Can notices of termination be shortened contractually?

Occasionally we get questions about whether or not notices of termination can be shortened contractually.

First, there is already an option to terminate early via a mutual agreement of termination (e.g. N11 form), which can be signed for any date in the future, as long as it is not signed at the time when the tenancy agreement is entered into or as a condition of entering into the tenancy agreement (see RTA subsection 37(5)). If both parties agree to terminate, the tenant would owe rent only up until the termination date on the agreement of termination (N11), assuming the tenant vacates on or by that date.

However, what if the tenancy agreement itself has a lease clause that would allow for a landlord or a tenant to terminate the tenancy with a shorter notice? Would this clause be valid and enforceable?

1)

First, it is obvious that the answer for landlords' notices of termination is "no": each section on eviction in the RTA specifies minimum notices for different grounds, and if the tenant doesn't vacate, the landlord has to file with the Board (RTA ss. 43(2)(b)), and the tenant is entitled to dispute the landlord's application at the LTB (RTA ss. 43(2)(c)). Besides, the whole point of RTA section 37 (security of tenure) is that "a tenancy may be terminated only in accordance with this Act". And RTA sections 3 and 4 make it generally impossible to contract out of statutory rights and obligations under the Act.

2)

What about tenants?

Technically, the rules are the same, including inability to contract out of statutory rights and obligations under the RTA (RTA s. 3 and RTA s. 4), including minimum notices.

One might argue that, despite minimum statutory requirements for tenant's notices of termination (which are spelled out in RTA section 44), in practice, tenants can vacate early anyway (there is no mechanism of keeping tenants if they want to vacate). (See more on this in this post.) And the landlord would just be able to sue them for loss of rental income as a result of breach of contract, as long as the landlord can show that the landlord minimized his losses for the tenant's breach (RTA s. 16, RTA ss. 88(4)) by actively trying to re-rent the unit and no double-dipping occurred (RTA ss. 88(3)). (See more on this in this post.)

So could a tenant and a landlord agree in their lease that the tenant can provide a shorter (e.g. 30 days') notice of termination? Would this clause be valid and enforceable?

A pretty old case in Pinheiro v. Bowes, 1994 CanLII 7479 (ON SC), <https://canlii.ca/t/1wc1r> (which, by the way, was used later in 1086891 Ontario Inc. v. Barber, 2007 CanLII 18734 (ON SCDC), <https://canlii.ca/t/1rldv>, which confirmed that landlords cannot contract out of their statutory right to increase rent every 12 months, as per RTA s. 119) analyzed this specific scenario in detail, and the answer seems to be "no", i.e. minimum notice requirements in the RTA would trump the lease clause.

"[11] I must express some discomfiture at permitting a landlord to rely on the statutorily created invalidation of that landlord’s own lease proviso, but it is not for a judge to run roughshod over a statute in an effort to protect a tenant.

[...]

[14] In my view, while s. 99 was largely created to protect tenants, it cannot be said to be contrary to public policy to enforce it in favour of a landlord. Section 99 provides a broadly gauged protective rule for landlord-tenant relationships and must be enforced as it plainly reads and provides. On its face, it invalidates the lease proviso in issue and makes the tenant liable for one month’s additional rent."

______________________________________

Pinheiro v. Bowes, 1994 CanLII 7479 (ON SC), <https://canlii.ca/t/1wc1r>

"[1] KILLEEN J.:—This application by the landlord under s. 113 of the Landlord and Tenant Act, R.S.O. 1990, c. L.7, has been narrowed down, by agreement, to one issue, namely, whether a contractual provision as to notice of termination may override s. 80(1) of the Act.

The agreed facts

[2] The parties entered a lease which contained the following provisions as to notice of termination:

19. (a) If either the Tenant or the Landlord wishes to terminate the tenancy at the end of the term created by this agreement then he will give notice to that effect in writing delivered personally by hand or by Her Majesty’s mail not less than 60 days prior to the expiration of this agreement.

(b) If either party has given such notice the rented premises may be shown to prospective tenants at all reasonable hours after delivery of the notice.

