COURT OF APPEAL FOR ONTARIO
Roberts, Coroza and Rahman JJ.A.
BETWEEN
The Estate of Ann Miller
Applicant (Respondent)
and
Suzanne Arguelles
Respondent (Appellant)
Karen Andrews, for the appellant
Joseph D. Kennedy, for the respondent, the Estate of Ann Miller
Linda Naidoo, for the Landlord and Tenant Board
Heard: January 19, 2026
On appeal from the order of Justice Robbie D. Gordon of the Divisional Court, dated January 7, 2025, with reasons reported at 2025 ONSC 112.
I. Overview
1This appeal involves the interpretation of the statutory provisions and procedures related to a landlord’s termination of a tenancy under ss. 48 and 71.1 of the Residential Tenancies Act, 2006, S.O. 2006, Ch. 17 (“RTA”).1
2Section 48 of the RTA permits what are termed “landlord’s own use” evictions: a landlord is able to terminate a tenancy where the landlord in good faith requires possession of the rental unit for residential occupation during a period of at least one year by one or more specified persons, including the landlord, the landlord’s spouse, and the landlord’s children. Pursuant to s. 71.1 of the RTA, a landlord seeking a landlord’s own use eviction must deliver an N12 Notice to End Your Tenancy (“N12 notice”) and include in the eviction application details of previous N12 notices served by the landlord on any tenant within two years of the commencement of the eviction application.
3The appellant, a tenant of the subject unit in these proceedings (“the Unit”), was served in March and then in June 2022 with N12 notices by the Unit owner, Ann Miller, and her son, John Miller, who managed the Unit for his mother. The two N12 notices stated that the Unit was required for occupation by the landlord’s child. Ms. Miller’s daughter was the intended occupant.
4Mr. Miller, alone, filed an eviction application while Ms. Miller was still alive. Prior to the hearing of the eviction application, Ms. Miller died.
5The appellant refused to vacate the Unit, arguing that the N12 notices were invalid because Ms. Miller, the only landlord who had standing to evict for landlord’s own use, had died after serving the notices and before the eviction application was heard. Further, the eviction application failed to disclose details of all N12 notices that the landlord had served within two years of commencing the eviction application, as required by s. 71.1(3).
6The eviction application based on the June 2022 N12 notice before the Landlord and Tenant Board (“the Board”) was successful. The Board replaced Ms. Miller’s name on the eviction application with the name of her Estate and amended the application to disclose the missing details of the prior N12 notice. Consequently, it allowed the landlord’s application, terminating the tenancy for the landlord’s own use. The appellant’s review of that decision by the Board and subsequent appeal to the Divisional Court were dismissed.
7The appellant appeals from the Divisional Court’s decision that upheld the termination of her tenancy and eviction from the Unit.2 I would frame the issues in this appeal as follows:
(i) Did the death of Ann Miller render the June 2022 N12 notice invalid and the eviction application a nullity because there was no individual applicant at the time of the hearing who had standing to terminate the tenancy and evict the appellant for the landlord’s own use under s. 48 of the RTA? Relatedly, was it an error to amend the eviction application and substitute Ms. Miller’s Estate as the applicant landlord with the requisite standing to invoke the landlord’s own use to terminate the tenancy and evict the appellant?
(ii) Did the Board have jurisdiction to hear the respondent’s eviction application despite the fact that the respondent had failed to include details of all the previous N12 notices served within two years of the eviction application brought against the appellant, per s. 71.1 of the RTA?
8For the reasons that follow, I would allow the appeal. It was an error of law for the Board and the Divisional Court to declare the June 2022 N12 notice valid and to amend the eviction application. The Board and the Divisional Court did not comply with the clear, mandatory provisions of ss. 48 and 71.1 of the RTA. The June 2022 N12 notice was invalid because it did not comply with s. 48 of the RTA. The eviction application, which both relied on the invalid June 2022 N12 notice and was itself incomplete per s. 71.1 of the RTA, could not be cured by the amendments. The Board and the Divisional Court therefore erred by enforcing the June 2022 N12 notice, hearing the eviction application, and ordering the termination of the appellant’s tenancy and her eviction from the Unit.
