Bad Faith - Re: N12 (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-18
CLNP Page ID:	1180
Page Categories:	[Personal Use Application (LTB)]
Citation:	Bad Faith - Re: N12 (LTB), CLNP 1180, <https://rvt.link/5a>, retrieved on 2024-04-18
Editor:	Sharvey
Last Updated:	2023/11/14

Fava v. Harrison, 2014 ONSC 3352 (CanLII)

[16] The question, then, before this Court is whether it was unreasonable for Board Member Van Delft to decide, as required by Board Rule 29.17, that the original order contained one or more serious errors in law justifying review. In our view, it was unreasonable for Board Member Van Delft to so conclude.

[17] We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.

[18] In this case, Board Member Beckett made a finding of fact that the notice that one of the landlords wished to occupy the property was not given in good faith. She decided that the credibility of the landlords was undermined because one of the landlords took the position that she wished to live in the house notwithstanding the other landlord’s belief that the unit was unsafe. In our view, the Board was entitled to take this into account in assessing the landlord’s credibility and in assessing the landlord’s good faith. In our view, Board Member Van Delft’s conclusion restricts the meaning of the term “good faith” to an unreasonable degree. By excluding any consideration of the landlord’s motives in deciding whether the landlord has acted in good faith, she has unduly restricted the consideration the Board must give to that term. We see nothing in Salter or Feeney, supra, to the contrary.

[19] It was also unreasonable of Board Member Van Delft to fail to consider the question of whether the landlord’s review application should have been refused by Board Member Beckett because the landlords were in serious breach of their responsibilities under the Act.

[20] Even if we accept the submission of counsel for the Respondents that it was open to Board Member Van Delft to find that the landlords were not in breach of their responsibilities at the time of the review hearing (a conclusion that is not mentioned in Board Member Van Delft’s decision), in order for Board Member Van Delft to order a review in the first place she had to find a serious error in Board Member Beckett’s decision. Board Member Beckett made a clear finding that, on the date of her decision, the landlords were in breach of their responsibilities under the Act. Thus, it was unreasonable of Board Member Van Delft to fail to address the issue of whether the landlords were in breach of their responsibilities on the date of Board Member Beckett’s decision.

[21] For these reasons, we hold that Board Member Van Delft erred in law by making an unreasonable decision and in undertaking the review, contrary to the requirements of the Board’s rules.

[22] Accordingly, the appeal is allowed and the order of Board Member Beckett is restored.

Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 (CanLII)

[27] "Illegality' is a generic term covering any act not in accordance with the law": Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, [1991] S.C.J. No. 14, at p. 343 S.C.R. As I will explain, it encompasses by-laws that are passed in bad faith.

[43] What, then, constitutes "bad faith"? Many authorities on this question draw upon the decision of Robins J. in Winton, supra. That, too, was a case involving the enactment of a by-law that was within the statutory authority of the municipality (a spot zoning by-law). The Borough of North York rezoned a piece of property in a hasty fashion and with no notice to the property owner in order to prevent its purchase for use as a Zorastrian temple. The existing zoning had permitted use of the property as a church but there was strong community opposition to the proposed use. No planning purpose was put forward to justify the zoning change or the selection of a single spot in the borough as the subject of the amending by-law. The Divisional Court found, at p. 745 O.R., that the by-law was "simply spot zoning calculated to defeat existing land use rights" and concluded that it had been passed in bad faith and did not constitute a valid exercise of the legislative power of North York.

[44] In a frequently cited statement regarding "bad faith", Robins J. said, at p. 744 O.R.:

To say that Council acted in what is characterized in law as "bad faith" is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members: Re Hamilton Powder Co. and Township of Gloucester (1909), 13 O.W.R. 661. But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government.

(Underlining added)

[45] In Equity Waste Management, supra, at p. 340 O.R., Laskin J.A. concluded that "[b]ad faith by a municipality connotes a lack of candour, frankness and impartiality", and that it "includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest". He cited the foregoing passage from Winton with approval. [page360]

[46] The application judge adopted the Winton approach to bad faith as well, holding that the Township Council had "acted unreasonably and arbitrarily and without the degree of fairness, openness and impartiality required of a municipal government". There was ample evidence in the record to support that finding.

