Bad Faith - Re: N12 (LTB)

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-08-11
CLNP Page ID: 1180
Page Categories: [Personal Use Application (LTB)]
Citation: Bad Faith - Re: N12 (LTB), CLNP 1180, retrieved on 2022-08-11
Editor: Sharvey
Last Updated: 2021/12/30


TEL-01943 (Re), 2007 CanLII 75965 (ON LTB)[1]

16. I found [Landlord’s name removed] to be a credible witness to the extent that I believe the Landlords genuinely want vacant possession of the rental unit. It is clear based on the history of proceedings at the Tribunal involving these parties that the landlord-tenant relationship has deteriorated, and the Landlords no longer wish the Tenant to occupy the rental unit. I understand Salter v. Beljinac[2] to mean that once the landlord has established a genuine intention to reclaim the rental unit, the motive behind the landlord’s desire to reclaim the rental unit is irrelevant. Thus, the fact that [Landlord’s name removed] wishes to reclaim the rental unit because of his poor relationship with the Tenant does not detract from the finding that the Landlords genuinely intend to reclaim the rental unit. Similarly, the reasonableness of the Landlords’ reason for seeking to reclaim the rental unit is not relevant.

17. However, as set out above, not only must the landlord establish a genuine desire to reclaim the rental unit, but it must also be established that the landlord is reclaiming the unit for the purpose of residential occupation by the landlord. I find that the Landlords’ proposed use of the rental unit does not constitute “residential occupation”, as that term is used in subsection 48(1) of the Act. A broad array of conduct and activities in the rental unit are consistent with “residential occupation”. For example, as found in TSL-72600, using a portion of the rental unit as a home office/study may be consistent with residential occupation. However, simply leaving a rental unit empty, and not using it for any purpose, cannot be considered “residential occupation”. The plain meaning of these two words, when read together as single term, suggests to me that the unit must be occupied by a person engaged in activities or conduct that is residential, or primarily residential, in nature. This is not the Landlords’ stated intention for the rental unit in the instant application.

18. Subsection 57(1)(a) of the Act supports this interpretation of the term “residential occupation”. Subsection 57(1)(a) provides the tenant with the possibility of a monetary remedy in the event they vacate the rental unit as a result of being served a notice of termination for landlord’s own use (or an order is issued by the Board terminating the tenancy for this reason) and , “ . . .no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit”. If leaving a rental unit empty was considered to be “residential occupation”, then the remedy contained Subsection 57(1)(a) would be rendered meaningless and unavailable, as it would be impossible for a tenant to establish that the landlord or other specified person did not occupy the rental unit with a reasonable time.


[1]

TEL-99411-19 (Re), 2019 CanLII 87593 (ON LTB)

42. So the question before the Board is whether or not the Landlord’s evidence establishes it is more likely than not that the Landlords’ Daughter genuinely intends to move into the rental unit and live there for at least one year.

43. The answer to that question is I do not know if she genuinely intends to move in and live there for more than a year.

44. Although the testimony of the Landlords’ Daughter seems sincere it is totally uncorroborated by school records, medical records with respect to her sister, or floor plans of the Landlords’ living space. Further, no evidence was led as to the ability of the Landlords to cope with the loss of income from the Tenant’s rent or why the Landlords’ Daughter would need a multi-bedroom unit with a separate kitchen and laundry facilities for her own use in her parents’ home.

45. More importantly, the timing of the service of the notices of termination and the sequence of events leading up to the notices being served, raise a rebuttable inference that the eviction is being pursued out of a fit of pique because the Landlords cannot simply get their own way by making demands and treating the Tenant badly.

46. The evidence strongly supports the conclusion that the Landlords believed they could simply demand the Tenant leave at the end of her lease term. When that did not work, they bullied her during the foyer incident. The damage claim was trivial and for all intents and purposes abandoned at the hearing. In other words, the Tenant’s theory that the Landlords are making up grounds of termination to get rid of her because she simply would not otherwise leave, is supported by some evidence before the Board.

47. The Landlords’ failure to lead any evidence rebutting the Tenant’s testimony as to the sequence of events leading up to the service of the notices, means I am left with evidence that indicates it is possible the Landlords’ Daughter intends to move into the rental unit but it is also possible the Tenant is right and the Landlords and their daughter are simply making things up to end her tenancy because the law does not otherwise allow it.

48. As the Landlords bear the burden of proof that means the evidence is insufficient to establish the Landlords’ Daughter genuinely intends to move into the rental unit.