II. Factual Background
9The appellant has been a tenant of the Unit since 2017. The Unit was owned by Ann Miller and managed by her son, John Miller.
10On or around March 14, 2022, the appellant was served with an N12 notice of eviction for the landlord’s own use. The March 2022 N12 notice listed Ms. Miller and her son as landlords. The notice stated that the Unit was needed for the landlord’s child to live in; Ms. Miller intended for her daughter to move into the Unit. The notice required the appellant to vacate the Unit by May 31, 2022. Initially, the appellant agreed to move and asked for more time to find another residence. Ms. Miller and her son agreed. When the appellant could not find another residence, she refused to leave the Unit.
11The appellant was served with a second N12 eviction notice on or around June 29, 2022. The second notice again listed Ms. Miller and her son as landlords and indicated that the Unit was needed for occupancy by the landlord’s child. The notice required the appellant to vacate the Unit by August 31, 2022. The appellant refused to move.
12On July 19, 2022, Mr. Miller, named as landlord, filed an eviction application to end the appellant’s tenancy based on the June 2022 N12 notice. The application did not contain details of the earlier March 2022 N12 notice that had been served on the appellant.
13Ms. Miller died on December 7, 2022. On March 9, 2023, the eviction application hearing took place before the Board. At the time of the hearing, the Unit remained registered in the name of Ms. Miller.
14On June 5, 2023, the Board allowed the eviction application and ordered the appellant to vacate the Unit by September 30, 2023. Rejecting the appellant’s arguments, the Board held that Ms. Miller’s death did not affect the validity of the June 2022 N12 notice and amended the name of the applicant to the Estate of Ann Miller. Nor did the failure to include the details of the March 2022 N12 notice invalidate the eviction application because the appellant was aware of that notice and therefore suffered no prejudice from the Board amending the eviction application to include it. The Board rejected as speculative the appellant’s contention, not raised again on appeal, that the landlord had acted in bad faith.
15On July 7, 2023, the Board’s decision was confirmed on review.
16In her appeal before the Divisional Court, the appellant argued that the Board had erred by: 1) allowing the eviction application to proceed when the only landlord who had the statutory right to evict the tenant was deceased; 2) amending the application to the Estate of Ann Miller without naming an executor, trustee, or administrator to pursue the eviction application; and 3) adjudicating on the landlord’s eviction application when it had not disclosed details of the previous March 2022 N12 notice.
17On January 7, 2025, the Divisional Court rejected the appellant’s arguments and dismissed the appeal. I summarize the court’s reasons as follows:
(i) The June 2022 N12 notice was valid because at the time of its issuance and the commencement of the application to enforce it, Ms. Miller was alive, and her death did not alter her bona fide intention to terminate the appellant’s tenancy so that her daughter could occupy the Unit. The heirs to Ms. Miller’s Estate consented to their sister occupying the Unit.
(ii) It was unnecessary to name an estate trustee/personal representative to determine the issues in this case. By amending the application to name Ms. Miller’s Estate, the Board fulfilled its mandate under s. 183 of the RTA “to adopt the most expeditious method of determining the questions arising in a proceeding that afforded to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard upon the matter.”
(iii) Finally, the landlord’s failure to include details of the March 2022 notice that had been previously served on the appellant did not invalidate the June 2022 N12 notice. The consequence of non-compliance with s. 71.1(3) is to refuse the filing of the application. Once the application is accepted for filing, there is nothing that prohibits amendment. The Board did not err by exercising its discretion to amend the eviction application to include details of the March 2022 notice.
18The Divisional Court extended the time for the appellant to vacate the Unit to April 30, 2025, and ordered the appellant to pay to the respondent the agreed upon amount of $2,000 in costs.
19On April 25, 2025, this court stayed the eviction until the disposition of this appeal.
