Author: Marshall Yarmus
Date Posted: July 15 2019

The Landlord and Tenant Board sees lots of N8 Persistent Late Payment of Rent applications. Most self-represented landlords think they will get an eviction order as a result of this L2 application based on an N8. Chances are they will not.

N8 Form and L2 Application 

An N8 notice can be served with at least 60 days notice at the end of a lease term or served on a month to month term. The notice must be properly completed so that the tenant knows the case she has to meet.

Failure to Provide Enough Details in the N8 Form

The board may dismiss the application if the N8 notice fails to give enough details. See Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div Ct.)

An application is filled with board under section 58(1) of the Residential Tenancies Act. The RTA states:

“58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

The tenant has persistently failed to pay rent on the date it becomes due and payable.”

How many times is the tenant required to pay rent late to bring this application?  As you can see there is no definition in the RTA of how many late payments constitute persistent late payment of rent.

Landlords are encouraged to serve an N4 every time the rent is late. These N4s can be used as evidence in a Persistent Late Payment of Rent application.

In TEL-80574-17 (Re), 2017 CanLII 94082 (ON LTB) the board found that rent paid late nine of the last 11 months constitutes Persistent Late Payment of Rent.

In TEL-78434-17-RV (Re), 2017 CanLII 60063 (ON LTB) the board found:

“5. The Tenant has also been persistently late paying the rent. Since July of 2016 the Tenant has never paid rent on time and in full. Between September of 2016 and March of 2017 she was continuously in arrears. The Rent Bank cleared the arrears then owing on March 28, 2017. Since then new arrears have accumulated.

17. An order shall issue terminating the tenancy on May 31, 2017 pursuant to the notice of termination for persistent late payment of rent.”

Eviction in Ontario is a Last Resort

Eviction is supposed to be the last resort to deal with applications. Board adjudicators are reluctant to evict a tenant on a first Persistent Late Payment of Rent application.

The typical order the LTB will make on a persistent Late Payment application is to order the tenant to pay rent on the first business day of the month for the next 12 months. If the tenant makes all the payments, then no problem and the tenancy will continue. However, if the tenant fails to pay the rent in full and on time, the landlord can come back to the board without notice to the tenant to seek an eviction based on a single default of the order.

The Landlord and Tenant Board Interpretation Guideline 7 gives some information of discretionary refusal of an eviction due to an N8 Persistent Late Payment of Rent. Guideline 7 reads in part:

Circumstances Justifying Discretionary Refusal

In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time. The eviction may be refused despite the earlier months of late payments, due to the tenant’s good conduct. In such circumstances, the Member may order that on-time rent payments are to be made, by the tenant to the landlord, for a specified number of months following the hearing.

A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord). Other relevant factors may include whether the current reason for eviction has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.”

A non-payment of rent notice is voidable by the tenant paying all the rent that is owed. A persistent late payment of rent notice N8 is not voidable. Once served, the tenant cannot fix their behavior to avoid an L2 eviction application and a Notice of Hearing.

Hearings at the Landlord and Tenant Board can be complicated. This is especially true if you are not familiar with the forms, applications, rules of the Landlord and Tenant Board, the board’s Interpretation Guidelines, case law, and evidence necessary to win your case. If you need representation at the Landlord and Tenant Board I encourage you to hire an experienced licensed paralegal Ontario.

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