Tenant Wins Motion to Set Aside Eviction Order: Avy Enterprises Inc. v Clayton 2023
Tenant avoids eviction after missing rent payment deadline, LTB sets aside eviction order
Summarized by RentZenLast updated: September 12, 2024
Case Summary
2307 Blue Jays Way, Toronto, ON M5V0N4
Decision in favor of
tenant
Previous Order
Overturned
Dispute Categories
Agree with the ruling?
Timeline
Hearing Date
Nov 2023
Order Date
Nov 22, 2023
Dispute Summary
Landlord applied for an order to terminate the tenancy and evict the Tenant due to the Tenant's failure to meet a condition specified in a previous order issued by the Board. The Tenant filed a motion to set aside the eviction order.
Determinations
- Tenant breached previous order by missing payment deadline
- Tenant made payment two days late
- Tenant up to date on all other payments required by previous order
- Landlord did not demonstrate undue prejudice if tenancy continued
Case Study
The Tenant acknowledged breaching the previous order by failing to pay $375 towards rent arrears on the due date. However, the Tenant made the payment two days later. The Landlord argued the Tenant had a history of late payments, which caused them stress and inconvenience. The Board found that while the late payments were inconvenient, the Tenant had ultimately made all required payments, and the Landlord did not articulate any specific prejudice they would experience if the tenancy continued under the previous order.
Arguments and Actions
Landlord
Arguments
Landlord argued the Tenant is likely to continue making late payments and it would be unfair to set aside the eviction order given the history of the proceedings.
Actions
Landlord acknowledged Tenant is up to date on payments but argued Tenant has a history of late payments, which causes them stress and inconvenience.
Tenant
Arguments
Tenant argued it would not be unfair to set aside the eviction order given he has made all other required payments and can continue to abide by the terms of the previous order.
Actions
Tenant missed $375 payment due on his birthday, August 15, 2023, but made the payment on August 17, 2023. Tenant stated he was out of the country on his birthday and forgot to make the payment.
Decision Summary
The Tenant's motion to set aside the eviction order is granted. The original order remains in force, and the Tenant is given one final opportunity to maintain the tenancy by complying with the remaining conditions.
Reason for Eviction Relief
Tenant's breach was not severe enough to warrant eviction, and Landlord did not demonstrate undue prejudice if tenancy continued
Adjudicator Details
LTB Member
Total Orders
477
Landlord Favorable
90.6%
Tenant Favorable
4.4%
Mutual Agreement
5.0%
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