Understanding Tenant Rights and Responsibilities in Delayed Rent Payment Cases

Dear friends,

I want to share with you a very recent case from the Divisional Court — the court that hears appeals from the LTB.

Briefly, the situation was as follows. The tenant paid rent with delays, often not in one payment but in several payments at different times, and she also underpaid part of the rent because she decided that if she had counterclaims against the landlord, she was entitled to withhold part of the rent (spoiler — she is not).

At the LTB, the adjudicator heard the case based on persistent late payment of rent and concluded that the tenant should be given a conditional order: if she failed to start paying the rent in full and on time, the landlord would be entitled to evict her without a further LTB hearing.

The tenant did not like this outcome. She applied for a review at the LTB. The review upheld the original decision, after which she appealed to the Divisional Court.

Apparently, she had plenty of time and even more imagination, so she advanced three main arguments as to why the LTB decision should be overturned.

1. Rent was not paid late because she paid it in instalments. In her view, “rent” means the entire rent amount, and if at least part of it is paid on time, there may be arrears, but there is no late payment.

2. The legislation allows tenants to raise claims against the landlord at a hearing for non-payment of rent. Since there were arrears in her case, she argued that she should have been allowed to raise such issues. At a hearing for persistent late payment of rent (unfortunately for her), such issues cannot be raised. Therefore, her rights were allegedly violated.

3. The landlord also filed a separate application for non-payment of rent based on the same factual circumstances. According to the tenant, this amounted to an abuse of process.

The Court considered all of her arguments and found no basis to interfere with the LTB’s decision. For those interested, I am attaching the case.

I want to comment on several points as a practising paralegal. At the LTB, many adjudicators take the position that non-payment of rent is not the same as late payment of rent. A significant number of landlord applications have been dismissed on the basis that the landlord filed for late payment when the case was really one of classic non-payment.

The situation is further complicated by the fact that in cases of non-payment, even after a hearing, the tenant may pay the full amount owing and avoid eviction. In cases involving persistent late payment of rent, that option does not exist — the result is a non-voidable termination order.

In this decision, the Court essentially stated that non-payment of rent is also a form of late payment, because a late payment, by definition, means that rent was not paid in full on the date it was due.

This does not mean that if a tenant completely stops paying rent, the landlord can automatically proceed solely on the basis of late payment. Final clarity should come from Bill 60, which is expected to clearly define what constitutes persistent late payment of rent.