Notice Law - N12 - (Compensation Under 48.1)
48 (1) 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 by,
- (a) the landlord;
- (b) the landlord’s spouse;
- (c) a child or parent of the landlord or the landlord’s spouse; or
- (d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
48.1 A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 48.
56 Where a rental unit becomes separately conveyable property due to a consent under section 53 of the Planning Act or a plan of subdivision under section 51 of that Act, a landlord may not give a notice under section 48 or 49 to a person who was a tenant of the rental unit at the time of the consent or approval.
8. Section 48.1 of the Act provides that, when a landlord gives a tenant a notice of termination under section 48 of the Act on the ground that the landlord requires possession of the rental unit for the purpose of residential occupation, the landlord “shall compensate a tenant in an amount equal to one month’s rent”.
9. It is noteworthy that section 48.1 does not state that the landlord must pay compensation of one month’s rent to the tenant; rather, it states that the landlord must compensate that tenant in an amount equal to one month’s rent. That compensation could be provided in a form other than a payment of one month’s rent. For example, a reduction equal to one month’s rent in outstanding rent arrears or a waiver of the payment of rent for one month could be compensation equal to one month’s rent. So long as a landlord compensates a tenant in an amount equal to one month’s rent, the requirement of section 48.1 may be satisfied.
10. In this case, the Landlord alleged that there was damage to the rental unit for which the Tenants were responsible. The Landlord stated that the repairs would cost more than $1,000.00. He and the Tenants met, discussed the issues and, according to the Landlord and his father, RZ, the parties agreed to settle their respective claims by offsetting the Landlord’s claims against the amount payable to the Tenants and by payment of a net payment of $1,400.00 to the Tenants.
11. The Tenant, RD, did not deny that he agreed to accept the payment of $1,400.00 as alleged by the Landlord, although he claims to have been coerced into that agreement. He does not dispute that the $1,400.00 payment was made by the Landlord, but seeks payment of the $1,100.00 balance.
12. There is nothing in the evidence before me to suggest that the Tenants were coerced into the agreement. The Landlord and his father may well have persuaded or convinced the Tenants that the proposal was a fair and reasonable way of resolving the issues between them, but there is no evidence of threats or improper pressure upon the Tenants.
13. I am satisfied that the parties agreed that the Tenants’ entitlement to compensation was satisfied by a cash payment of $1,400.00 and by a waiver by the Landlord of any claims for damage by the Tenants to the rental unit. By entering into that agreement, the Tenants agreed that the value of the compensation they were receiving was equal to one month’s rent ($2,500.00).
5. The first allegation relates to the Member’s findings with regard to the Landlord’s payment of compensation to the Tenant pursuant to section 48.1 of the Residential Tenancies Act, 2006 (the’Act’).
8. The Member held a hearing on the preliminary issue of whether compensation had been paid within the period statutorily required by the Act, that is, before the termination date on the N12 Notice of Hearing, September 30, 2019.
9. The Member heard extensive testimonial evidence from both parties, and he also had documentary evidence to consider. The Tenant gave inconsistent evidence about when she had first been offered the one month’s rent compensation by the Landlord, pursuant to section 48.1 of the Act.
10. The Member reviewed the evidence during the hearing, concluding that the Tenant’s testimonial evidence had been inconsistent. He offered his finding with regard to this issue, on a balance of probabilities, during the hearing: that the Landlord had offered the Tenant one month’s rent compensation within the time required, in compliance with the Act.
11. The Member also reviewed the evidence within the body of the order itself, and he concluded that the Landlord had offered the Tenant the compensation pursuant to section 48.1 of the Act personally on September 19, 2019, and again by registered mail on September 21, 2019. The Member therefore concluded that compensation had been paid in compliance with the time limitations in section 55.1 of the Act.
8. Section 48.1 of the Residential Tenancies Act, 2006 (the ‘Act’) states a landlord is obligated to compensate the tenant one month’s rent when the landlord requires the rental unit for their own use. Here, the Tenant has failed to pay rent since November 2017; therefore, one month’s rent will be waived in full satisfaction of section 48.1.
13. The Tenant testified that she had not believed that the Landlord was returning to Canada at the time he served the N12. The Tenant did state that she currently doubt the good faith of the Landlord, but stated that she did not want to leave the unit as she has been looking for a home to purchase or an alternative rental unit and has not been able to do so to date. The Tenant testified that she has bid on a home in the purchasing process and was unsuccessful and needs additional time to find housing for herself and her children.
14. The reasonableness of the Landlord’s intention is not for the Board to determine, rather the consideration is the sincerity of the intention for possession. The case of McLean v. Mosher (1992), 1992 CanLII 7625 (ON SC), 9 O.R. (3d) 156 (Ont. Gen. Div.) stated:
- A landlord need not establish that his requirement is reasonable, only that he bona fide wanted and genuinely had the immediate intention to occupy.
15. I find therefore that the reasonableness of the Landlords’ intention to move into this rental unit, verses any other that they own, is not relevant to the issues of intention or good faith. Although alternatives may be available to the Landlords, it is not for the Board to determine what unit would be “most reasonable” for the Landlords to reside in; the Board’s determination is whether there is good faith and genuine intention to reside in the unit.