Law360 Canada (July 24, 2026, 11:22 AM EDT) --
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| Balvinder Kumar |
The law governing residential tenancies under the
Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), has evolved significantly since its enactment. A recent landmark decision from the Ontario Court of Appeal has fundamentally reshaped how risk is allocated in residential tenancy litigation in Ontario.
The most frequently adjudicated matters before the Landlord and Tenant Board are eviction applications. Eviction orders give rise to review hearings, motions to stay eviction orders, and appeals.
In
Miller Estate v. Arguelles, 2026 ONCA 518, the court has strengthened tenant protections when the landlord applies for tenant eviction during “landlord’s own use” (N12) evictions. The court very categorically stated that a landlord’s death invalidates an N12 notice and that failing to disclose prior N12 notices on an application is a fatal error that the board cannot cure.
In this case, the landlord died after serving the N12 notices (issued in March and June 2022) and before the eviction application was heard. According to the tenant, the death of the landlord invalidated the notices, and she refused to vacate the subject property. The Landlord and Tenant Board allowed the application of the landlord, replaced the landlord’s name with the name of the landlord’s estate, amended the application to disclose the missing details of the prior N12 notice, and terminated the tenancy.
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The tenant’s review of that decision by the board and subsequent appeal to the Divisional Court were dismissed. The tenant appealed the decision of the Divisional Court. Two issues before the appellate court were: 1) whether the landlord’s death made the N12 notice invalid and the eviction application a nullity, and 2) whether the board had jurisdiction to hear the landlord’s application despite the fact that the landlord failed to include the details of the previous N12 notices served within two years of the eviction application. The court allowed 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 eviction application, which relied on both the invalid June 2022 N12 notice and incomplete 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. The appellate court set aside the decisions of the Divisional Court and the board and quashed the application for the eviction.
What I like about this case is that this appeal has exquisitely provided 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.
The ruling not only emphasizes that landlords must strictly comply with the procedural requirements of the
Residential Tenancies Act before evicting a tenant, but also protects tenants from inadequate N12 notices. But the appellate court did not stop there — it also identified and applied the appropriate standard of review and principles of statutory interpretation to ss. 48 and 71.1 of the RTA, while highlighting the legislation’s remedial purpose.
According to s. 210(1) of the RTA, an appeal from the board’s decision is limited to questions of law and procedural fairness. The fact that the Divisional Court failed to identify and address the board’s error of law is an error of law. The statutory interpretation is referred to as “text, context and purpose” and requires that the statutory words must be read in their entire context with the scheme and object of the statute and legislative intention and meaning. While stating that s. 1 of the RTA mentions the purpose of the RTA is providing protection for residential tenants from unlawful rent increases and unlawful evictions, the court also describes the RTA as a remedial legislation with a tenant protection focus.
The RTA must receive a “fair, large and liberal construction” that will ensure its protective purpose is attained, resolving any ambiguity in favour of tenant protection objects. The appellate court has beautifully provided a detailed interpretation of s. 48 and s.71.1 of the RTA:
The plain language of s. 48 requires that 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 a child or parent of the landlord or the landlord’s spouse. Section 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.”
“A 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.… To 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…. 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.”
“The purpose of s. 71.1 of the RTA is … 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.”
“[Section] 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).”
“Tenants 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 legislative objective of these provisions is clear: the N12 notices inform the legitimacy of the landlord’s reliance on s. 48(1).”
Balvinder Kumar practises real estate law (residential and commercial) and is a freelance writer and author with LexisNexis.
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