49. If I am wrong in this regard and the Landlords’ Daughter genuinely does intend to move into the rental unit, I would say in the alternative that it would not be unfair in all of the circumstances to deny the application pursuant to s. 83(1) of the Act. The Landlords’ Daughter has a place to live and if she is admitted to medical or graduate school out of town, she will be leaving home in a year and a half. The Tenant is a working single mother who has tried and so far failed to find new accommodation large enough and inexpensive enough for her family. Given the situation here, the Tenant’s circumstances and need outweigh that of the Landlords.

50. This order contains all of the reasons for the decision within it. No further reasons shall be issued.

[3]

Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII)[4]

[2] The Review Order confirmed the Board’s dismissal of the Landlord’s application to terminate the residency of the Respondents (the “Tenants”). The application was dismissed pursuant to s. 83(3)(c) of the Residential Tenancies Act, 2006 (the “Act”) which provides that the Board shall refuse to grant the application where satisfied that, among other things, the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.

[3] The Tenants rent the Landlord’s third floor rental unit at a monthly rate of $1,225.00. They have rented the unit for approximately the last 5 years. The tenancy agreement for the unit expired on May 31, 2017.

[4] In February 2017, the Landlord and his spouse sold their house and moved into the third floor of a house occupied by their children and other relatives.

[5] In May 2017, the Landlord approached the Tenants about increasing the monthly rate to $1,400.00, an amount well in excess of the 1.5% rent increase guideline for 2017. The Tenants refused to pay the increase but indicated a willingness to consider an agreement to increase the rent to $1,300.00 in exchange for the Landlord improving services and facilities to the rental unit. The parties were not able to arrive at an agreement as to any increase in rent or improvements to the unit.

[6] On May 31, 2017, the Landlord served the Tenants with a Notice of Termination (Form N12) which is issued where the landlord, a purchaser, or family member requires the unit for personal possession. The Tenants did not vacate the premises in accordance with the Notice. The Landlord filed an application for an order to evict the tenants on June 5, 2018, and requested the Tenants pay rent arrears each day they stay in the unit after the termination date. The Landlord and Tenant Board (the “Board”) heard the application on August 2, 2018.

[7] In its decision, the Board determined that the application should be dismissed. Although it found that the Landlord, in good faith, intended to occupy the unit pursuant to s. 48(1) of the Act, it ultimately dismissed the application pursuant to s. 83(3)(c) of the Act.

...

[26] The Appeal is dismissed. If the parties are unable to agree on costs they may make written submissions, not to exceed three pages plus attachments each, within 45 days.


[4]

Bonakdarian v Kang, 2020 CanLII 118006 (ON LTB)[5]

7. The onus is on the Landlord to establish that the purchaser in good faith requires the rental unit for the purpose of residential occupation.

8. In the leading case law involving a landlord’s own use application, Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), [2001], O.J. No. 2792 (Div. Ct.)[2], the Divisional Court held that:

the test of good faith is genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal…

9. The Landlord submitted a Declaration of VF, pursuant to subsection 72(1) of the Act, confirming that VF requires the unit for her personal occupation for a period of at least one year. VF provided confirming testimony that she in good faith requires possession of the rental unit for the purpose of her own residential occupation and intended to live in the rental unit for at least one year after the closing date.

10. The Tenant raised several issues to contest the Landlord’s good faith intention and stated that she does not believe that the Landlord and the Purchaser VF will close the sale of the property or in the alternative it is not a sale in good faith. The Tenant also raised several arguments regarding the lack of good faith of the Landlord including the following:

• The sale of the property is not a true transfer of title and is only being made in order to wrongfully terminate the tenancy of the Tenant;
• The Landlord’s application should be denied as the Landlord has issued three prior N12 Notices of Termination to terminate the Tenant’s tenancy in the past;
• The Landlord’s application should be denied pursuant to subsection 83(3) of the Act as there is an outstanding order of the City of Toronto; and
• The Landlord’s application should be dismissed as the Landlord is attempting to sell the rental unit wrongfully including the Tenant’s appliances in the sale.
...

20. It was uncontested that the Landlord had also served the Tenant with the Notices and applications as listed below.

Application Number Grounds Determination
TSL-92202-18 N12 for Purchaser Use Withdrawn by LL as Agreement fell through as the Purchaser withdrew
TSL-98852-18 N12 for Purchaser Use Dismissed for technical reasons
TSL-00881-18 N12 for Purchaser Use Dismissed: Agreement with the current Purchaser was still conditional and not certain to close

21. The Tenant testified that these applications show that the Landlord has acted in bad faith and has repeatedly attempted to terminate her tenancy.