(c) If no such notice pursuant to this paragraph has been delivered by either party, then the Tenant shall become a monthly tenant under the terms and conditions herein set out, providing that nothing herein shall prevent the parties agreeing to any other terms for said monthly tenancy.

(d) The Landlord and Tenant further agree that the monthly tenancy created by (c) may be terminated by giving written notice to terminate on or before the last day of one month of the tenancy to be effective on the last day of the following month of the tenancy.

[3] It is acknowledged that, after the specified term of this lease, the tenant became a monthly tenant by operation of para. 19(c) above. Thereafter, the tenant stayed in the premises for some time and, on October 27, 1993, served a written notice purporting to terminate the tenancy as of November 30, 1993. In doing so, the tenant thought that she was lawfully complying with the one-month notice proviso set out in para. 19(d) of the lease.

[4] If the tenant was entitled to rely on para. 19(d), then, of course, she owes nothing further to the landlord. If, however, that clause cannot be relied upon, then the tenant owes the landlord one additional month’s rent by virtue of s. 99 of the Act.

The resolution of the notice issue

[5] The parties acknowledge that two provisions of the Act must be considered in deciding the central issue of this case. These sections are as follows:

80(1) This Part applies to tenancies of residential premises and tenancy agreements despite any other Act or Parts I, II, or III of this Act and despite any agreement or waiver to the contrary except as specifically provided in this Part.

…

99(1) A notice to terminate a monthly tenancy shall be given not less than sixty days before the date the termination is specified to be effective and shall be specified to be effective on the last day of a month of the tenancy.

[6] Mr. Schlemmer, for the tenant, argues that s. 99, which creates a notice period of 60 days for monthly tenancies, does not bind the tenant in this case because of the express provision in the lease which permits termination on notice for the lesser period of 30 days.

[7] Mr. Schnurr, on the other hand, argues that s. 80(1), in clear and unambiguous language, invalidates the shorter one-month notice period in the lease for all purposes and, in combination with s. 99(1), effectively requires the tenant, or landlord, to give 60 days notice.

[8] At first blush, it may seem anomalous or even unjust to hold that a landlord may successfully argue the invalidity of a lease provision in a lease form which that landlord has proferred as a basis for a contractual bargain. Here, after all, the landlord has provided a lease form which permits either party to terminate a monthly tenancy on one month’s notice and not the longer period in s. 99(1) of the Act.

[9] Yet, s. 80(1) represents the legislative sticking point and it seems to be crystal clear in its intent. Section 80(1) says, in explicit terms, that every provision of Part IV applies to all residential tenancy agreements and that this is so “despite any agreement or waiver to the contrary except as specifically provided in this Part” (emphasis added).

[10] I can identify no ambiguity in s. 80(1) and the parties acknowledge that there is nothing in Part IV which permits any agreement or waiver to the contrary.

[11] I must express some discomfiture at permitting a landlord to rely on the statutorily created invalidation of that landlord’s own lease proviso, but it is not for a judge to run roughshod over a statute in an effort to protect a tenant.

[12] I realize that there is a host of arcane common law decisional authorities which permit a party for whose benefit a special protective clause was created to waive such clause and elect to carry on with a contract. Such waiver rulings are, however, a product of private contract principles and can have no pride of place where the legislature has spoken authoritatively and clearly the other way. There is nothing, for example, in the Interpretation Act, R.S.O. 1990, c. I.11, from which the tenant can draw comfort in her effort to rely on waiver or something like waiver.

[13] Judges must accept statutes as they find them if they are clear and unambiguous and catch the factual situation under consideration.

[14] In my view, while s. 99 was largely created to protect tenants, it cannot be said to be contrary to public policy to enforce it in favour of a landlord. Section 99 provides a broadly gauged protective rule for landlord-tenant relationships and must be enforced as it plainly reads and provides. On its face, it invalidates the lease proviso in issue and makes the tenant liable for one month’s additional rent. In the circumstances, there will be no order for costs.

Judgment accordingly."

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.

Preserving tenancy without reinstating occupancy? / Appeal of an Interim Order / Guillaume v. Barney Rivers Investments Inc, 2021

Update: https://residential-tenancies-ontario.blogspot.com/2022/02/a-case-about-restoring-possession.html

Here is an interesting recent case where the LTB issued an interim order "preserving the tenancy but dismissing the tenant's request to be re-admitted to the rented premises pending an urgent hearing before the Board scheduled to be heard on November 10, 2021".

