Burden of Proof (LTB)
5. It is the Landlord’s obligation to prove on a balance of probabilities the damage was caused by the Tenant. I believe both parties equally and given there was no detailed written incoming inspection signed by the parties to establish the condition of the rental unit, I find on a balance of probabilities the Landlord has failed to prove the Tenant damaged the cupboards.
8. It is the Landlord’s obligation to prove the damage was wilful or negligent. There was no evidence presented to support the damage to the blinds was anything other than normal wear and tear. Although the blinds were bent, in the absence of any explanation from the Landlord as to how the damage occurred, I accept the Tenant’s version of events and deny the Landlord’s claim for the blinds.
4. The Landlord bears the obligation to prove the good faith requirement Feeney v. Noble, 1994 CanLII 10538 (ON SC), (1994) O.J. No. 2049, but is only required to establish that he genuinely intends to live in the rental unit for at least a year. The Landlord’s motives and the reasonableness of proposing the move into the subject unit and the availability of other alternatives are only relevant as circumstantial evidence from which inferences can be drawn when deciding whether a genuine or sincere intention to occupy the unit exists [Fava v. Harrison,  O.J. No. 2678 (Div. Ct.); Clarke v. Bielak,  O. J. No. 4479 (Div. Ct.); Salter v. Beljinac 2001 CanLII 40231 (ON SCDC), (2001) O. J. No. 2792 (Div. Ct.).
10. The key fact in determining the nature of this tenancy is that AM moved into the rental unit a month after Tenant DB did and the handwritten signature lines on the back of the Agreement form are not dated.
11. In making findings of fact under its empowering legislation, the Board has the power to determine “the real substance” of any given transaction regardless of its outward form and, in so doing, may have regard to the good faith of the parties and the pattern of activities at the rental property.
12. While, on its face, the special terms written into the Agreement to Lease create a “joint tenancy” under which the named “Tenants” agree to be jointly and severally liable for all obligations accruing under it, that is not my finding.
13. It was the Landlord’s obligation to prove the terms of this tenancy and, on the evidence before me I do not find that he has discharged that burden.
14. There was insufficient evidence led at the hearing to confirm that the parties took possession of the rental unit at the same time, pursuant to an agreement entered at the same time and under the same terms. Again, the body of the Agreement was mute on the rent amount which as only clarified afterwards by the Landlord’s undated codicil signed only by himself.
6. The primary dispute between the parties is with respect to the amount of rent arrears outstanding.
14. On any application before the Board the person who wants to establish that a certain event happened has the burden of leading sufficient evidence to prove that their version of events is more likely than not. On an application for non-payment of rent, although the landlord as the applicant has the overall burden of proof, a landlord cannot prove a negative.
11. I have considered whether the Landlord was required to give the Tenants an advance warning that she would start charging rent as of a certain date. For example, S.M. Waddams, in The Law of Contracts, 4th ed., 1999, (Canada Law Book Inc.: Toronto), at page 436, indicates there is authority for the proposition that where a condition in a contract is waived, the party waiving the condition may resume strict rights, but only upon reasonable notice: Smith v. Patel et al. (1977), 1977 CanLII 1396 (ON SC), 18 O.R. (2d) 132 (Ont. H.C.J.). However, I find this does not apply to the payment of rent in a residential landlord and tenant relationship. Under the Residential Tenancies Act, 2006 (the ‘Act’), the rent is set by the tenancy agreement, the payment of rent arrears is demanded by serving a Notice of Termination (form N4) under section 59 of the Act, and no other advance warning is required. Once arrears are claimed by the landlord, it is consistent with the law of debtor and creditor to require the tenant to prove that the payments were made as required by the tenancy agreement.
12. For these reasons, I find that the Notice of Termination (form N4) is valid and the rent arrears are as claimed by the Landlord.
In Lanthier v. 963324 Ontario Limited (unreported, December 3, 1992, Ont. Gen. Div.) [summarized in 37 A.C.W.S. (3d) 260], the court indicated that the landlord claiming an exemption pursuant to s. 1 "residential premises" (i) of the Act had the burden of satisfying the court, on a balance of probabilities that a landlord and tenant relationship did not exist: see also Koressis v. Turner (1986), 1986 CanLII 2633 (ON SC), 54 O.R. (2d) 571, 27 D.L.R. (4th) 638 (Div. Ct.), a case involving the Residential Tenancies Act, R.S.O. 1980, c. 452, and R. v. Krukowski (1991), 1991 CanLII 7305 (ON CA), 2 O.R. (3d) 155, 45 O.A.C. 309 (C.A.), a case involving a provincial prosecution pursuant to the Rental Housing Protection Act, 1986, S.O. 1986, c. 26, where it was held that the party asserting the benefit of a statutory exemption must prove such a claim.