Service by mail - does it matter if / when mail was received?

It would normally not matter when the notice was received, but it would only matter when it was sent, because RTA subection 191(3) automatically deems a document given on the 5th day after mailing it. It is important to use Certificates of Service (when applicable) as soon as the documents are served and possibly use some ways of corroborating this, just in case, e.g. time-stamped photos / videos / witness accounts, etc.

The exception would be if the method of service is "improper" (not in accordance with the Act and Rules), and the sender is still trying to prove that the document actually came to the intended recipient's attention in time, so proving the receipt of the document within the required time period would be very important then (see RTA subsection 191(2)).

More on this topic:

If you received a notice by text, Facebook, WhatsApp, etc, can it be valid?

Can a notice of termination be served by email?

From Rule 3 of the LTB Rules of Procedure:

"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; day it was given to the person when delivered by hand."

Let's look at some examples:

1)

Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289 (CanLII), <https://canlii.ca/t/h677c>

[48]           There is a related issue as to whether TCHC served notice of rent increases. As indicated above, after closing submissions and before rendering her decision, the Board reconvened the hearing to hear evidence on that issue. The Tenant gave evidence that she had not received the notices. The evidence on behalf of TCHC was that the notices had been given out to a third party mailing service.

 

[49]           The Board held as follows:

13.       The issue of service is not whether the Tenant received the notices.   Rather, the issue is whether the Landlord served them.

14.      Subsection 191(1) of the Act says that a document like a notice of rent increase “is sufficiently given to a person” by way of a number of permissible methods including many methods other than personal service. Some of those permissible methods are listed in the Act and some can be found in the Board’s Rules. What subsection 191(1) means is that a [sic] long as someone like the Landlord in this case sends the document to the Tenant by one of the permissible methods, then under the Act the Tenant has been served whether she actually received the document or not because it was “sufficiently given” if served in accordance with section 191.

15.      This interpretation of subsection 191(1) is supported by the other provisions of the section.   Subsection 191(3) says when a notice is served by mail (which is a permissible method of service) it is deemed to have been received five days after mailing.  Clearly, it is not unknown for individuals not to receive things that are mailed to them but under subsection 191(3), as long as it was mailed the recipient is deemed to have received it.  Subsection 191(2) says that when a notice is not given in accordance with one of the permissible methods it “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”.  In other words the only time the Landlord has to establish the Tenant actually received the notice of termination is when it fails to use one of the methods of service that are permissible under the Act and Rules.  As such, the Landlord does not have to establish the notice was received if properly served.

16.      Given the testimony of ME, I find it more likely than not, the Landlord served the Notices of Rent Increase for 2013, 2014 and 2015.  I would also note that it was the Tenant who produce the NORI dated December 21, 2011, the notice saying that the rent had decreased.  That is consistent with the Landlord’s evidence of mailing.

[50]           Those paragraphs reflect the analysis by the Board of sections of its home statute and rules.  I am not persuaded that the Board erred in law in the interpretation of s. 191.   Furthermore, the decision as to service of the notices in this case was a decision of mixed fact and law which is not reviewable on appeal."

2) 

CEL-26969-12-RV (Re), 2013 CanLII 18721 (ON LTB), <https://canlii.ca/t/fx16w>

"The Tenants stated that they picked up the Form N12 from the post office on November 6, 2012 as evidenced from MMA’s signature on Exhibit L3.  The Tenants argue that the termination date of December 31, 2012, as listed on the Form N12, is not at least 60 days from the date they received the notice, being November 6, 2012. 

[...] 

I find that the Notice to Terminate a Tenancy at the End of the Term for Landlord’s or Purchaser’s Own Use, Form N12 is valid and was served in accordance with the Board’s Rules of Procedure.

