Monsef v Gunn, 2021 CanLII 82792 (ON LTB)
Order under Section 77
Residential Tenancies Act, 2006
File Number: TNL-29631-20-SA
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In the matter of: |
27020 KENNDEY ROAD GEORGINA ON L0E1S0 |
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Between: |
Parasta Monsef |
Landlord |
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and |
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Jennifer Gunn Rodney Quinn |
Tenants |
Parasta Monsef (the 'Landlord') applied for an order to terminate the tenancy and evict Rodney Quinn and Jennifer Gunn (the 'Tenants') because the Tenants entered into an agreement to terminate the tenancy. That application was resolved by order TNL-29631-20 issued on January 22, 2021.
The Tenants filed a motion to set aside order TNL-29631-20.
This application was heard by videoconference on March 3, 2021.
Only the Tenants attended the hearing. As of 2:56 p.m., the Landlord was not present or represented at the hearing although properly served with notice of this hearing by the Board.
Approximately 20 minutes after the hearing was concluded the Landlord's Legal Representative Claudette Ricketts attended the hearing. Ms. Ricketts testified that she had been attempting to join the videoconference since prior to 2:30 pm but was unable to log in. She testified that she called the Board but they were unable to assist her in logging in and they advised her to keep trying and that if she was unsuccessful she would have to await the order and request a review of the order.
Determinations:
1. The Tenants signed an N11 Agreement to Terminate a Tenancy with a termination date of December 31, 2020 and the Tenants did not move out of the rental unit by the termination date set out in the agreement.
2. The Tenant Jennifer Gunn (‘JG’) testified that the Tenants signed the N11 under duress and without fully understanding the document. She testified that on October 27, 2020 the Landlord handed her the document and refused to leave until it was signed. She testified that she asked for time to get help but the Landlord refused and demanded it be signed
and given back before she left. JG testified that both Tenants signed the document as they felt bullied and wanted the Landlord to leave.
3. The Tenant Rodney Quinn (‘RQ’) testified that the Landlord demanded the form be signed “right here and right now”, his wife JG was in tears and so they just signed the form to get the Landlord to leave. He testified that he did not speak to the Landlord and was not present in the course of the conversation regarding the N11, his wife and the Landlord were outside speaking, and she brought the form to him to sign it. He testified that they did not want to terminate the tenancy or vacate the rental unit.
Legal Analysis
4. I am not satisfied that the Tenants did not understand what they were agreeing to. The Tenants knew it was a termination agreement and they were agreeing to vacate the rental unit on December 31, 2020.
5. Even if I accepted that the Landlord’s pressure was stressful to the Tenants, the stress that the Tenants felt in the face of the Landlord’s request does not constitute duress. The Tenants testified that the Landlord handed JG the N11, discussed it with JG, and waited outside for them to sign it. JG took the document inside to her husband, discussed it with him and they both signed it. JG then returned outside and gave the Landlord the N11. In the present case, there was no evidence of threats and, as the Court of Appeal for Ontario recognized in Dos Santos v. Waite, 1996 CarswellOnt 3554 (C.A.) states, there is a difference between stress and duress, and stress is not enough to void an agreement. The Tenants testified that the Landlord showed up and asked for the N11 to be signed and asked them to move out, I am not persuaded that this in and of itself constitutes duress or coercion.
6. The Tenants also take the position that the Landlords should have given them further time to review the agreement or the opportunity to seek legal advice and if she did not the N11 would be unenforceable. I find that a landlord is not required to advise a tenant that they can seek legal advice prior to entering into an agreement contemplated in the Act; the Act does not require this. If the Tenants wished to seek legal advice prior to signing the agreement, they were free to tell the Landlord that they wished to do so. They chose not to do so and will have to accept their decision agreeing to terminate the tenancy. As stated in Dos Santos, settlements are not always weighted equally for both parties. One party may have legal advice, and the other none. A party may later change their mind however, an agreement will not be set aside on these grounds.
7. In the present case the Tenants no longer want to agree to terminate their tenancy. However, the N11 was signed and the Tenants cannot simply change their mind after the agreement was reached.
8. Based on the above, the Tenant’s motion shall be denied. It is clear that the Tenants agreed to terminate their tenancy and then changed their mind and did not move out of the rental unit by the termination date set out in the agreement.
9. Based on the evidence before the Board, in accordance with subsection 77(8)(c) of the Act, I am not satisfied that it would not be unfair to set aside the order. The Tenants’ motion is denied.
10. In the event the tenancy was terminated, the Tenants sought additional time to move out of the unit due to the rental market and the COVID-19 pandemic. I find that the Tenants’ request is not unreasonable. The stay will be lifted May 15, 2021.
It is ordered that:
1. The motion to set aside Order TNL-29631-20, issued on January 22, 2021, is denied.
2. The stay of order TNL-29631-20 is lifted on May 15, 2021.
3. Order TNL-29631-20 is unchanged.
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March 15, 2021
Date Issued Nicola Mulima
Member, Landlord and Tenant Board
Toronto North-RO
47 Sheppard Avenue East, Suite 700, 7th Floor Toronto ON M2N5X5
If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234.