III. Analysis
a. Standard of Review
20For the purposes of this appeal, this court asks whether the Divisional Court identified the appropriate standard of review and applied it correctly: Smith v. Youthlink Youth Services, 2022 ONCA 313, 469 D.L.R. (4th) 673, at para. 16; Honsberger v. Great Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th) 1, at para. 17. To do so, this court steps into the shoes of the Divisional Court and focuses on the correctness of the original Board decision: Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, 132 O.R. (3d) 295, at para. 27, leave to appeal ref’d, [2016] S.C.C.A. No. 397.
21An appeal from the Board’s decision is limited to questions of law and procedural fairness: s. 210(1) of the RTA. The Divisional Court’s failure to identify and address Board errors of law is an error of law: Elkins v. Van Wissen, 2023 ONCA 789, 168 O.R. (3d) 756, at para. 77. Questions of statutory interpretation are questions of law subject to correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; White v. Upper Thames River Conservation Authority, 2022 ONCA 146, 161 O.R. (3d) 13, at para. 7; Elkins, at para. 37. The standard of review on questions of procedural fairness is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 27, 30; Vavilov, at para. 37.
b. Principles of statutory interpretation
22The modern approach to statutory interpretation is well-established. As this court remarked in White, at para. 19: “[t]he modern approach to statutory interpretation is now referred to as ‘text, context, and purpose’.” This approach requires that statutory words be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme and object of the statute, and legislative intention and meaning: La Presse inc. v. Quebec, 2023 SCC 22, 485 D.L.R. (4th) 652, at para. 22, citing E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), , [1998] 1 S.C.R. 27, at para. 21; Vavilov, at para. 117; White, at para. 18; Elkins, at para. 41.
c. Remedial purposes of the RTA
23The stated purposes of the RTA are found in s. 1:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.
24In White, at para. 10, this court described the overarching remedial purpose of the RTA, as follows:
The [RTA] is remedial legislation designed to redress the imbalance of power between landlords and tenants. It removes leases from the ordinary contract law principles that would otherwise govern and establishes extensive statutory rights for tenants. The [RTA] enjoys primacy over all other legislation, save the Ontario Human Rights Code, and the parties are prohibited from waiving or limiting the protection the [RTA] provides.
25As remedial legislation with a tenant protection focus, the RTA must receive a fair, large and liberal construction that will best ensure its protective purpose is attained, resolving any ambiguity in favour of its tenant protection objects: Metropolitan Toronto Housing Authority v. Godwin (2002), , 161 O.A.C. 57 (C.A.), at para. 19; Price v. Turnbull’s Grove Inc., 2007 ONCA 408, 85 O.R. (3d) 641, at paras. 26 and 44; The Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391, 120 O.R. (3d) 561, at para. 72, per Juriansz J.A., dissenting in part, but not on this point, leave to appeal ref’d [2014] S.C.C.A. No. 326; Honsberger, at para. 19; Ricketts v. Veerisingnam, 2025 ONSC 841 (Div.Ct.), at para. 97, per Nakatsuru J., dissenting, but not on this point.
d. First issue: interpretation of s. 48 of the RTA
26The relevant provisions regarding landlord’s own use are contained in ss. 48(1) and (5) of the RTA, as follows:
48(1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless
(a) the rental unit is owned in whole or in part by an individual; and
(b) the landlord is an individual.
27The plain and literal meaning of these provisions is clear. A landlord may only terminate a tenancy for the rental unit’s occupation by the individuals specified in s. 48(1) of the RTA: the landlord; the landlord’s spouse; a child or parent of the landlord or the landlord’s spouse; or a caregiver of the landlord, the landlord’s spouse, or of a child or parent of the landlord or the landlord’s spouse.
28That means that s. 48(1) cannot be invoked for the occupation of the rental unit by any individual who does not fall within one of those listed categories. The aunt, uncle, cousin, brother, or sister of the landlord or the landlord’s spouse do not qualify, for example.
