LTB Order LTB-L-010205-22

Order under Section 69 Residential Tenancies Act, 2006 2023 ONLTB 28387 (CanLII) Citation: W. v J., 2023 ONLTB 28387 Date: 2023-03-29 File Number: LTB-L-010205-22 In the matter of: UPSTAIRS, 924 PIERRE AVE WINDSOR ON N9A2K9 Between: T.W. Landlord And J.J. Tenant T.W. (the 'Landlord') applied for an order to terminate the tenancy and evict J. J. (the 'Tenant') because the Tenant did not pay the rent that the Tenant owes. This application was heard by videoconference on March 15, 2023. Only the Landlord and the Landlord’s legal representative, R. Basser attended the hearing. As of 9:44 a.m., the Tenant was not present or represented at the hearing although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the Landlord's evidence. At 9:52 a.m., the Tenant called into the hearing room. The Tenant was informed that the hearing proceeded without him. Preliminary Issue: 1. The Landlord served the Tenant with a Notice to End Tenancy Early for Non-payment of Rent (N4 Notice). 2. In the “Address of the Rental Unit” portion of the N4 Notice of Termination, the Landlord indicated “924 Pierre Ave, Windsor”. However, the application indicated that the Tenant resided in the upstairs unit of 924 Pierre Ave. 3. At the hearing, the Landlord confirmed that the Tenant lives in the upstairs unit. The Landlord submitted that this is not a fatal flaw because the Tenant actually received the N4 Notice. 4. Section 43 of the Residential Tenancies Act, 2006 (the ‘Act’) states that: (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, Order Page: 1 of 3  (a) identify the rental unit for which the notice is given; 5. While the Landlord states that this was not a fatal flaw given that the Tenant received the notice, I do not agree. Section 43 states that the notice shall identify the rental unit for which the notice is given. I interpret this language to mean that this is a requirement of the notice 2023 ONLTB 28387 (CanLII) File Number: LTB-L-010205-22 of termination. As the Landlord did not identify the rental unit, I find that the notice is invalid for non-compliance with section 43 of the Act. As such, the Landlord cannot rely on this notice to terminate the tenancy. 6. The Landlord was presented with the option of withdrawing their application or proceeding with an order for arrears only. The Landlord indicated a desire to proceed with an order for arrears only. Determinations: 7. The Tenant was in possession of the rental unit on the date the application was filed. 8. The lawful rent is $1,000.00. It was due on the 1st day of each month. 9. The Tenant has paid $1,500.00 to the Landlord since the application was filed. 10. The rent arrears owing to March 31, 2023 are $12,870.41. 11. The Landlord incurred $186.00 for the cost of filing this application. The Landlord is entitled to this cost. 12. There is no last month's rent deposit. COSTS 13. The Landlord requested an order for costs as the Tenant did not attend to defend the application and the Landlord incurred representation costs. 14. An award of costs is discretionary. Rules 23.2 and 23.3 provide for ordering another party’s costs. Under Rule 23.2 costs are limited to representation/preparation fees and out of pocket costs. The hourly rate for a paid representative is capped at $100.00 to a maximum of $700.00. Rule 23.3 does not specify the types of costs that may be awarded but does provide a party must have engaged in unreasonable conduct that caused undue delay or expense. 15. The fact that the Tenant did not attend the hearing did not cause any undue delay or expense. The Landlord received the order sought, being an order for arrears. As such, I do not find that the Tenant’s conduct was unreasonable. The Landlord’s request for costs is denied. It is ordered that: Order Page: 2 of 3  1. The Tenant shall pay to the Landlord $13,056.41. This amount represents arrears of rent and the application filing fee owing to March 31, 2023. 2. If the Tenant does not pay the Landlord the full amount owing on or before April 9, 2023, the Tenant will start to owe interest. This will be simple interest calculated from April 10, 2023 at 5.00% annually on the balance outstanding. 2023 ONLTB 28387 (CanLII) March 29, 2023 ____________________________ Date Issued Camille Tancioco Member, Landlord and Tenant Board File Number: LTB-L-010205-22 15 Grosvenor St, Ground Floor Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. Order Page: 3 of 3