Kaye v Ritosa, 2023 ONLTB 74727

15. However, in the appeal to the Divisional Court, Fava v. Harrison, 2014 ONSC 3352 (‘Fava’), paragraph 17 states that “We accept, as reflected in Salter, supra, (Salter v. Beljinac (2001), 201 D.L.R. (4th) 744 (Ont.Div. Ct.)), that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.”

16. In considering the conduct and motives of the landlord in this matter, I find that the Landlord has not proved, on a balance of probabilities, that she desires, in good faith, to occupy the property for the reasons that follow.

17. The Landlord stated, a number of times, that she is unable to continue paying the carrying costs of the rental unit at a loss. This was her stated primary motivation. However, when asked how the act of moving into the rental unit will reduce her financial hardship while she still owns the townhouse in Virgil, and while she cannot clearly say if she will sell or rent that property out, she failed to provide clear reasons. She said she would “consider” selling her townhouse in Virgil, but then she would not commit to her intention to sell, or at another point she said that she cannot sell it.

18. I found the Landlord’s testimony was frequently disingenuous. She said, and it was undisputed, that she is a realtor of over 22 years, with a knowledge of lease agreements. Yet, there was a record of email correspondence that demonstrates that the Landlord never provided the Tenant with a proper, lawful, notice of rent increase in the 9 years he has been living there. The increases appear to have been at guideline amount, but they were nevertheless, provided with insufficient notice, frequently much fewer than 90 days in advance, and never on an official NORI form. The Landlord did not have a comprehensible explanation for this, despite her stated knowledge of lease agreements and, consequently, her knowledge of her obligations under the Residential Tenancies Act, 2006 (the ‘Act’).

19. I also say that her evidence was frequently disingenuous, because, in addition to her surprising unlawful approach to rent increases, the Landlord was also knowledgeable enough to know that it would be a lot easier for her to sell the rental unit if the Tenant signed an N11 agreement to terminate, rather than having to go through the process of serving an N12 notice of termination. The email she submitted, dated February 25, 2023, was, in essence, a threat to the Tenant that if he refused to sign an N11, she would serve an N12 notice of termination. She was knowledgeable enough to include the statement, I assure you that I will move into the condo myself in order to save me money on my expenses…..” as proof, presumably, that in serving the N12 notice of termination she genuinely intends to move in. However, serving an N12 notice of termination because a tenant refuses to sign an N11 is one of the circumstances where refusal of eviction is required, as provided in subsection 83(3)c). Section 83(3)c) of the Act provides that eviction should be refused if it is being carried out in retaliation for a Tenant enforcing their legal rights. In this case, the Tenant would be enforcing his legal right to refuse to sign an N11. Threatening to evict someone because they fail to sign an N11 agreement to terminate is, I find, also a circumstance for refusal of eviction, pursuant to subsection 83(3)(a), i.e. serving an N12 merely to rid oneself of a tenant in order to sell the rental unit is a serious breach of the landlord’s responsibilities under the Act.

20. The Landlord ultimately failed to explain how moving into the rental unit would solve her financial problems. She also failed to provide credible reasons for moving out of her home of many years in Virgil with a genuine intention to move to a condo in Toronto that she has never lived in, and for which she has never expressed any interest to live in. The Landlord testified far more vehemently, and at length, about her financial difficulties rather than her family connections and support network in Toronto. On the contrary, she testified about her support network and community in Virgil where she currently lives. There is, on the other hand, documentary evidence of the Landlord’s desire and intention to sell the rental unit rather than move into it. Selling a unit is not a valid purpose, under the Act, for serving an N12 notice of termination.

21. Therefore, upon examination of the motives and conduct of the Landlord, I draw the inference, that the Landlord does not, on a balance of probabilities, genuinely intend to move into the rental unit. Her application will be dismissed.

Velauthapillai v Matthews, 2021 CanLII 149902 (ON LTB)

31. Once a landlord has contracted with a tenant to provide housing pursuant to a residential lease agreement, the tenant is afforded security of that tenancy under the Act. The landlord is not permitted to terminate the tenancy except in accordance with the Act.

32. In this application the onus rests on the Landlord to establish it is more likely than not that the Landlord’s son P.N. requires possession of, and genuinely intends to move into, the rental unit for a period of at least one year.

