Tenant Wins Appeal: Daley v. Linton, 2018 ONSC 5095 - LTB Eviction Order Overturned
Divisional Court overturns LTB eviction order due to failure to consider mandatory N5 notice voiding period
Summarized by RentZenLast updated: August 16, 2024
Case Summary
Decision in favor of
tenant
Balance Owed
-
Dispute Categories
Notices Sent
Agree with the ruling?
Timeline
Hearing Date
Mar 2018
Order Date
Aug 28, 2018
Dispute Summary
Landlord applied to evict Tenant for substantially interfering with reasonable enjoyment and impairing safety. Tenant appealed LTB eviction order, arguing procedural errors and lack of mandatory findings under s. 64(3) of Residential Tenancies Act.
Determinations
- LTB erred in law by not making finding under s. 64(3) of RTA
- Eviction order cannot stand without mandatory finding
- Review decision improperly added evidence without transcript
- Appeal allowed due to legal error by LTB
Case Study
The court found that the LTB erred in law by not making a mandatory finding under s. 64(3) of the Residential Tenancies Act regarding whether the tenant had stopped the offensive conduct within 7 days of receiving the eviction notice. The court emphasized that this finding is necessary for N5 evictions and that there was no evidence the LTB considered this issue.
Arguments and Actions
Landlord
Actions
Landlord filed N5 and N7 notices claiming substantial interference with reasonable enjoyment and impairment of safety.
Tenant
Arguments
Tenant argued that the LTB failed to make a mandatory finding under s. 64(3) of the RTA regarding whether the offensive conduct stopped within 7 days of receiving the eviction notice.
Actions
Tenant allegedly engaged in disruptive behavior including shouting, banging on doors, flashing lights, and video-recording other tenants.
Procedural Errors
Tenant did not attend the initial LTB hearing, claiming he did not receive notice despite proof of service by mail.
Aggravating Factors
Tenant allegedly shouted, banged on doors, banged glass bottles, flashed lights in tenants' eyes, and video-recorded tenants with his cellphone.
Decision Summary
The Divisional Court allowed the tenant's appeal of the LTB eviction order. The court found that the LTB made an error of law by not considering whether the N5 notice had been voided within the 7-day period, which is a mandatory finding for N5 evictions. The court set aside the eviction order due to this legal error.
Adjudicator Details
Divisional Court
Total Orders
3
Landlord Favorable
0.0%
Tenant Favorable
66.7%
Mutual Agreement
33.3%
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