Is the standard for serving former tenants higher? When does service by email qualify for L10 purposes?

Summary:

1. How to apply to collect money a former tenant owes in general.

2. Does the new L10 application require a higher standard for service by email?

Introduction:

If the former tenant vacated on or after September 1, 2021, the landlord may file (within 1 year after the former tenant vacated) an L10 application at the LTB to collect money the former tenant owes.

The reasons for collecting money a former tenant owes may include:

Rent,

Compensation for living in the rental unit after the tenancy was terminated,

Charges related to NSF cheques,

Unpaid utility bills (heat, electricity, water),

Undue damage to the rental unit,

Costs the landlord incurred because the former tenant or someone else visiting or living in the rental unit substantially interfered with the landlord's reasonable enjoyment or lawful right, privilege or interest (e.g. charges to the fire department for pulling fire alarm for no reason, pest control charges for not following pest control protocol and requiring additional treatments, etc).

1.
From LTB Brochure: "Collecting Money a Former Tenant Owes":

"How to Apply to Collect Money a Former Tenant Owes

Step to Complete	When to Complete the Step
1. Read the instructions for completing Form L10: Application to Collect Money a Former Tenant Owes	No prescribed timeline
2. Submit the completed Form L10: Application to Collect Money a Former Tenant Owes to the LTB.	Up to one year after the tenant moved out
3. The LTB will send you a Notice of Hearing.	No prescribed timeline
4. Serve your former tenant the application and Notice of Hearing using one of the approved methods.	At least 30 days before the hearing
5. If you can’t serve your former tenant using one of the approved methods, submit a Request to use Alternative Service Method to the LTB. (*)	At least 40 days before the hearing
6. Submit the Serving a Former Tenant or a Tenant no Longer in Possession of the Rental Unit to the LTB.	At least 20 days before the hearing
7. Provide the former tenant and the LTB with copies of all your evidence. Examples of evidence include: If you are claiming unpaid utilities, send copies of utility bills and a copy of the tenancy agreement which required the tenant to pay utilities to your former tenant and the LTB. If you are claiming damages, provide evidence of the damage and your repair and replacement costs to the tenant and the LTB.	At least 7 days before the hearing

Serving your Application and Notice of Hearing

You must serve each former tenant with the L10 Application and Notice of Hearing in one of the following ways:

• Hand the documents to the former tenant
• Hand the documents to an adult at the former tenant’s current residence
• Send the documents by mail to the former tenant’s current residence
• Send the documents by courier to the former tenant’s current residence
• Leave the documents at the place where mail is ordinarily delivered at the former tenant’s current residence
• Slide the documents under the door or put them through the mail slot in the door at the former tenant’s current residence
• Email the former tenant, if:
  1. during the tenancy the former tenant agreed in writing to receive documents by email, and
  2. you can prove the former tenant received the documents by email

At the hearing you may be asked to explain how you determined the former tenant’s current address. Remember that you can’t leave the tenant’s copy at the rental unit because they no longer live there.

If you can’t give the former tenant the application and the Notice of Hearing using any of methods listed above but believe you can do so using a different method, you may submit a Request to use Alternative Service to the LTB. You must submit this request at least 40 days before the scheduled hearing. An LTB Member will consider your request.

Once you have given the former tenant the application and the Notice of Hearing, you must complete a Serving a Former Tenant or a Tenant no Longer in Possession of the Rental Unit and submit it to the LTB at least 20 days before the hearing. If you don’t, the LTB may cancel your hearing and close your file. If this happens your filing fee will not be refunded."

https://tribunalsontario.ca/documents/ltb/Brochures/Collecting%20Money%20a%20Former%20Tenant%20Owes%20%28EN%29.html

(*) Request to Use Alternative Service form asks:

"Explain how you have already tried to serve the other party. You must have already tried to serve the other party using the regular methods before making this request.

What alternative method of service would you like to use? Explain why you think the party will receive the documents using this method. For example, if you want to use email, explain why you believe the party uses the proposed email address and will receive the document."

_________________________________________

2.
Does the new L10 application (for collecting from a former tenant) require a higher standard for service by email?

The new LTB Brochures "Collecting Money a Former Tenant Owes" and "How to Serve a Landlord or Tenant with Documents" and L10 Instructions mention acceptable methods of service for L10 applications to collect money that a former tenant owes.

These documents mention that email is acceptable if during the tenancy the former tenant agreed in writing to service by email AND the landlord can prove that the tenant received the documents by email:

• "Email the documents to the former tenant if:
  • during the tenancy the former tenant agreed in writing to receive documents by email (e.g., in the standard lease or by signing the Consent to Service by Email); and
  • you can prove the former tenant received the document(s) by email."

https://tribunalsontario.ca/documents/ltb/Brochures/How%20to%20Serve%20a%20Landlord%20or%20Tenant%20with%20Documents%20(EN).html#sec7

- This seems quite different from rules for service by email that we see for ongoing tenancies. For ongoing tenancies, there is Rule 3 of the LTB Rules of Procedure (which allows service by email with tenant's unrevoked written consent), and there is also RTA subsection 191(2) (which makes "invalid" methods of service "valid" if it is proven that the contents of the notice actually came to the intended recipient's attention in time).

For ongoing tenancies EITHER / OR would qualify:

I.e. for ongoing tenancies, if the tenant consented to service by email, it would be deemed served (under Rule 3 of the LTB Rules of Procedure) on the same day when the email was sent, even if the tenant didn't actually receive the email. OR if the tenant didn't consent to service by email, but the landlord can prove that the contents actually came to the tenant's attention it in time, it would be deemed "validly given" under RTA subsection 191(2).

Whereas for former tenancies, seemingly BOTH conditions need to be met.

(And let's not forget that, even without consent to service by email, the landlord may be able to use email via a Request to Use Alternative Service in some situations.)

What do you think about this difference in language for ongoing tenancies and for former tenancies (L10)? Do you think that adjudicators will strictly demand for L10 applications to prove BOTH written consent to service by email AND proof that the former tenant received the email? And what will qualify as proof of receipt if the former tenant does not respond to the email?

https://tribunalsontario.ca/documents/ltb/Brochures/How%20to%20Serve%20a%20Landlord%20or%20Tenant%20with%20Documents%20(EN).html#sec7

More information on service by email for ongoing tenancies:

Can a notice of termination be served by email?

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

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.