LTB Order LTB-L-071049-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: Z.W. v V.B., 2023 ONLTB 40675 Date: 2023-06-02 2023 ONLTB 40675 (CanLII) File Number: LTB-L-071049-22 In the matter of: 57 FOREST HEIGHTS ST WHITBY ON L1R1T8 Between: Z.W. Landlord And V.B. Tenant Z.W. (the 'Landlord') applied for an order to terminate the tenancy and evict V. B. (the 'Tenant') because the Tenant did not pay the rent that the Tenant owes. This application was heard by videoconference on May 23, 2023. Only the Landlord, attended the hearing. Determinations: Preliminary Issue: Invalid Service of Notice 1. The Landlord filed an N4 notice with the Board on November 11, 2022 with a termination date of November 23, 2022. 2. The Landlord submitted a document he claimed was the certificate of service on November 11, 2022. The document submitted to the Board to support the service of the N4 notice was a copy of a sheet of paper with a hand written address for the rental unit, the return address of the Landlord and a postage stamp. 3. There was no post date on the stamp and no indication of when the Landlord mailed the Tenant the N4 notice. Order Page: 1 of 4  File Number: LTB-L-071049-22 Rules and Analysis 4. Certificate of Service 3.8 Where required by these Rules or the LTB directs, service of a document 2023 ONLTB 40675 (CanLII) must be confirmed by completing a Certificate of Service signed by the person who served the document and filing it with the LTB within 5 days of service. 5. When Documents are Served 3.9 A document is considered served on the: a) fifth day after mailing;… 6. Pursuant to the Board’s rules under 3.8 the Landlord is required to file a certificate of service with the Board to support the service of a document, in this case the N4 notice to the Tenant. The purpose of this is to provide record of who, how and when the N4 notice was served. The date of service on the certificate of service is important because it provides the voiding period of the notice and identifies if the Landlord has allowed the Tenant the proper amount of time to void the notice and preserve the tenancy. 7. Pursuant to Rule 3.9, a document is considered served on the fifth day after mailing so, in this case, the Landlord would be required to allow 19 days from the date of mailing for the termination date on the notice. 8. The Landlord claimed he mailed the Tenant the notice on November 2, 2022, however the document he submitted had no indication of a post date on the stamp and there was no indication of when the Landlord mailed the N4 notice. 9. Further, in the absence of the Tenant to confirm receipt of the N4 notice, I was unable to determine if or when the Tenant received the notice. 10. Given all the above, with the evidence before me and on a balance of probabilities I find the service of the N4 notice invalid, and therefore the Landlord’s request for an order for eviction is denied. Landlord’s L1 Application 11. Given the above, I afforded the Landlord 2 options: 1) he could withdraw the application and file again with the Board and filing a proper certificate of service with the N4 notice, or 2) the Landlord could proceed to convert the L1 application to an L9 and proceed on the arrears only. 12. The Landlord chose to proceed with the arrears only, and the application is amended from an L1 to an L9. Order Page: 2 of 4  File Number: LTB-L-071049-22 13. The Tenant was in possession of the rental unit on the date the application was filed. 14. The lawful rent is $3,390.00. It was due on the 1st day of each month. 15. The Tenant has paid $12,000.00 to the Landlord since the application was filed. 2023 ONLTB 40675 (CanLII) 16. The rent arrears owing to May 31, 2023 are $11,730.00. 17. The Landlord incurred costs of $186.00 for filing the application and is entitled to reimbursement of those costs. 18. The Landlord collected a rent deposit of $3,390.00 from the Tenant and this deposit is still being held by the Landlord. 19. I have considered all of the evidence presented at the hearing and all of the oral testimony and although I may not have referred to each piece of evidence individually or referenced all of the testimony, I have considered it when making my determinations. 20. This order contains all reasons for the determinations and order made. No further reasons will be issued. It is ordered that: 1. The Tenant shall pay to the Landlord $11,916.00. This amount includes rent arrears owing up to May 31, 2023 and the cost of filing the application. 2. If the Tenant does not pay the Landlord the full amount owing on or before June 13, 2023, the Tenant will start to owe interest. This will be simple interest calculated from June 14, 2023 at 6.00% annually on the balance outstanding. June 2, 2023 Date Issued Greg Brocanier Member, Landlord and Tenant Board 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. *Note: When the LTB directs payment-out, the Canadian Imperial Bank of Commerce will issue a cheque to the appropriate party named in this notice. The cheque will be in the amount directed plus any interest accrued up to the date of the notice. Order Page: 3 of 4  File Number: LTB-L-071049-22 Schedule 1 SUMMARY OF CALCULATIONS 2023 ONLTB 40675 (CanLII) A. Amount the Tenant must pay the Landlord Rent Owing To Move Out Date $23,730.00 Application Filing Fee $186.00 NSF Charges $0.00 Less the amount the Tenant paid to the Landlord since the - $12,000.00 application was filed Less the amount the Tenant paid into the LTB since the - $0.00 application was filed Less the amount of the last month's rent deposit - $0.00 Less the amount of the interest on the last month's rent deposit - $0.00 Less the amount the Landlord owes the Tenant for - $0.00 an {abatement/rebate} Less the amount of the credit that the Tenant is entitled to - $0.00 Total amount owing to the Landlord $11,916.00 Order Page: 4 of 4