22. The Landlord testified that he brought each of the prior applications in good faith but that there were difficulties with each of them. In the first, he had a valid agreement of purchase and sale as the purchaser failed to close the sale. In good faith, he did advised the Board and the Tenant and the application was withdrawn. This was not a bad faith attempt to terminate the tenancy but confirmed his intention to sell the property.

23. As well, the third application was dismissed as it was brought prematurely as the conditions on the Agreement of Purchase and Sale had not yet been waived. The Landlord testified that once the conditions were waived, he refiled this application in order to close on the sale of the unit.

24. Based on the evidence before the Board, on the balance of probabilities I find that the Landlord has attempted twice to sell the property, with one deal not closing and the other in process. I do not find that this demonstrates bad faith.

[5] [2]

TEL-05397-19 (Re), 2020 CanLII 61344 (ON LTB)[6]

1. The Landlords seek possession of the rental unit for their daughter. She was not called as a witness at the hearing so the Landlords rely on her affidavit sworn July 13, 2019. The affidavit says she works for T.C., has been transferred from Ottawa to Toronto, and needs the rental unit to live in.

2. The issue that arises here is whether or not the evidence is sufficient to establish the Landlords’ daughter genuinely intends to move into the rental unit.

3. Given all of the evidence before the Board I find that the Landlords have not met their burden of proof. I am not satisfied that it is more likely than not that the Landlords’ daughter intends to move into the rental unit. I say this for the following reasons.

4. Prior to the notice of termination being served on the Tenants on August 23, 2019, the Landlords’ representative sent the Tenants a letter dated March 30, 2019. It says the Landlords’ daughter was transferred from Ottawa to Toronto and that she requires the rental unit.

5. But according to the Landlord, his daughter moved from Ottawa to Toronto more than a year prior to that letter, the notice being served, and the affidavit being sworn. She moved in February of 2018. That more than one year delay between the move and the demand the Tenants move out suggests that her move actually has nothing to do with why she allegedly wants to move into the rental unit.

6. The Landlord says that his daughter currently resides with the Landlords. She is getting divorced and needs to move into the rental unit because the Landlords are finding it difficult to have the Landlords’ daughter and their granddaughter live with them. Nothing about this reason for moving is suggested by the affidavit sworn by the Landlords’ daughter.

7. Although this may well be why the Landlords want her to move, the issue for the Board is not whether or not the Landlords genuinely want their daughter to move out of the family home and into the rental unit; the issue is whether or not she genuinely intends to move into it. And the only justification contained in the affidavit for the move is the transfer from Ottawa to Toronto. In other words, there is no evidence before the Board from the Landlords’ daughter that she needs the rental unit because there are recent strains and stresses in her family relationships in the Landlords’ home.

8. Finally, there is a relevant history between these parties.

9. In March of 2017 the Landlords attempted to convince the Tenants to move out without serving proper notice.

10. On March 10, 2017 the Landlords sent an invalid “notice to vacate” to the Tenants saying the Landlords intend to renovate the rental unit and want the Tenants to move out. After obtaining legal information the Tenants sent the Landlords a letter on March 23, 2017 stating that they would not vacate the rental unit. No evidence was led to suggest any renovations were done. The Landlords also have a history of asking for illegal rent increases.

11. That evidence of the history between the parties tends to support the proposition that the Landlords have a tendency to try and skirt the law. That tendency suggests the Landlords may be capable of serving a notice of termination in bad faith.

12. Finally, the Tenants say the Landlords’ daughter has never seen the rental unit. It seems unlikely that someone would want to move into a rental unit sight unseen particularly where there is a young child involved and prior statements have been made by the Landlords about major renovations needing to be done.

13. Given all of the above, I am not satisfied that is more likely than not that the Landlords’ daughter genuinely intends to move into the rental unit. Therefore, the application shall be denied.

14. The Landlords paid the Tenants compensation equal to one month's rent in accordance with section 48.1 of the Residential Tenancies Act, 2006 (the ‘Act’). Pursuant to s. 73.1 an order shall issue requiring the Tenants to pay to the Landlords the compensation paid.

15. This order contains all of the reasons for the decision in it. No further reasons shall be issued.

[6]

TSL-88379-17 (Re), 2018 CanLII 42652 (ON LTB)[7]

43. Section 48(1) requires that, in order to be successful in this application, the Landlord must satisfy me that at the time of the service of the N12 Notice, it required, in good faith, the unit for residential use, in this case by CM.

