Personal Use Application (S.83 (2) Defense)

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Date Retrieved:	2024-04-28
CLNP Page ID:	2271
Page Categories:	[Personal Use Application (LTB)], [Section 83 (RTA)]
Citation:	Personal Use Application (S.83 (2) Defense), CLNP 2271, <https://rvt.link/87>, retrieved on 2024-04-28
Editor:	Sharvey
Last Updated:	2023/09/03

Nejati v Tay, 2021 CanLII 144660 (ON LTB)

Determinations:
6. The Landlords served the Tenant with a Notice to Terminate a Tenancy at the End of the Term for Landlords’ Own Use (the ‘N12 notice’) on February 29, 2020. The termination date was April 30, 2020.

7. On April 17, 2020 the Landlord gave the Tenant compensation equivalent to 1 month’s rent in the form of a cheque, which the Tenant never cashed.

8. While the Tenant did not cash the cheque, I find the Landlord has met the requirement in section 48.1 of the Act to pay the Tenant compensation equal to one month’s rent.

9. The N12 notice was served pursuant to section 48 of the Act which states:

(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

(2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term.

10. The termination date specified in the N12 is April 30, 2020 which complies with the 60 day requirement contained subsection 48(2).

11. There is no dispute between the Landlord and Tenant that the N12 notice was properly served.

12. The only other issue to be determined on this application is whether the Landlord has satisfied the “good faith” requirement in s.48(1) of the Act.

...

Analysis

33. In the more recent case of Fava v. Harrison, [2014] O.J No. 2678 ONSC 3352 (Ont.Div.Ct.) the Court determined that while the motives of the Landlord are, per Salter, “largely irrelevant”, the Board can consider the conduct and motives of the Landlord to draw inferences as to whether the Landlord desires, in good faith to occupy the property.”

34. I am not satisfied, on the balance of probabilities, that the Landlords genuinely intend to occupy the rental unit for a period of at least one year.

35. I acknowledge the Landlord’s testimony regarding their reasoning for purchasing the residential complex and their desire to move closer to family members and that they have sold their house and are currently renting a friend’s basement on a month to month tenancy.

36. However, there are a number of circumstances present here which call into question the Landlords’ actual intention.

37. Such a move would represent a significant downsize from a 2500 sq/ft home with 4 bedrooms and a garage to an approximate 700-800 sq/ft. SN in her testimony was not forthcoming with respect to the couple’s finances and seemed to be attempting to lead the Board to believe they were having financial difficulties as their only income was the small government pension her husband was receiving; neglecting to disclose she was still working and earning approximately $4000.00 per month. They did not disclose any other financial information regarding investments, etc.

38. The unit is located on the third floor where the 63 and 73 year old Landlords will have to climb 2 flights of stairs to access the unit.

39. When the Landlords purchased the building, they could have moved into either one of the other two units which were unoccupied at the time, larger and located on lower floors. It seems highly unlikely to me that if the Landlords genuinely wanted to live near their family they would instead decide to move into the smallest and only occupied unit in the building. I also note that neither Landlord has been into the unit more than once or twice and were not even sure of the exact size.

40. While SN claimed moving into the rental unit will allow her to look after her youngest grandchild daily while her son and daughter in law are at work, she also acknowledged that she is not retiring for a year from May 2021.

41. I also note that the monthly rent for this rental unit is approximately half of the current market rent.

42. After considering all of the above, I am not satisfied the Landlords have met the good faith test. Consequently, their application shall be dismissed.

43. Even if I had found the Landlords do in good faith require possession of the rental unit for a minimum period of one year, I still would have been refused to terminate the tenancy pursuant to section 83(1)(a) of the Act.

44. Subsection 83(2) requires me to consider all of the circumstances to determine if it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. In Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), [2009] O.J. No. 2659), the Divisional Court explained:

[11] The language of the section requires the Board to have regard to all the circumstances and there is no basis to preclude a consideration of unfairness to the tenant. Section 83(1) requires that the Board consider all the circumstances even if the Board member finds that the application is made in good faith.

[12] The legislature has given the Board broad discretion to refuse to grant an application for an order evicting a tenant, notwithstanding a finding that the application was made in good faith and that the landlord genuinely intends to occupy the residential unit.

[13] As stated in Salter v. Beljinac, supra, at para. 30:

“The Board member is entitled to weigh the overall circumstances relevant to the situation of both the landlord and the tenant to provide what the Tribunal perceives to be a fair result.”

45. Relevant circumstances here include the fact the Tenant has lived in the unit for 25 years, his dependence on neighbourhood resources and the overall impact an eviction would have. Specifically, he would likely be forced to move out of the City and away from his daughter. I also find that he has very limited financial resources, as it is clear based on the testimony he would never consider accessing the $33,000.00 in the RESP that was established as part of his divorce settlement as he understands that the money is for his children and will remain available to them if they require it. In contrast, the Landlords have the financial resources to locate alternate accommodation near their family.

46. Denying the eviction would preserve the Tenant’s fragile standard of living. While the Landlords may well be inconvenienced if they are not able to move into this particular unit, the impact upon them will be far less than the impact of eviction on the Tenant.

47. This order contains all reasons; no further will issue.