Here is an interesting LTB ruling where the tenant issued an informal and invalid notice of termination following an N12 (the N12 ended up being invalid), yet the tenant's notice was enforced later via an L3 application, despite the tenant's claim of duress.
The tenant's letter responding to the landlord's invalid N12 was deemed to form a "substantial agreement to terminate the tenancy" (see para. 21).
The ruling highlights the importance of getting legal advice early.
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Highlights:
Shaul v Gavrilov, 2020 CanLII 117693 (ON LTB), <https://canlii.ca/t/jgl24>
"6. After he received the N12 Notice, the Tenant wrote a letter to the Landlord to confirm its receipt and to indicate the date that he preferred to vacate the rental unit. That letter, dated December 20, 2019, listed both parties by name as well as the address of the rental unit and was signed by the Tenant.
7. In the letter, the Tenant noted that the Landlord had incorrectly provided a termination date of February 28, 2020 on the N12 Notice and reminded the Landlord that the last day of February, 2020 was February 29, 2020:
I have received your notice of the end of Tenancy on December/20/2019, indicating the last day of tenancy February 28/2020.
I will be moving out on February/29/2020, as the last day of the month is February 29 in the year 2020.
As you may be aware, the Landlord has to pay to Tenant one month rent as compensation.
There for [sic], please apply this compensation towards January 2020 rent. My last month rent deposit will cover February rent.
8. Despite the unambiguous contents of the above letter, the Tenant emphasized at the hearing that he did not particularly want to move out of the rental unit until the end of the fixed term of the lease. The building is conveniently located and his three children live nearby.
9. The day after he sent the letter, the Tenant hired his Representative. A few days later, he attended at the Board’s Toronto North Regional office to determine his rights and options in light of the N12 Notice. There, he received information that he was not required to vacate the rental unit pursuant to the notice, but could instead contest the termination of the tenancy.
[...]
12. The Tenant’s suspicions that the N12 Notice may have been defective were also confirmed during his consultation at the Board office. Specifically, subsection 48(2) of the Act sets out several mandatory requirements of a notice served pursuant to subsection 48(1):
48. (2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.
13. Not only did the Landlord fail to list a termination date at the end of a rental period, because the tenancy consisted of a fixed term, the lawful termination date would have been the last day of the fixed term. The Landlord could not have relied upon a defective N12 Notice to terminate the tenancy.
14. However, the validity of the Tenant’s own notice of termination is also relevant. Subsection 43(1) of the Act sets out the required elements of a valid notice of termination given by either a landlord or a tenant:
43. (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,
(a) identify the rental unit for which the notice is given;
(b) state the date on which the tenancy is to terminate; and
(c) be signed by the person giving the notice, or the person’s agent.
15. The Tenant’s letter dated December 20, 2019 included all of the elements required by subparagraphs (a) through (c): it identified the rental unit, stated the date on which the tenancy was to terminate and was signed by the Tenant.
16. While the wording of subsection 43(1) would appear to render invalid any notice not in a form approved by the Board even if it included all of the information listed in the subparagraphs, section 212 of the Act provides that substantial compliance is sufficient for notices under the Act:
212. Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.
17. In other words, a form may be produced by a party, rather than using a pre-printed from form the Board.1 However, section 212 refers only to the “contents” of forms, notices or documents and does not apply to the failure to meet the substantive requirements of the form in question. Ironically, like the Landlord, the Tenant failed to comply with section 44 of the Act with respect to the period of notice required for the termination of a fixed term tenancy. Subsection 44(4) of the Act with respect to the period of notice for the fixed tenancy:
44. (4) A notice under section 47, 58 or 144 to terminate a tenancy for a fixed term shall be given at least 60 days before the expiration date specified in the tenancy agreement, to be effective on that expiration date.
18. As the tenancy ends on February 28, 2022, the Tenant’s notice of termination is invalid as it lists a termination date of February 29, 2020. In addition, while subsection 48(3) of the Act permits a tenant who receives an N12 Notice under subsection 48(1) to terminate the tenancy effective on a specified date earlier than the date set out in the landlord’s notice, this provision does not assist the Tenant as he selected a termination date one day later than the date listed in the Landlord’s N12 Notice.
19. However, paragraph (b) of subsection 77(1) of the Act does not require that the Tenant’s notice of termination be valid, only that he failed to vacate the rental unit pursuant to that notice:
77. (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy and evicting the tenant if,
(a) the landlord and tenant have entered into an agreement to terminate the tenancy; or
(b) the tenant has given the landlord notice of termination of the tenancy.