44. The relevant case law is clear that the test of good faith is genuine intention to occupy the residential unit (Feeney v. Noble (1994), 19, O.R. (3d) (Div. Ct.) (“Feeney”). As indicated in the case law submitted by DC on behalf of the Landlord (Salter v. Beljinac 2001 CanLII 30231 (ONSC DC) (“Salter”)[2], this legal test remains unchanged under the successor legislation (see Salter, para. 25 and 26).

45. However, the subsequent case law also confirms that while the good faith of the Landlord remains the test to be applied in this application, I may also draw inferences about the Landlord’s good faith from the Landlord’s conduct and motives (Fava v. Harrison 2014 ONSC 3352 (ONSC DC)[8])

46. In support of the application, I have the evidence of CM and SM. While CM impressed me as earnest and straightforward, her evidence did not indicate: a) that she plans to sell her condominium of longstanding residence; b) that she has ever seen first-hand the residential unit where she says she wants to live. Her evidence, and SM’s evidence, indicates that CM’s awareness of the residential unit and it suitability as a future residence for her is centrally based upon SM’s suggestion to her of this particular residential unit (among the units in the building or the Landlord’s other holdings).

47. Further, while I put very little weight on the evidence led by the Tenant concerning his investigations of the alleged cockroach infestation at CM’s current home, the Landlord, which carries the burden of proof in this matter, offered no tangible evidence –beyond CM and SM oral testimony - to support the ostensible motivation for CM’s planned move to the residential unit: to flee the continued proliferation of cockroaches in her building and unit. Despite oral evidence of a continuing infestation problem in CM’s current residence, I have not even one document affirming the presence of cockroaches in her unit; or any steps being taken to address this apparently longstanding problem.

48. I do not find the Landlord’s evidence of the suitability of the unit for future family gatherings to be credible or compelling.

49. The Landlord’s evidence does not persuade me, on a balance of probabilities, that the N12 was served in good faith. I am not satisfied, based upon the evidence led by the Landlord, that CM intends to move into the unit.

50. Further, SM and the Tenant have a long and traceable history, involving multiple legal proceedings, both before the Board and in other fora. SM has reported the Tenant to police. The Tenant has brought a civil action against the Tenant which remains ongoing.

51. While the Tenant led, and attempted to lead multiple items, documents and references to describe SM’s character, as I pointed out at the hearing, as per my oral rulings, I find it is inappropriate to attempt to rely on characterizations of CM as a person not worthy of belief to defeat this application. As such, I have not relied upon the myriad of irrelevant documents here. In my view, the Tenant seems inordinately and disproportionately focused on SM as a landlord and as a person.

52. That said, it is indisputable that SM and the Tenant have had a history of conflict. With the evidence before me being that SM was the single nexus between the residential unit and CM’s desire to move in there, and in the absence of evidence that CM actually set foot in the unit and selected this specific space as her future home, I draw an inference that the history between the Tenant and SM may have been a motivation for the service of this N12.

53. On the totality of the evidence here, I am not satisfied, on a balance of probabilities, that the N12 was served in good faith.

54. To be clear, I have not based this conclusion on the myriad of items submitted by the Tenant into evidence which speak to SM’s activities in other fora or other spheres of his life; or the statement of facts and argument put forward in the “factum” which he filed with the Board on the second day of hearing.

55. The Landlord’s application fails the good faith requirement under s.48(1) of the Act and it must be dismissed.

56. In view of my finding above re: good faith, it is unnecessary for me to rule on the Tenant’s request to deny this application under s.83(3) of the Act.

[7] [8]

CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB)[9]

2. The Tenant did not receive an N12 notice of termination which is the relevant Board form when a Landlord seeks possession of the unit for their own use. Instead, the Landlord’s Agent sent the Tenant an email dated April 12, 2017 informing the Tenant that this was “a formal 2 months’ notice to terminate the month to month lease agreement…effective June 14, 2017 as landlord requires vacant possession of the property”. The Tenant submitted this email into evidence. VP testified that the Landlord spoke with him by telephone and told him that his son is moving into the unit and he needed possession of the premises by a certain date.

3. Section 48 of the Act permits a landlord to give notice to terminate the tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by the landlord, landlord’s spouse, a child or parent of the landlord or landlord’s spouse or a person who provides or will provide care services.

4. Section 212 of the Act states that substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient.

5. Section 202 requires the Board to ascertain the real substance of all transactions and activities relating to a residential complex or rental unit and the good faith of the participants and in doing so, may disregard the outward form of a transaction and may have regard to the pattern of activities relating to the residential complex or residential unit.