The tenant appealed this decision, claiming that the LTB’s “actions” showed a lack of “procedural fairness”, that "it is inconsistent for the tenant to have her tenancy “maintained” and “preserved” by the LTB and yet not to be permitted to enjoy her rights as a tenant to live in the rented premises", etc.

The Divisional Court sided with the Board, primarily because the Divisional Court "will not ordinarily entertain an appeal from an interim or interlocutory ruling from the Board", but also for other reasons, for example, practical purpose and timing of the appeal, as well as:

"Ms Guillaume’s failure to give the landlord notice of her urgent request to be restored to her unit meant that the landlord would have been denied procedural fairness if the LTB had ordered Ms Guillaume restored to the premises. This was a consequence of Ms Guillaume’s decision not to give the landlord notice. The LTB was prepared to make a limited order against the landlord, even though it did not have notice, to preserve the status quo on an interim basis. In making the order that it did, the LTB was acting within a broad discretion accorded to it. Ms Guillaume’s argument that this was an error of law and unfair is undercut by the unfairness of not giving notice to the landlord, and Ms Guillaume is mistaken in believing that she has been restored to her rights as a tenant by the preservation of the rental unit for the purposes of the tenancy. In short, on the record before the LTB, the order that was made was within the LTB’s discretion. There was no error in law that is reviewable on appeal in this court."

Etc.

See details below.

Guillaume v. Barney Rivers Investments Inc., 2021 ONSC 7203 (CanLII), <https://canlii.ca/t/jk2q7>

____________________________

"[1]               The moving party, Ms Guillaume, appeals from an interim order of the Landlord and Tenant Board, preserving her tenancy but dismissing her request to be re-admitted to the rented premises pending an urgent hearing before the Board scheduled to be heard on November 10, 2021.  The Board’s interim order was made in the context of an urgent hearing initiated by Ms Guillaume before the Board brought without notice to the respondent landlord.

[2]               Ms Guillaume initiated her appeal in this court on October 15, 2021.  At my direction, court staff issued a notice pursuant to R.2.1.01 that the court is considering dismissing the appeal as frivolous, vexatious and/or an abuse of process.  Ms Guillaume was given the following explanation for this notice:

Justice Corbett directs me to advise you as follows:

The impugned order of the LTB declined to grant ex parte relief restoring Ms Guillaume to her rental unit.  Instead, the LTB directed an expedited hearing of the issue.  On the basis of the materials provided by the appellant, the expedited hearing is scheduled for November 10, 2021.

The court understands that Ms Guillaume disagrees with the LTB's interim order.  However, this court will not ordinarily entertain an appeal from an interim or interlocutory ruling from the Board.  This court ordinarily will only hear appeals from final orders from the Board.  The facts of the case at bar provide an illustration of one of the reasons for this principle.

Even on an expedited basis, this court would not be able to hear an appeal from the interim decision until late 2021 or early 2022.  By the time the appeal is heard, the Board's interim order will have become moot: the expedited Board hearing will have been heard and almost certainly will have been decided before this court could hear an appeal from the interim decision.

Second, this court could not easily hear a motion for interim relief on appeal prior to the Board hearing on November 10, 2021, and by the time such a motion could be heard in this court, this court would almost certainly dismiss the matter on the basis of prematurity and the availability of practical recourse before the Board on November 10, 2021.

Third, tribunals, like courts, are reluctant to grant substantive relief without notice to the other side.  The interim order of the Board balances the competing interests at play and, given the lack of notice to the landlord of the request for substantive relief, the Board's order for an expedited hearing is, on its face, well within the range of reasonable discretion afforded to the Board.

Taking all of these points into account, it appears evident that the proposed appeal is devoid of practical merit.  The Registrar is directed to give notice that the court is considering dismissing the appeal pursuant to R.2.1.01.  Responding parties are directed not to provide responding submissions to the appellant's submissions pursuant to R.2.1.01.