33. Subsection 48(1) of the Act states:

A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year…

34. A genuine intention to regain possession for the purpose of residential occupation by a landlord or a family member (as defined by the Act) must be based on an honest and sincere need that constitutes more than a short-term occupancy. If this is established, the conclusion is that the landlord has met the test of requiring the unit. (Beljinac v. Salter, 2001 CanLII 40231, (Div. Ct.) at para. 27 (“Salter”); Feeney v. Noble (1994), 19, O.R. (3d) (Div. Ct.).

35. A landlord must show good faith in commencing the N12 Notice process. He/she/they may have several occupancy options to consider. The Board will not inquire about those options except in compelling circumstances, e.g. where the choice of this specific unit is relevant to determining whether the landlord is acting in bad faith. (Salter, at para. 26)

36. It the tenant opposes the application and alleges bad faith conduct, the Board may consider the following factors in making its determination:

(1) whether the landlord or a member of the landlord’s family needs the unit, and whether the person taking occupancy is actually going to reside in the rental unit for a minimum of one year, but not on a casual or intermittent basis; and

(2) whether the landlord’s intention in choosing this unit is made in ‘good faith’, that is without an ulterior purpose which unfairly jeopardizes the tenant’s security of tenancy, taking into account:

(a) the conduct, and the motives (reasons and incentives) of the Landlord in choosing this unit, and

(b) whether the landlord’s intention in choosing this unit is genuine, meaning it is honest and sincere

37. In Salter, at para. 8, the court held that:

“The finder of fact must always weigh the various facts and inferred motives attributed to the landlord to determine whether or not the landlord's professed intent is genuine in seeking to get possession of the unit for a family member.”

38. Subsection 202(1) of the Act, gives the Board the authority to ascertain the real substance of all transactions and activities relating to a rental unit and the good faith of the participants.[my emphasis]

39. Therefore, in a contested application, the landlord’s reasons or motives may be relevant to deciding ‘good faith’. The Board is entitled to draw inferences from the evidence, both in favour of and adverse to, the landlord’s stated intentions. Evidence presented through oral testimony may lend credibility to the landlord’s claims or, conversely, it may undermine the credibility of landlord.

40. If the landlord has ulterior motives, and the landlord’s conduct tends to prove the existence of those disingenuous motives, the reasonable conclusion is that the landlord is acting in ‘bad faith’. That is because a dishonest or insincere intention cannot be in ‘good faith’.

TSL-84456-17 (Re), 2017 CanLII 60269 (ON LTB)

24. Based upon the totality of the evidence before me, I am not satisfied that the Landlord has discharged this onus upon him. I am not convinced that the Landlord has a “…genuine intent to reside in the property”.

25. While the Landlord has led evidence that he intends to move into the unit and reside there, TS has testified that this application comes in the context of an ongoing dispute about alleged damage to the unit by TS and a previous attempt to get an order from the Board to evict the Tenants. TS argued that the objective of this application is simply to get TS out of the unit.

26. While the Landlord had the opportunity at the hearing to challenge this allegation, he did not ask TS any questions in cross-examination. Further, the Landlord refused to answer most questions in cross-examination by TS when inquiries were posed to him.

27. In this context, the Landlord’s failure to answer questions in cross-examination raises the issue of whether I should draw an adverse inference from the Landlord’s lack of response.

28. In The Law of Evidence in Canada, 4th ed. by Lederman, Bryant and Fuerst, the test for an adverse inference is described as follows:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it [emphasis added].

29. The Landlord’s failure to provide responses to questions on cross examination, which evidence was within his ability and knowledge to give, in my view, indicates that such evidence would not have been favourable to the Landlord and, therefore, I am drawing an adverse inference from his lack of response to these inquiries.

30. As the Divisional Court in Fava has confirmed that I may draw inferences from the totality of evidence presented about the Landlord’s “genuine intention to reside in the property”, I am not satisfied, on a balance of probabilities, based upon the totality of evidence provided at the hearing, that the Landlord in good faith intends to reside in the residential unit.

31. As such, the Landlord has not met the onus upon him to satisfy the “good faith” requirement under s.48 of the Act. This application will be dismissed.

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

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 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.

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.

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

[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.

Bonakdarian v Kang, 2020 CanLII 118006 (ON LTB)

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.), 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.

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

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.

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

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”), 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))

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.

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

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.

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.

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

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.