78. (1) A Landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:
In such cases, a Landlord may apply for an Eviction Order without notifying the Tenant. Recently, however, a Tenant managed to delay eviction for nearly a year by dint of the argument that the Tenant did not receive notice. The Tenant was initially successful at the Landlord Tenant Board but an appeal to the Divisional Court dismissed the argument that she was “not reasonably able to participate” in the section 78 Landlord Tenant Board hearing because she “did not receive notice.”
On April 27, 2016, the Tenant successfully set aside an Eviction Order based on a section 78 application because she did not receive notice. The Landlord Tenant Board provided an extension of time to pay rent in arrears. When the Tenant failed to meet the new deadline to pay rent arrears, the Landlord was compelled to bring another application under section 78.
On August 12, 2016, a second Eviction Order was issued and the Tenant, predictably, brought another motion to set aside. This time the Landlord Tenant Board upheld the Eviction Order and denied the Tenant’s motion. The Tenant promptly appealed this decision on the grounds that she was “not reasonably able to participate.”
On January 4, 2017, the Tenant’s motion to appeal the Eviction Order was quashed by the Divisional Court. Justice Kiteley found that the Landlord Tenant Board had not, in upholding the Eviction Order, made an “error of law,” and that the application was “manifestly devoid of merit.” Moreover, he found that the Tenant had not provided any evidence for her inability to participate.
Landlords may breathe easy, this time. Justice Kiteley’s decision makes it clear that “lack of notice” in section 78 applications is not grounds for setting aside Eviction Orders. The decision strengthens jurisprudence establishing that the Landlord Tenant Board has the right to consider Tenants adequately notified of their impending eviction if they choose to defy the Landlord Tenant Board’s Orders.