[3]               In response, Ms Guillaume wrote a letter of complaint to the Chief Justice of the Superior Court, threatened a complaint to the Ontario Judicial Council, and purported to “appeal” my “decision” to direct a notice be issued pursuant to R.2.1.01.  In a subsequent email, Ms Guillaume attached a copy of a letter to Member of Parliament Greg Furgus, asking him to investigate allegations of systemic racism Ms Guillaume alleges that she is facing in this court.  Following these communications from Ms Guillaume, at my direction court staff advised Ms Guillaume as follows on October 18, 2021:

At my direction the Registrar gave notice to Ms Guillaume that the court is considering dismissing her appeal pursuant to R.2.1.01.  As stated in the notice, Ms Guillaume has fifteen days in which to provide her submissions as to the R.2.1.01 issue.

Ms Guillaume has purported to seek a review or appeal the 2.1.01 direction.  A notice pursuant to R.2.1.01 is not subject to appeal or review.  A decision made to dismiss - or not to dismiss - the appeal pursuant to R.2.1.01 may be appealed or reviewed; the route of appeal depends on the nature of the order made.

Ms Guillaume may still make submissions on the R.2.1.01 issue within fifteen days of the email to her attaching the R.2.1.01 notice.

Aside from providing a response to the R.2.1.01 notice, Ms Guillaume should not otherwise communicate with the court.  In particular, Ms Guillaume is free to complain to her MPP, the Judicial Council, and/or to the Chief Justice, but it is not proper for her to copy these complaints to this court while the R.2.1.01 issue is pending decision.

Responding parties are again directed not to respond to these issues unless and until the court directs otherwise.

[4]               Ms Guillaume provided 15 pages of submissions in respect to the R.2.1.01 issue on October 27, 2021.  Ms Guillaume’s submissions do not directly address the concerns raised by the court in the directions accompanying the R.2.1.01 notice.  However, Ms Guillaume is self-represented, and the court will give her submissions a generous reading to assess whether this appeal should be dismissed pursuant to R.2.1.01.

[5]               In summary, Ms Guillaume argued as follows in her submissions:

(a)               the LTB decision was wrong and unfair in preserving her tenancy but not letting her move back into her rental unit pending the upcoming Board hearing.

(b)               the LTB’s “actions” showed a lack of “procedural fairness” which is “an error in law”.

(c)               the landlord illegally evicted the tenant, using self-help without a Board order for eviction.

(d)               the tenant has an “inherent right” to seek a court remedy where her “rights” have been “violated” by an inferior court or tribunal.

(e)               the tenant’s rights have been violated under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and under the Canadian Bill of Rights.  Some of these rights are inalienable and uncontested and cannot be surrendered under any circumstances.  The tenant’s rights under the “International Bill of Rights” includes a right to shelter (and many other important rights).  The LTB failed to appreciate all of these rights of the tenant when it failed to restore her to the rented premises pending the upcoming Board hearing.

(f)               it is inconsistent for the tenant to have her tenancy “maintained” and “preserved” by the LTB and yet not to be permitted to enjoy her rights as a tenant to live in the rented premises. 

(g)               the court should grant the tenant equitable relief pursuant to ss. 96 and 97 of the Courts of Justice Act.  Principles of equity prevail over rules of common law, and, the tenant argues, it is only fair that she be permitted back into her unit pending the upcoming hearing before the LTB.

(h)               the LTB should not have made the order it did because the proceeding before it was ex parte.  It would have been better for the LTB to have let the tenant back into the premises and to require her to then give notice to the landlord.

(i)                 the order is in some senses gratuitous in that the landlord is not permitted to re-let the unit and is required to leave the tenant’s property in the unit.  The premises is sitting unoccupied and the tenant has nowhere to stay pending the upcoming Board hearing.

[6]               The Divisional Court sits on appeals from the LTB.  In that capacity, this court has the jurisdiction to make interim orders.  That jurisdiction includes the authority to order a tenant restored to residential rental premises pending an appeal in this court.  If Ms Gullaume’s appeal proceeds on the merits, and if she succeeds on the appeal, the court could grant her the relief that she now seeks.  Similarly, if Ms Guillaume succeeds on her application pending before the LTB, scheduled for hearing on November 10, 2021, the LTB could order Ms Guillaume restored to her rented premises.  The issue on this appeal is not whether Ms Guillaume should be restored to her rented premises.  It is not even whether Ms Guillaume should be restored to her unit pending the upcoming LTB hearing.  Rather, the issue is whether there is a viable appeal to this court that the LTB erred in failing to restore Ms Guillaume to her unit pending the upcoming LTB hearing.