29The respondent relies on the broad definition of “landlord” under s. 2 of the RTA to argue that Ms. Miller’s Estate and her heirs can be landlords. The definition of “landlord” under s. 2 of the RTA is not restricted to individuals, and includes:
(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; “person”, or any expression referring to a person, means an individual, sole proprietorship, partnership, limited partnership, trust or body corporate, or an individual in his or her capacity as a trustee, executor, administrator or other legal representative.
30The difficulty with the respondent’s position is that it fails to recognize the fact that it is not all landlords who may invoke s. 48(1) to terminate a tenancy for landlord’s own use, but only landlords who meet the statutory criteria under ss. 48(1) and (5). In contrast to other sections of the RTA which use a broad definition of landlord, the statutory criteria under ss. 48(1) and (5) narrowly define a landlord as an individual: Hefzi v. Louw, 2023 BCSC 994, at para. 23;3 Schuld v. Li, 2025 BCSC 681, at paras. 28-31. While an estate may be a landlord for other purposes under the RTA, such as to collect rent or effect repairs, an estate does not meet the statutory criteria set out for landlord’s own use under ss. 48(1) and (5) of the RTA because it is not an individual, nor can it have a spouse, child or parent.
31I acknowledge that the Board is required to “ascertain the real substance of all transactions and activities”, and in doing so can “disregard the outward form of a transaction or the separate corporate existence of participants”: RTA, s. 202(1)(a). In Slapsys (c.o.b. 1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676, 268 O.A.C. 395, this court held that s. 202(1)(a) permitted the Board to pierce the corporate veil to terminate a tenancy for the personal use of the sole shareholder of the corporate owner of rental premises in that case.
32However, the Board’s power under s. 202(1)(a) has no application in the present case. A finding that the estate does not meet the requirement in s. 48 that a landlord must be an individual is not merely a matter of form, nor does it obfuscate the “real substance” of the transaction. In Slapsys, the sole shareholder of a corporation that owned the residential unit was an identifiable individual who had performed the duties and responsibilities of a landlord for many years. The shareholder, though technically a separate legal entity from the corporation that owned the unit, was clearly a landlord for the purposes of s. 48(1) in substance. In the present case, the estate has no identified personal representative or trustee. As a result, there is no individual that can be deemed a landlord to permit occupancy for that landlord’s own use. I will return below to the other impediments to landlord’s own use through an estate.
33The plain language of s. 48(1) also requires that the prescribed criteria permitting the termination of a tenancy must still be in place at the time of termination. It is an error for the Board to consider the relevant circumstances only at the time of the delivery of the N12 notice: Elkins, at para. 71.
34A tenancy is not terminated until the requisite notice period has expired or until terminated by order. As a result, the landlord must meet the statutory criteria on the termination date on the N12 notice, if the notice is valid and not contested by the tenant. If it is contested, the criteria must be met on the date when the tenancy is terminated by order of the Board or by the court after all appeals have been exhausted: see, for example, Elkins, at para. 71-72; Hefzi, at paras. 22-28; Schuld v. Li, at paras. 28-31.
35To hold otherwise would defeat the protective legislative purpose informing these provisions. In keeping with its remedial nature and tenant protection focus, the RTA circumscribes the termination of tenancies, focusing on the security of tenure for tenants and preventing unlawful evictions: White, at para. 10; Elkins, at para. 42; Ricketts, at paras. 97-99, per Nakatsuru J., dissenting, but not on these points. Section 48 represents a clear exception to the regime that protects against no fault evictions: Slapsys, at para. 12. Reading this section in the context of the RTA as a whole, the specific purpose of the exceptional provisions in this section should be read as to limit the circumstances in which a landlord may give a notice to end a tenancy: Schuld v. Niu, 2019 BCSC 949, at para. 17.
36The potential for abuse of the landlord’s own use provisions by unscrupulous landlords is obvious. For the tenant’s protection, it is therefore crucial that the landlord seeking to terminate a tenancy under s. 48(1) meets all of the statutory criteria on the actual date of termination.
