During this pandemic, Canada Post continues to deliver registered mail without attempting to get the recipient to sign for it. If this situation continues, could it cause problems for landlords who will have to prove receipt of their lease renewal notices?
Still no signature for registered mail
According to Canada Post's administrative directive, the company no longer asks customers to sign, except for the following products:
- Registered mail
- XpresspostTM certified
- Items requiring proof of identity
- Items requiring proof of age
- Cash on delivery items
- Items subject to customs duties
However, this information is false, noted CORPIQ, which put the process to the test by sending itself a few letters in November, in different regions. Even when the addressees were present when the letter carrier passed by, the letter carrier did not ring the bell and even less required a signature. On the Canada Post website, the tracking system displays the mail as "delivered".
Subsequently, during a discussion between CORPIQ and Canada Post, an agent acknowledged that signatures were no longer required for registered mail.
In the past, the housing tribunal has already ruled that "delivery" of correspondence is not sufficient, since the meaning of the word "given", as written in the Law, must be interpreted as "received". Proof that the tenant has the mail in hand, however, does not exist without a signature on his or her part.
CORPIQ has asked the Quebec government that the Tribunal administratif du logement (TAL) adopt an administrative directive, in response to what Canada Post told us, in order to prevent landlords and tenants from having to resort to more costly means of notification to prove receipt of their correspondence, such as a bailiff for example.
This request was denied. The government believes that a notice can be given by hand, by courier, by technological means, or by a bailiff, among other means...
However, it would have been simple for the TAL to adjust to the constraints in this time of pandemic and to issue a directive to accept "delivered" mail. In the mid-1990s, the president of the Régie du logement at the time, decided that his tribunal would henceforth send its notices of hearings by regular mail, a government service reputed to be reliable. He had done so despite the contrary opinion of the Judges themselves, who felt that registered mail was unavoidable in the legal field (in practice, it was often even more inefficient, as defendants refused to retrieve their registered mail and did not show up for the hearing).
Subsequently, the judges agreed with this change and the validity of regular mail for notices of hearing was never again questioned, as the case law shows.
However, their interpretation is quite different with respect to landlords and tenants who, unlike the TAL, must always prove receipt of their mail by the other.
CORPIQ was able to see what the Tribunal's information officers respond to callers on this subject. Indeed, they say that it is important to have proof of receipt. They add that the acceptance of proof of delivery without signature is left to the discretion of the administrative judges. The agents suggest either re-sending the notification by another means or checking with the tenant, by e-mail, text message or message, that the tenant has received the document.
In recent decisions of the TAL since the pandemic, mail with proof of "delivery" but without a signature has been accepted by the judge. In at least one other case, the judge instead refused to accept correspondence with only proof of "delivery", but instead gave the parties one month from the date of the hearing to agree to the renewal of the lease. Unfortunately, it appears that the assessment of proof of delivery is primarily at the discretion of the judges. It would be better to have an administrative direction first, and then, if necessary, the intervention of a judge. Thus, there remains a risk that a notice may be declared null and void because the recipient of the registered mail has not signed it.
In addition to the expensive bailiff option, a "technological means" may be used, the government says. CORPIQ offers its Pronotif® service. This low-cost e-mail application certifies the transmission, reception, opening and even the attachment. The tenant cannot therefore deny having been notified, as some have tried (unsuccessfully) to do at the hearing. However, it is important to have proof that the tenant originally provided his or her e-mail in the lease or an attachment and explicitly agreed to this means of correspondence.
Neither the Quebec government nor the Tribunal administratif du logement seems to grasp the seriousness of the situation, as hundreds of thousands of lease renewal notices will be in circulation by the beginning of 2021. Proof of receipt (of the notice of lease amendment and the tenant's response) has a major impact on the parties. Without proof of receipt by the landlord of its intention to vacate, a tenant could have his or her lease renewed when they do not wish to do so.
CORPIQ invites its members to communicate quickly with us if it turns out that a judge does not recognize the validity of a "delivered" letter without proof of receipt (signature). Whether this mail was sent by the landlord or by the tenant.