[7]               I conclude that there is no viable appeal to this court from the LTB’s interim ruling, for the following reasons:

(a)               The LTB’s order is interlocutory.  This court will not ordinarily hear an appeal from an interlocutory ruling of the LTB.  While I appreciate that the consequences of the interim ruling are serious for Ms Guillaume in the short-term, still there are no circumstances present here that would lead the court to depart from its practice of refusing to hear interlocutory appeals from the LTB.

(b)               Ms Guillaume has misconceived the meaning of the Board’s interim ruling that the tenancy be “preserved”.  In so ordering, the LTB did not find that Ms Guillaume is entitled to continue to be a tenant.  It found, rather, that the rented unit should not be rented out to someone else, and that Ms Guillaume’s possessions should not be removed from the unit, pending the upcoming hearing before the LTB.  The LTB “preserved” the status quo, to enable the LTB to do justice on November 10^th. 

(c)               Ms Guillaume’s failure to give the landlord notice of her urgent request to be restored to her unit meant that the landlord would have been denied procedural fairness if the LTB had ordered Ms Guillaume restored to the premises.  This was a consequence of Ms Guillaume’s decision not to give the landlord notice.  The LTB was prepared to make a limited order against the landlord, even though it did not have notice, to preserve the status quo on an interim basis.  In making the order that it did, the LTB was acting within a broad discretion accorded to it.  Ms Guillaume’s argument that this was an error of law and unfair is undercut by the unfairness of not giving notice to the landlord, and Ms Guillaume is mistaken in believing that she has been restored to her rights as a tenant by the preservation of the rental unit for the purposes of the tenancy.  In short, on the record before the LTB, the order that was made was within the LTB’s discretion.  There was no error in law that is reviewable on appeal in this court.

(d)               The “right to shelter”, so far as it may exist under the laws of Canada and the laws of Ontario, does not translate into a right to maintain a particular tenancy.  Landlord and tenant law, in the residential tenancy context, is governed by the Residential Tenancies Act.  The LTB acted in accordance with the Act.  No issues arise in this case under the Charter, the Bill of Rights, or international human rights issues.

(e)               There is no practical purpose to this appeal.  The subject matter of the appeal is the Board’s interim order.  That order will be over once the LTB decides the pending proceeding before it, scheduled for urgent hearing on November 10, 2021.  This practical point ties back to this court’s usual refusal to hear interlocutory appeals: as in the case at bar, they will often be moot by the time they can be heard in this court.

(f)               There is similarly no practical purpose to a motion for interim relief in this court.  It would take the parties several days or weeks to exchange motion materials and then to schedule a hearing date before the court.  If steps had been done to schedule the motion immediately after this appeal was initiated (October 15, 2021), even if the motion could have been heard before November 10, 2021, inevitably the motion judge would have dismissed the motion or adjourned it to be heard after the pending LTB proceedings on November 10, 2021. 

[8]               As I indicated in my initial directions in this case, I understand that Ms Guillaume disagrees with the LTB’s interim order and that she thinks it was unfair.  She will have to live with it and seek her recourse at the LTB hearing on November 10, 2021.  Ms Guillaume’s appeal is stayed pursuant to R.2.1.01 because it is premature, can have no practical effect, and, in the current circumstances, will be moot by the time it can be heard.  I have stayed the appeal rather than dismissing it in case there are material delays in the proceedings below that are not caused by Ms Guillaume.  If that should happen, Ms Guillaume may seek case management directions from this court to lift the stay and to move forward with this appeal.  The parties are directed to update the court on the status of this matter by December 17, 2021.  A copy of this decision shall be provided to counsel for the LTB as well as to the parties.  I note, for Ms Guillaume, that this decision is subject to appeal to the Court of Appeal, but only with leave from that court.  It is not subject to review by a panel of three judges of the Divisional Court."

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.