37In the present case, the Board and the Divisional Court erred by considering only whether the landlord had met the statutory criteria under s. 48(1) of the RTA on the date of the June 2022 N12 notice. The death of Ms. Miller prior to the termination of the tenancy invalidated the June 2022 N12 notice and the eviction application. Neither Ms. Miller’s son nor her Estate had the requisite standing under s. 48(1) to continue the application and terminate the tenancy for Ms. Miller’s daughter’s occupation of the Unit.
38First, John Miller had no standing as landlord to continue the application because he did not meet the statutory criteria for landlord’s own use under s. 48(1) of the RTA; the landlord’s sister is not among the listed individuals who may take possession under the landlord’s own use termination provisions.
39Second, the Estate of Ann Miller is not an individual and has no standing to bring an eviction application on the basis of landlord’s own use, pursuant to ss. 48(1) and (5) of the RTA. There was no evidence that any other individual had standing to bring the eviction application based on landlord’s own use.
40The Board referenced Ms. Miller’s Last Will and Testament (the “Will”), which indicates that the residue of the estate was to be divided into four equal parts, to be transferred to each of her four children. However, as the Board notes in its reasons, the Estate had not yet been settled, and the Unit was still registered in Ms. Miller’s name.
41There was no evidence that the Will had been probated or otherwise proved, nor that a personal representative had been appointed. The consent of Ms. Miller’s heirs to the occupancy of the Unit by their sister was therefore of no effect. Moreover, there was no evidence foreclosing any other claims to the ownership of the Unit, such as by the Canada Revenue Agency for unpaid taxes, or by a dependant claimant, nor was there any evidence as to whether the Unit must be sold to pay any debts.
42Control over property changes with the death of its owner. As stipulated by s. 2(1) of the Estates Administration Act, R.S.O. 1990, c. E.22 (“EAA”), all real and personal property that is vested in the deceased devolves to and becomes vested in the deceased’s personal representative as trustee for the persons by law beneficially entitled to the deceased’s property. This vesting is subject to the payment of the deceased’s debts, including claims for dependant support, and other persons’ rights to take by survivorship, among other claims: EAA, ss. 2(1) and 4; Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 58(1). Importantly for the present case, it is the deceased’s personal representative that has the power to dispose of and otherwise deal with the real property vested in the personal representative: EAA, s. 16. Ms. Miller’s Will reflects these provisions: it requires her personal representative to pay all of her debts and empowers her personal representative to sell or retain all of her assets, which would include the Unit.
43Accordingly, the Board and the Divisional Court erred by treating the addition of the Estate as a mere procedural matter. There was no jurisdiction to make the substantive amendment to cure the substantive flaws of the June 2022 N12 notice and the eviction application. Section 183 of the RTA is expressly procedural; the requirement that the Board must adopt expeditious procedures does not allow the Board to correct substantive errors. Similarly, s. 187(2) of the RTA, allowing the Board to add or remove parties as the Board considers appropriate, does not permit the Board to correct a nullity nor to add a party whose standing is impossible to ascertain. Finally, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), by which the Board’s rules and practices are governed, does not permit the Board’s substantive amendment in this case.
44Until the legal representative of the Estate is appointed or the legal owner of the Unit is known, it is impossible to ascertain who the individual landlord is for the purpose of determining whether that individual has standing to invoke s. 48(1) of the RTA.
45It was therefore an error in these circumstances for the Board to allow the eviction application, terminate the tenancy and evict the appellant.
e. Second issue: interpretation of s. 71.1 of the RTA
46I accept that the Board erred by amending the eviction application to include the details of the March 2022 N12 notice that had not been included in the application at the time of filing. The Board erred by treating the absence of the details of the March 2022 N12 notice as a mere procedural defect when it was a substantive deficiency that could not be cured by amendment. The Board’s decision to amend the eviction application undermined the remedial, tenant-focused purpose of the RTA that informs the objective of s. 71.1.