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1 Golden Elms Ltd. v. Lamarsh (27 June 2003), File No. TNL-44976, Mervin (O.R.H.T.); Palumbo Construction v.
Buchanan (14 September 2001), File No. EAL-22708 Goodchild (O.R.H.T.’).
20. The conduct of the parties in late December, 2019 may shed some light on their intent in issuing their respective notices of termination. Subsection 202(1) of the Act provides some assistance in this regard and provides as follows:
202. (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,
(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and
(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.
21. To that end, I find that the timing of the Tenant’s letter to the Landlord, sent on the same day that he received the Landlord’s notice of termination conveys a substantial agreement to terminate the tenancy. The Tenant effectively agreed to comply with the Landlord’s notice by issuing his own parallel notice of termination that served as a counteroffer with respect to the specific date of termination that adjusted for the Landlord’s oversight over the number of days in a February leap year.
22. In response, the Landlord accepted the Tenant’s revised termination date by offering no resistance to the correction. There was no evidence that, upon receipt of the December 20, 2019 letter, he insisted upon termination on February 28, 2020 rather than the following day. As a result, I find that the parties substantially and mutually agreed through their two notices of termination to terminate the tenancy on the last day of February, 2020. Whatever the Landlord’s motivations in serving the N12 Notice, the Tenant essentially agreed to the termination. The Landlord subsequently withdrew the N12 Notice and never filed an L2 Application to terminate the tenancy for his own residential use. This may be because he became aware of its defects or more likely because, in light of the Tenant’s own concurrent notice, the N12 Notice was no longer required.
23. However, as noted above, the Tenant subsequently entertained second thoughts over this de facto agreement to end the tenancy and decided to explore his options to get out of the termination. To that end, the Tenant took the position that order TNL-24636-20 dated March 5, 2020 should be set aside as he was under “great pressure” from the Landlord to give his notice of termination. This argument formed the basis of the Tenant’s motion to set aside the order.
24. However, this “great pressure” consisted of the Landlord advising that he would “take the Tenant to Court” if he did not pay the outstanding arrears. The Landlord’s spouse also sent a number of text messages to the Tenant with much the same warning that the Landlord was prepared to exercise his rights under the Act to terminate the tenancy for non-payment of rent. There was no evidence that these warnings were threatening or abusive in nature or that the Landlord had in any way coerced the Tenant into writing his letter of December 20, 2019. While the Tenant’s Legal Representative vaguely alluded to disabilities on the part of the Tenant, there was no evidence to suggest that the Landlord unconscionably preyed upon some frailty or weakness of the Tenant to overpower his will.
25. Similarly, while the Tenant speaks with a pronounced accent, there was no suggestion that he misunderstood the content and purpose of the Landlord’s notice due to language issues or any other disadvantage. On the contrary, even before he attended at the Board’s Regional office, he quite accurately advised the Landlord of his compensation obligations under section 48.1 of the Act and noted that the last month’s rent deposit must be applied to the last month of the tenancy pursuant to subsection 106(10) of the Act. The Landlord would not have reasonably inferred from the letter that the Tenant was confused with regard to his options. I find that the present facts are therefore entirely distinguishable to that in Metropolitan Toronto Housing Authority v. Reid, in which the Court rejected an agreement to terminate the tenancy due to the “very substantial inequality” in bargaining power.2
26. Indeed, the Landlord was likely unaware of the defects in his own notice of termination until they were revealed to him by the Tenant and at least initially considered this document sufficient to result in eviction. As a result, I do not find that the Tenant demonstrated on the balance of probabilities that the Tenant gave his notice of termination under duress as he claimed.
27. Rather, I find that the Tenant simply did not bother to educate himself on his rights under the Act after receiving the N12 Notice either by reading it in full or by seeking legal advice before issuing his own notice of termination on December 20, 2019. There was also no evidence that the Tenant made any effort to negotiate with the Landlord to rescind the notice of termination before the Landlord filed the L3 Application. He simply stayed in the rental unit and refused to pay rent.
28. There is no provision in the Act that would allow the Tenant to rescind his notice of termination merely based upon second thoughts or the realization that he issued the notice in haste before informing himself of the applicable legislation. Similarly, he cannot rely upon his own lack of diligence in issuing the notice before educating himself with respect to his rights and options under the Act. As a result, I find that the Landlord was entitled to rely upon the Tenant’s letter of December 20, 2019 to terminate the tenancy and to file the L3 Application when the Tenant failed to comply with it.
29. Having regard to all of the circumstances, I therefore find that it would not be fair to set aside order TNL-24636-20, issued on March 5, 2020."
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