The termination date on the Form N12 cannot be earlier than 60 days after the date the landlord gives the tenant this notice.  The Landlord testified that the Form N12 was served to the Tenants through his agent, BJ, by registered mail on October 19, 2012 and presented the original receipt from Canada Post, Exhibit L2, showing it was received by Canada Post on October 19, 2012.  Pursuant to Rule 5.4 of the Landlord and Tenant Board’s Rules of Practice and subsection 191(3) of the Residential Tenancies Act, 2006 (the ‘Act’), a notice that is given by mail is deemed to have been given to the Tenants on the fifth day after mailing.  As such, I find the Form N12 was deemed served to the Tenants on October 24, 2012.

The Tenant MMA argues that she was out of town and did not receive it or pick it up until November 6, 2012.  I do not find that the Tenants’ delay in retrieving a document from the post office would invalidate the service of the Form N12.  The Landlord complied with the rules regarding service of the Form N12.  Moreover, the other Tenant, DM, was not out of town and she could have attended to pick up the document from Canada Post.

 

Therefore, I find that the Notice to Terminate a Tenancy at the End of the Term for Landlord’s or Purchaser’s Own Use, Form N12 was served in accordance with the Rules and is therefore valid." 

3) 

TSL-62551-15 (Re), 2015 CanLII 59160 (ON LTB), <https://canlii.ca/t/gl8cl>

"4.   It was the evidence of the Tenant that he did not have sixty days notice to terminate the tenancy because he received the Form N12 Notice of Termination in his mailbox on May 5, 2015. 5.   It was the evidence of Landlord, MH that he served the Form N12 Notice of Termination on April 29, 2015 by leaving the documents in the Tenant’s mail box. 6.   The issue of service is not when the Tenant received or picked up the documents from his mailbox. Rather, the issue is when the Landlords delivered the document. Given the certificate of service filed with the Board and the testimony of MH, I find that it is more likely than not, the Landlords provided proper service of the Form N12. I say this because I have no reason to doubt that MH did not serve the documents on April 29, 2015."

4)

Lo v Bondzie, 2021 CanLII 139899 (ON LTB), <https://canlii.ca/t/jltgq>

"2. The Landlord’s legal representative, who served the N8, stated that he served a ledger along with the N8 notice. Submitted into evidence was the package that was served on the Tenants. There was a cover letter attaching two certificates of service, an N4 notice, and an N8 notice with an attachment titled “Rent Payment Record” showing the dates the Tenants paid rent and whether it was late or on time. The cover letter stated that there were eight total pages including the cover letter.

3. Pursuant to Rule 3.8 of the Board’s Rules of Procedure and section 191 of the Residential Tenancies Act, 2006, a notice or document given by mail shall be deemed to have been given on the fifth day after mailing. Two important points come out of this provision. First, service of a notice is effective five days after the document is placed in the mail. Second, service by mail is deemed effective, on the fifth day. The word “deemed” indicates that when a document is mailed, it is considered served on the fifth day regardless of whether the person it is intended for actually received it. I am satisfied by the Landlord’s representative’s evidence that the notice was served by him via mail on May 19, 2021. I am also satisfied by the package submitted into evidence that the appendix was attached to the N8 notice. Therefore, since I am satisfied that the complete notice was served by mail, it is considered served five days after it was placed in the mail."

5)

Mohammad v Poorsarwar, 2021 CanLII 141996 (ON LTB), <https://canlii.ca/t/jm8tx>

"Preliminary Issues:

1. At the beginning of the hearing, the Tenant's Legal Representative submitted that the Landlord’s Application ought to be dismissed. She submitted that the Landlord’s Application to End a Tenancy and Evict a Tenant (the ‘L2 Application’) was filed with the Landlord Tenant Board (the ‘Board’) on December 23, 2020.

2. She then directed me to the Landlord’s Certificate of Service for the Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit (the ‘N12 Notice’). The Certificate of Service stated that the N12 Notice was served on the Tenants via mail on December 24, 2020, therefore, after the Application was filed with the Board.

3. The Tenant's Legal Representative submitted that the Landlord did not comply with the Board’s Rules of Procedure, specifically Rule 3.9, which states that documents are considered served on the fifth day after mailing. Since the Landlord mailed the N12

Notice, she argued that the N12 was therefore served on December 29, 2020, several days after the L2 Application was filed.

