Material misrepresentation (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-20
CLNP Page ID:	1136
Page Categories:	Landlord & Tenant (Residential)
Citation:	Material misrepresentation (LTB), CLNP 1136, <6T>, retrieved on 2024-04-20
Editor:	MKent
Last Updated:	2022/02/25

TST-22405-11 (Re), 2012 CanLII 30206 (ON LTB)

2. The Tenant moved into the rental unit on October 1, 2011. Prior to moving in, the Tenant told the Landlord that the bar fridge in the unit was too small. The Landlord sold the bar fridge without replacing it and asked the Tenant to pay half of the cost of a new and bigger fridge. The Tenant rightly refused to share the cost of the fridge because she would be enriching the Landlord by paying for a fridge that would remain in the unit after she moved out. Due to haggling on the Landlord’s part,the new fridge was not delivered until October 13, 2011 and was operational the next day. The stove in the unit was also not working and had become a refuge for cockroaches. The oven was not replaced until October 11, 2011.

3. Although the Landlord had assured the Tenant before she signed the lease that there were no cockroaches in the unit, the Tenant discovered that the unit was infested with cockroaches. The problem was readily discoverable by opening the drawers and cabinets. The Tenant unsuccessfully attempted to solve the problem by applying boric acid. On October 4, 2011 the Tenant asked to Landlord to engage an exterminator to deal with the problem. The Landlord did not respond promptly, so the Tenant found an exterminator willing to treat the unit right away. The Landlord refused to pay for the exterminator found by the Tenant, claiming his own exterminator was less expensive. Thus, the unit was treated a week later.

6. The Tenant is entitled to an abatement of rent in the amount of $300.00 as a result of the Landlord’s failure to fulfil his obligations under the Act. This represents 50 percent of the rent for the first two weeks of the tenancy. The Tenant is also entitled for $260.00 for the extra cost of eating out for 13 days because of she did not have a fridge or functioning stove. This is calculated on the basis of $20.00 a day over and above the usual cost of eating in to account for having to eat out.

7. The Tenant is also entitled to termination of the tenancy, effective November 30, 2011. The Landlord made a material misrepresentation with respect to whether there were cockroaches in the unit and thus induced the Tenant to enter into the tenancy agreement. The Landlord subsequently tried to avoid his responsibilities under the agreement whenever it involved spending money. Given her bad experience over the first six weeks of the tenancy, it was reasonable for the Tenant to end the tenancy. She could not count on the Landlord to fulfil his part of the bargain.

It is ordered that:

1. The Landlord shall pay to the Tenant the sum of $1,200.00. This amount represents the last month's rent deposit.

2. The Landlord shall pay to the Tenant a rent abatement of $300.00.

3. The tenancy between the Landlord and the Tenant was terminated as of November 30, 2011.

TET-04085-19 (Re), 2020 CanLII 61127 (ON LTB)

2. On April 28, 2019 the Landlords sent the Tenants a series of texts saying in part:

Currently we’re planning on construction beginning in August for our new home, we would need the property vacated by August 1…

We can drop off the official notice this week…

Our builder asked us for possession sooner so they can start in July 1 but we figured it would be better to give you more time… I’ll e-mail you the notice to end tenancy with a August 1 date so you could sign and return to use so we can be on track for the August 1 date.

[Emphasis and errors in original.]

3. The next day the Tenants received an agreement to terminate in the Board’s Form N11 that was signed by one of the Landlords. They did not receive the proper notice to terminate tenancy for demolition in the Board’s Form N13. The N11 was sent via e-mail which says in part:

Kindly sign and return so we can execute and we can provide dates to our builders.

8. After the Tenants moved out of the rental unit the neighbours informed them that it looked like the rental unit was rented out to new tenants. The Tenants then found an on-line advertisement offering the rental unit for rent at $2,100.00.

13. I am satisfied that the first-named Tenant above signed the N11 agreement to terminate because he believed the Landlords were telling the truth and the rental unit was going to be demolished. The fact that he wanted to maintain good relations in order to ensure he had a positive reference in his search for a new home is ancillary to the reason the N11 was signed. This means I am satisfied the agreement to terminate is a legal nullity because it was signed based on material misrepresentations made by the Landlords. That means there really was no agreement to terminate. The Tenants moved out because of the April 28, 2019 notice to terminate which was for the purpose of demolition.

14. The next question is whether or not the notice to terminate was given in bad faith.

15. Absent evidence from the Landlords, the only reasonable conclusion that can be reached is that the notice was given in bad faith. The rental unit was on the market to be re-rented almost immediately after vacant possession was returned to the Landlords. The Landlords said nothing to the Tenants to the effect that their plans had changed so the Tenants did not have to move after all.

16. As a result, I am satisfied on the balance of probabilities that on April 28, 2019 the Landlords gave a notice of termination under section 50 in bad faith, the Tenants vacated the rental unit as a result of that notice, and the Landlords did not demolish the rental unit within a reasonable time after the Tenants vacated the rental unit.

It is ordered that:

1. The Landlords shall pay to the Tenants $1,349.59, for the reasonable out-of-pocket moving costs that the Tenants have incurred.

2. The Landlords shall also pay to the Tenants $7,800.00. This amount represents part of the increased rent that the Tenants will incur from June 1, 2019 to May 31, 2020.