty much have no way of knowing when the Tenant actually looked at her texts or e-mails, the evidence supports the conclusion that between mid-December, 2015 and mid-March, 2016 there were at least 80 illegal entries into the rental unit."
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