4. Based on this, the Tenant's Legal Representative requested that the Board dismiss the Landlord’s Application for failure to serve the Tenants with notice in compliance with the Rules. The Tenant's Legal Representative supported this position with caselaw.

5. The Landlord's Legal Representative submitted that the N12 Notice was served by Xpress Post and Normal mail on December 23, 2020. Based on this, he argued that the Tenants received the Notice within twenty-four hours, and therefore the N12 was served on the 23rd, despite the information in the Certificate of Service stating it was served on the 24th.

6. The Landlord's Legal Representative submitted that the caselaw provided was from the “old” version of the Residential Tenancies Act, 2006 (the ‘Act’). He also directed me to caselaw and reminded me that the Board’s decisions are not binding on members.

7. He also argued that since the Certificate of Service stated the N12 was served on the 24th of December 2020, based on section 69(1) of the Act, it was “deemed” served, and thereby, prima facci, shows notice was given. Therefore, deemed service should be accounted for by the Board. He also argued that nothing in the Act states documents must be served or ordered deemed served to apply.

8. He concluded by arguing that should the Board consider the Tenant's Legal Representative’s request to dismiss the Landlord’s application, it would put undue prejudice on the Landlord. Furthermore, it would be unfair since this would essentially by giving the Tenants an additional five days of notice.

9. After considering the submissions and arguments of the parties, I am not satisfied that the Landlord’s Application and Notice complied with the Act and am therefore dismissing it.

10. I direct the Landlord's Legal Representative to section 69 of the Act, which states:

“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 or the Tenant Protection Act, 1997.”

11. In this case, the Application was filed with the Board on December 23, 2020. However, the Landlord’s own Certificate of Service states the N12 was served on December 24, 2020, therefore, after the Notice was served. This action does not comply with section 69 of the Act, never mind considering the five days required for service completed by mail, as the Landlord did.

12. Though I appreciate the Landlord's Legal Representative’s argument regarding deemed service, it is not the place of the Board to determine that parties can sometimes ignore the requirements of the Act, specifically to file the Application after the Notice has been served.

13. This position is further supported by the Board’s Interpretation Guideline 10: Procedural Issues Regarding Eviction Applications. Under the heading “Adequacy of the Notice of Termination”, it states:

“The Notice of Termination (the Notice) is an essential step in the landlord's process of evicting a tenant1 (except section 77 and 78 applications). The Board will not terminate a tenancy and order eviction of the tenant unless the tenant has received a valid Notice of Termination from the landlord and the landlord has successfully proved the ground claimed in the Notice at the hearing of the application.

If the document given to the tenant or the method or time of service are defective, in most cases this will result in dismissal of the application or the denial of the eviction portion of the application.”

14. Under the heading “Adequacy of Service of the Notice of Termination”, it states:

“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,”

15. In this case, based on the above, it is clear that the Landlord served the Tenant after the Board received the Landlord’s application Based on Interpretation Guideline 10, I cannot proceed with considering the application, as it was served after the Landlord served the Tenants with the N12 Notice, which does not follow the requirements of the Act or the Rules.

16. Therefore, this application is dismissed."

6)

Rpms Property Management Services Inc v Tzouropoulos, 2021 CanLII 88095 (ON LTB), <https://canlii.ca/t/jj573>

"8. The Tenant testified that he never received the Notice of Termination and that he checks his mailbox meticulously.

9. Under s. 191(3) of the Residential Tenancies Act, 2006, (the ‘Act’) a notice or document is deemed to have been sufficiently given on the fifth day after mailing.

10. As upheld by the Divisional Court in Toronto Community Housing Corp. v Zelsman, 2017 ONSC 5289, the issue of service with respect to a notice (in that case notices of rent increase) is not whether the Tenant received a notice but instead whether the Landlord served them.

11. The Landlord filed a Certificate of Service indicating that the Tenant was served with the Notice of Termination by sending the document via mail or Xpresspost to the rental unit on July 8, 2020.