6. The email notice of termination from the Landlord substantially complies with section 48. The notice informs the Tenant that it is a sixty day notice for the monthly tenancy and the reason for the notice was that the Landlord required possession. Although the email did not state that the possession was for the Landlord’s son, this detail was provided through a phone conversation with the Landlord. Although the termination date in the notice is not the last date of a rental period, subsection 57(1)(a) does not state that the notice of termination must be valid but rather that it is given under section 48 in bad faith.

[9]

TET-84356-17 (Re), 2017 CanLII 94045 (ON LTB)

3. The letter from the Landlord clearly does not constitute proper notice to terminate under section 48 of the Residential Tenancies Act, 2006 (the 'Act'). It is not in the form approved by the Board (see subsection 43(1)) nor does it inform the Tenants of their right to dispute the termination (see subsection 43(2)). But the Tenants did not know that so they set about organizing a move. The Tenants moved out on August 1, 2017.

4. Although the letter given by the Landlord does not constitute proper notice under section 48 of the Act, it is a notice of termination under section 48 for the purposes of s. 57(1)(a). In other words, the Tenants are entitled to make this application. A tenant should not be deprived of the remedies available when a bad faith notice is served just because the landlord failed to serve the notice in the proper form and in compliance with the Act. To decide otherwise would defeat the purpose of section 57 and produce an unjust result.


[10]

SOT-02418-19 (Re), 2019 CanLII 126911 (ON LTB)[11]

1. At the hearing the Tenant requested to amend the application to a T5 and T1 application instead of the T2, as filed. The amended applications were served on the Landlord the day before the hearing. A review of the amended applications reveals that they are nearly identical in pleadings and remedies sought to the T2. Given that this was merely a formal change, the amendment was permitted and the applications proceeded in the absence of the Landlord.

4. This text message is not a notice as it is not in a form approved by the Board, it does not identify the rental unit and it is not signed by the person giving the notice. It therefore does not meet 3 of the 4 requirements for notices under subsection 43(1) of the Act. In addition, it does not inform the Tenant of the consequences of vacating or not vacating the rental unit in accordance with the notice or that the Tenant is entitled to dispute the notice as required by subsection 43(2). Nor does the notice provide all of the details and reasons required under section 48 of the Act.

5. The requirement to pay compensation under section 48.1 and the remedies under section 57 require a notice under section 48 to be given. As no such notice was given, the compensation and remedies sought are not available to the Tenant.

8. In TNT-07318-18, the member held at paragraph 11:

I find that the Landlord gave the Tenant a Notice of Termination in bad faith. The fact that he did not use a Board form is irrelevant to the Landlord’s liability under the Act. The Landlord cannot escape the consequences of his actions by refusing to use a Board form.

[11]

References

  1. 1.0 1.1 TEL-01943 (Re), 2007 CanLII 75965 (ON LTB), <https://canlii.ca/t/25tsg>, retrieved on 2021-07-20
  2. 2.0 2.1 2.2 2.3 Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), <https://canlii.ca/t/gbmx5>, retrieved on 2021-07-20
  3. TEL-99411-19 (Re), 2019 CanLII 87593 (ON LTB), <https://canlii.ca/t/j2hkd>, retrieved on 2021-07-20
  4. 4.0 4.1 Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII), <https://canlii.ca/t/hvqj3>, retrieved on 2021-03-24
  5. 5.0 5.1 Bonakdarian v Kang, 2020 CanLII 118006 (ON LTB), <https://canlii.ca/t/jglgx>, retrieved on 2021-07-20
  6. 6.0 6.1 TEL-05397-19 (Re), 2020 CanLII 61344 (ON LTB), <https://canlii.ca/t/j9dt1>, retrieved on 2021-07-20
  7. 7.0 7.1 TSL-88379-17 (Re), 2018 CanLII 42652 (ON LTB), <https://canlii.ca/t/hs0fp>, retrieved on 2021-07-20
  8. 8.0 8.1 Fava v. Harrison, 2014 ONSC 3352 (CanLII), <https://canlii.ca/t/g77v1>, retrieved on 2021-07-20
  9. 9.0 9.1 CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB), <http://canlii.ca/t/hv7lz>, retrieved on 2020-08-11
  10. TET-84356-17 (Re), 2017 CanLII 94045 (ON LTB), <http://canlii.ca/t/hq25c>, retrieved on 2020-11-27
  11. 11.0 11.1 SOT-02418-19 (Re), 2019 CanLII 126911 (ON LTB), <http://canlii.ca/t/j4jr5>, retrieved on 2020-11-27