47The purpose of s. 71.1 of the RTA is, among others, to prevent abuse of the landlord’s own use provision under s. 48(1). The addition of s. 71.1 to the RTA was made through Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020, S.O. 2020, c. 16, Schedule 4. The Hansard Report for this Bill states that the intended purpose of s. 71.1 was to “help adjudicators at the [Board] to look for patterns and identify landlords who may be breaking the law.” The comments made by the Minister of Housing further explain this purpose, which accords with the overall purpose of the RTA:
We’re not just suggesting they report successful evictions; we’re proposing that landlords must disclose to the Landlord and Tenant Board any attempt to evict a tenant under the own use or repair and renovation provisions in the last two years. This would help adjudicators at the Landlord and Tenant Board to look for patterns and identify landlords who may be breaking the law.
Sadly, my ministry has heard about increasing abuses of “own use” evictions, so we’re proposing that if a landlord wants to evict a tenant to use the unit themselves, they would have to tell the Landlord and Tenant Board if they have done this before or if they have tried, even unsuccessfully, to do it before, so we could help our adjudicators look for patterns and so that they could identify landlords who may be breaking the law. [Emphasis added.]
48The Board has interpreted the intention of s. 71.1 as ensuring transparency for both tenants and the Board, so that tenants have full knowledge of the details of all previously delivered N12 notices and the Board has the evidence required to determine whether the landlord delivered the relevant termination notices in good faith: see, for example, Ben-Margi v. Yi, 2024 ONLTB 64298, at para. 15; Zuidersma v. Duke, , at para. 7. The Board’s caselaw indicates that s. 71.1 was added to address and counteract “the perception that sections 48, 49 and 50 [of the RTA] were being used by landlords to unlawfully evict tenants”: 2709 Lakeshore Holding Inc. v. Offei et al, 2024 ONLTB 2711, at para. 29; Murray v. Lynch, 2025 ONLTB 31412, at para. 9.
49In furtherance of these objectives, s. 71.1 stipulates what must be included in the landlord’s eviction application and prescribes the serious consequences for a failure to do so. It requires the landlord to file an affidavit, attesting to the landlord’s own use in accordance with s. 72(1), at the same time as the eviction application is filed. Section 72(1) prohibits the Board from making an order terminating a tenancy and evicting a tenant unless the affidavit is filed. Section 71.1(2) prohibits the acceptance of the eviction application for filing without the affidavit. Similarly, s. 71.1(3) requires the landlord to set out the details of every N12 notice given within two years prior to filing the eviction application; s. 71.1(4) requires the Board to refuse to accept the eviction application for filing if the landlord has not complied with s. 71.1(3).
50With the legislative purposes in mind, I turn to interpret the language of the provisions in issue. For ease of reference, I reproduce ss. 71.1(3) and (4):
Previous use of notices under s. 48, 49 or 50
(3) A landlord who, on or after the day subsection 11 (2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application
(a) indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different rental unit; and
(b) set out, with respect to each previous notice described in clause (a)
(i) the date the notice was given
(ii) the address of the rental unit in respect of which the notice was given
(iii) the identity of the intended occupant in respect of whom the notice was given if the notice was given under section 48 or 49, and
(iv) such other information as may be required by the Rules.
Non-compliance with subs. (3)
(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).
[Emphasis added.]
51In my view, the use of the word “shall” requires the above provisions to be read as mandatory. In Re Manitoba Language Rights, , [1985] 1 S.C.R. 721, the Supreme Court of Canada held that “shall” is to be interpreted presumptively as imperative unless such an interpretation would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless: at paras. 27-33. That is not the case here. Rather, interpreting “shall” as mandatory in these provisions enhances the specific purposes of s. 71.1 and the overarching remedial objective of the RTA to protect tenants from unlawful evictions.
52The requirement to disclose details of past notices of termination is not only to benefit the particular tenant who is subject to the notice, but, as indicated in the above summary of the Hansard Report, also to permit the Board to monitor possible misuse of this ground of eviction. The fact that a particular tenant may already know about a notice omitted from an eviction application is not relevant to the Legislature’s objective of ensuring landlords disclose the information that the Board requires to “look for patterns” to “identify landlords who may be breaking the law”.