12. The individual who swore the Certificate of Service, Ms. Arta Kadenaj, testified that she prepared the Tenant’s Notice of Termination and mailed it on July 8, 2020 to the Tenant’s rental unit. She also testified that the Notice of Termination was never returned. Her testimony is credible and I believe that she mailed the Notice of Termination to the Tenant and that the Landlord had no reason to believe that the Notice of Termination was not received until the hearing.

13. The Tenant does not deny that the Notice of Termination was mailed to him, but his testimony was that he did not receive it. He speculated that it might have gone missing through error such as through placement in another’s mailbox.

14. On cross-examination, the Tenant’s evidence was that he did not receive the Landlord’s Application (L1) which the Landlord's Legal Representative advised the Tenant was served on August 24, 2020. How this was served is not known.

15. However, the Tenant testified that he received the Notice of Hearing from the Board. The Notice of Hearing was mailed to the same address as the Notice of Termination.

16. The Tenant further testified that when he received the Notice of Hearing he immediately made a request for the Notice of Termination asking in person and on the phone speaking once with a woman named Laura at the management office and another time with a woman, whose name he could not recall, at the front desk. This is consistent with how an individual who is advised they may be evicted by receipt of a Notice of Hearing may react as the Tenant sought out more information from his Landlord.

17. Nonetheless, in TCHC v Zelsman, supra, the Divisional Court affirmed the analysis of the Board of the Act and the Board’s rules with respect to service as follows:

15 Subsection 191(1) of the Act says that a document like a notice of rent increase “is sufficiently given to a person” by way of a number of permissible methods including many methods other than personal service. Some of those permissible methods are listed in the Act and some can be found in the Board’s Rules. What subsection 191(1) means is that a [sic] long as someone like the Landlord in this case sends the document to the Tenant by one of the permissible methods, then under the Act the Tenant has been served whether she actually received the document or not because it was “sufficiently given” if served in accordance with section 191.

16 This interpretation of subsection 191(1) is supported by the other provisions of the section. Subsection 191(3) says when a notice is served by mail (which is a permissible method of service) it is deemed to have been received five days after mailing. Clearly, it is not unknown for individuals not to receive things that are mailed to them but under subsection 191(3), as long as it was mailed the recipient is deemed to have received it. Subsection 191(2) says that when a notice is not given in accordance with one of the permissible methods it “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”. In other words the only time the Landlord has to establish the Tenant actually received the notice of termination is when it fails to use one of the methods of service that are permissible under the Act and Rules. As such, the Landlord does not have to establish the notice was received if properly served.

18. The possibility remains that where service is deemed, on the facts of a case it may be proven that service was not actually effected. However, the evidence must be sufficient to rebut the presumption of deemed service.

19. On the facts of this case, I find that the Tenant has not provided sufficient evidence to rebut the deemed service. While it is difficult to prove that something did not happen, if there were issues with the Tenant’s mail it is anticipated that other documents would not have been received outside one or two documents from the Landlord. As it stands, the Tenant received the Notice of Hearing from the Board via mail.

20. As a result, on the issue of whether the Tenant received the Notice of Termination I find that service was deemed effected five days after the Notice of Termination was mailed to the Tenant’s address."

7)

TST-57059-14-RV (Re), 2015 CanLII 36970 (ON LTB), <https://canlii.ca/t/gjt6x>

"60. Subsection 191(3) says that if service is by mail it is deemed to be received five days after mailing. Actual receipt is not required.

61. Finally, subsection 191(2) says that a notice or document that is not given by one of the permitted methods of service 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. In other words, proof of actual notice is only relevant under the Act for alternative methods of service. That is not applicable here as I am satisfied one of the listed methods of service was used.

62. Section 191 indicates that the legislature put its mind to the issue of service and decided that actual knowledge or receipt of a notice is not required. The proposition put forward by the Tenant to the contrary is not supported by the wording of the Act. As the Landlord gave notice in accordance with the Act and went beyond what the Act requires by posting notices in the common area and serving multiple notices over an extended period of time, I am satisfied that the Landlord’s actions in providing notice were reasonable in all the circumstances."

____________________

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