Ontario S3 Motion: Reviving an L1 Eviction Order the Tenant Had Voided

Sometimes a tenant tells the Ontario Landlord and Tenant Board (LTB), without any hearing, that everything owing was paid before an arrears eviction order became enforceable, and the LTB voids the order on that basis. If you, the landlord, say the money was not all paid, Form S3 is how you challenge that order to void and ask the LTB to revive your eviction order.

At a glance

How an order to void comes about

Under RTA s. 74(4), an L1 eviction order for arrears is void if, before it becomes enforceable, the tenant pays the arrears, the further rent that has fallen due, any NSF charges and any costs ordered. Where all of that is paid to the LTB, LTB staff simply confirm by notice that the order no longer has effect (s. 74(5)). Where some or all of it was paid straight to the landlord, however, the tenant can file a motion without notice to you, supported by an affidavit describing the payments, and the LTB decides it on paper, with no hearing (s. 74(6)–(8)).

The S3 is your reply to that one-sided process. Within 10 days, and on notice to the tenant, you may move to have the order to void set aside (s. 74(9)). A hearing must then be held, at which the LTB (s. 74(10)):

1. refuses your motion where full payment was made in time, before enforceability;
2. refuses it if the tenant paid late but has paid the full amount by now; or
3. in every other case, sets aside the order to void and confirms that the eviction order is not void.

When the S3 is the right response

The S3 fits where a tenant's motion under s. 74(6) produced the order to void but the full amount never actually reached you. Typical scenarios: a cheque or transfer bounced, the tenant counted money that you applied elsewhere, or the affidavit simply overstates the payments.

It is the wrong response in three situations:

• The order to void followed a hearing. The form limits the S3 to orders made without a hearing; after a hearing, the route is a Request to Review an Order.
• The tenant paid the LTB in full. The result is then a staff notice under s. 74(5) and Rule 20.2 rather than an order on a motion.
• The tenant paid after enforceability but before eviction. That is a separate tenant motion under s. 74(11), heard on notice to the landlord and available only once per tenancy agreement.

Timing

Ten days. Count 10 calendar days from the issue date of the order to void, leaving out the issue date itself (s. 74(9); note 2 on the form). A last day falling on a weekend or LTB holiday rolls forward to the following business day under Rules 1.12–1.14. For instance, if the order to void issued on Wednesday, June 9, 2027, day ten is Saturday, June 19, so the S3 is due by Monday, June 21, 2027.

Missed it? A Request to Extend Deadline is possible, but except in exceptional circumstances it has to be filed together with the S3 (Rule 16.2).

Service. The motion has to be served 48 or more hours before the time on the Notice of Hearing (Rule 5.11). Ordinarily the LTB itself serves the Notice of Hearing along with the motion unless it directs a party to do so (Rule 5.1). Read your Notice of Hearing for any such direction, and if you do serve, file a Certificate of Service.

In the meantime. The order to void remains in force until the Board decides (note 3 on the form). Your eviction order cannot be enforced during that period.

Completing the S3

The current version, dated 01/04/2022, is a single page.

• File Number: the file number of the order to void, which ends in "-VO".
• Between: the landlord or co-op name and the tenant or member name, matching the orders exactly.
• Address of Rental Unit: the full address with the unit number.
• The request line: fill in your name and the "-VO" order number and date in the sentence asking the Board to set that order aside.
• The reasons line: this is where the motion is won, and the answer is arithmetic. Lay out:
• the amount the eviction order said had to be paid to void it, including any rent that fell due afterward;
• each payment that really arrived, showing how, when and how much;
• any cheque or transfer that bounced; and
• how much was still missing on the day the eviction order became enforceable.

Then point out exactly where the tenant's affidavit goes wrong. A short illustration: the eviction order required $3,600, and another $1,800 in rent fell due before the tenant paid, so $5,400 was needed. You received a $3,600 e-transfer and a $1,800 cheque that came back NSF, leaving a $1,800 shortfall. Have your rent ledger and bank records ready for the hearing. - Signature: tick landlord, co-op or representative, give your first and last name and phone number, and sign and date.

Filing the S3

Use the Tribunals Ontario Portal; no fee is charged, and the LTB schedules a hearing once the S3 is in. A tenant bringing a set-aside motion has to deliver it to the Court Enforcement Office, but a landlord filing an S3 does not (Rule 25.1).

Errors that leave the order to void in place

1. Letting the 10 days pass. With no S3 on time, and no extension request filed with it, the order to void stands and your eviction order is gone.
2. Filing an S3 after a hearing. If a hearing produced the order to void, the S3 is the wrong tool; request a review within the review deadline instead.
3. Reasons with no numbers. A bare statement of non-payment carries little weight. The question for the Member is whether every dollar required by s. 74(4) was paid, so give the figures.
4. Leaving out rent that came due. What the tenant had to pay to void the order includes rent that would have fallen due up to the payment date (s. 74(4)(b)). Many of these disputes turn on that point.
5. Overlooking later payments. If the tenant has paid the full amount since, the Board is required to refuse your motion (s. 74(10)(b)). Check the ledger before the hearing.
6. Service problems. If the LTB directed you to serve, unproven service or service inside the final 48 hours can sink the motion (Rules 5.11, 5.17).
7. Sending the eviction order to the Sheriff regardless. The order to void remains in effect until the S3 is decided.

After the hearing

Section 74(10) governs the decision. Where the Board cancels the order to void and declares the eviction order still valid, you can take the eviction order to the Court Enforcement Office for enforcement. If it refuses, the eviction order stays void and the tenancy carries on.

Frequently asked questions

What exactly is an LTB "order to void"?

It is an order made under RTA s. 74(6), without a hearing, declaring an L1 eviction order void on the basis that the tenant paid everything owing, with some or all of the money going directly to the landlord, before enforcement became possible.

What is the deadline for an S3?

Ten days from the issue date of the order to void (s. 74(9)).

The tenant paid the LTB directly. Is an S3 available?

Usually not. When the whole amount is paid into the LTB, staff issue a notice of voidness under s. 74(5); no motion order is made. If you think the amount was wrong, consider whether a review is open to you.

What should I bring to the S3 hearing?

The original eviction order (it shows the amount needed to void), your ledger and bank deposit records, notices of any NSF items, and proof of service if you were the one who served the motion.

Official sources

• S3 – Landlord's Motion to Set Aside an Order to Void (PDF)
• Residential Tenancies Act, 2006, s. 74
• LTB Rules of Procedure, Rules 5.11, 16.2, 20 and 25
• LTB Forms, filing and fees