53Tenants who appear before the Board are often self-represented, vulnerable, and unaware of their legal rights. Section 71.1 cannot have its intended effect if there are no meaningful consequences for a landlord’s failure to comply. The Board’s interpretation frustrates this purpose and renders s. 71.1(3) of no effect for tenants or the Board. In most cases, there is no way for a tenant to know whether the landlord has disclosed details of all of the previously served N12 notices. There is no way for the Board to know in any case, as there is no screening mechanism at intake to detect whether such disclosure has been made, as the Board’s counsel fairly acknowledged during the appeal hearing: see, also, Elkins, at paras. 42, 47, 55, 64, 65.
54These provisions are mandatory. There are no provisions under the RTA or SPPA that give the Board any discretion to accept an application for filing or to make an order terminating a tenancy and evicting a tenant if these provisions are not complied with. If the Legislature had wished to provide for discretion, it would have been a simple thing to include such a provision in s. 71.1, as it did elsewhere in the RTA. For example, with respect to the Board’s power on eviction applications, s. 83(1) provides that “the Board may, despite any other provision of this Act or the tenancy agreement” refuse to grant the eviction or postpone the enforcement of the eviction order. In contrast, s. 71.1 contains no such permissive language.
55The legislative objective of these provisions is clear: the N12 notices inform the legitimacy of the landlord’s reliance on s. 48(1). The Board’s decision to amend the eviction application effectively treated these provisions as discretionary and procedural, rather than mandatory substantive requirements that fulfill the legislative objective of the RTA by protecting against abuse of the landlord’s own use termination provision. As the RTA stipulates, the application should not have been accepted for filing in the absence of the requisite N12 notice disclosure. As the Board noted, there is no screening process for electronic filing. As a result, this requires the Board to give effect to s. 71.1(4) at the time of the hearing, as it is the only time to do so. This substantive deficiency cannot be cured by amending the eviction application. The respondent’s eviction application should not have proceeded in the first place and should have been dismissed. The eviction application was therefore a nullity.
f. Conclusion
56The respondent argues that allowing this appeal merely delays the inevitable. Similarly, the Board observes that allowing this appeal in the face of this inevitable result is a waste of its resources and undermines what this court emphasized in Chiarelli, at para. 74, is the “simplified and fair framework for the resolution of land-tenant disputes.”
57These submissions, respectfully, miss the point. Administrative efficiency can never serve to undermine the fundamental purposes of remedial legislative provisions designed for consumer protection. Nor can they override substantive principles of common law and statutory law.
58Moreover, there is no prejudice to the respondent in requiring compliance with the RTA and the common law and statutory requirements of estate law. The dismissal of this appeal is no impediment to the delivery of a proper N12 notice by an individual entitled to invoke s. 48 of the RTA and, if the notice is contested, a properly constituted eviction application.
IV. Disposition
59I would allow the appeal, set aside the decisions of the Divisional Court and the Board, and quash the eviction application. The March and June 2022 N12 notices are expired, the June 2022 N12 notice is also invalid, and they cannot be relied upon in any future eviction application.
60I would grant the appellant the costs of this appeal from the respondent landlord, including the leave to appeal application, in the amount of $1,058.02, as requested by the appellant.
61I would further grant the appellant the costs before the Divisional Court from the respondent landlord in the amount of $2,000.
Released: July 16, 2026 “L.B.R.”
“L.B. Roberts J.A.”
“I agree. S. Coroza J.A.”
“I agree. M. Rahman J.A.”
Footnotes
- Because of overlapping issues, this appeal was heard at the same time as the appeal in Shafiq v. Ramsay, 2026 ONCA 517. The two decisions are being released together.
- This court granted leave to appeal on May 15, 2025.
- The residential tenancy scheme in British Columbia, including the definitions of “landlord” and provisions or landlord’s own use, is very similar to the RTA.