Talk:Declaration/Affidavit Requirements (N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-27
CLNP Page ID:	2230
Page Categories:	[Personal Use Application (LTB)]
Citation:	Declaration/Affidavit Requirements (N12), CLNP 2230, <>, retrieved on 2024-11-27
Editor:	MKent
Last Updated:	2023/10/16

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Blasi v John, 2021 CanLII 91971 (ON LTB)

2. The Tenants argue that the Board erred in granting the application under section 48 of the Residential Tenancies Act, 2006, SO 2006, c 17 (the 'RTA') even though the Landlord had not met the requirements of subsection 72(1)(a). That subsection provides that the Board may not order a tenancy terminated for personal use by a landlord’s family member, unless the landlord has filed an affidavit sworn by the family member certifying that they in good faith require the unit for their own residential use for a period of at least one year.

3. In this case, the Landlord filed an affidavit sworn by his daughter, but the affidavit did not state that she would reside in the unit for at least one year. The Board held as follows:

Although not specifically noted in the submitted affidavit, it was clear from the oral evidence at the hearing that the Landlord’s daughter and her boyfriend are intending to live in the rental unit for an extended period of time that is at least one year.

4. I am satisfied that the Board did not err in finding that the requirements of subsection 72(1)(a) had been met. Section 212 of the RTA provides that “substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.” In this case, rather than providing an affidavit stating that she would reside in the unit for at least one year, the Landlord’s daughter provided sworn oral testimony. Oral testimony is more reliable than affidavit evidence, since it is given before the Member and is subject to cross-examination. Hence, the Board did not err in finding that the daughter’s oral testimony was sufficient to satisfy the requirements of subsection 72(1)(a).

5. Section 183 requires that the Board adopt the most expeditious method of determining the questions arising in a proceeding. It would have been a pointless waste of time to require the Landlord’s daughter to produce a written affidavit at the hearing, when she could instead give the same evidence, in a more reliable form, on the witness stand.

Ognibene v Simms, 2021 CanLII 145463 (ON LTB)

8. It is also the case that clause 72(1)(a) of the Act deprives the Board of the jurisdiction to terminate the tenancy and evict the Tenant “unless the landlord has filed with the Board an affidavit sworn by the person who personally requires the rental unit certifying that the

person in good faith requires the rental unit for his or her own personal use for a period of at least one year”.

9. In this case, the Landlord’s declaration simply asserts that following:

I require the basement rental unit at 115 Whitbread Cres, Toronto, Ontario M3L 2G9 which is currently occupied by tenant, Mr. Pattel Simms, for my personal use and due to health condition.

The issue with this declaration is that it does not certify that the Landlord requires the rental unit for her own personal use “for a period of at least one year”.

10. At the hearing, the Landlord’s sworn testimony was that she intended to occupy the rental unit forever. This begs the question of whether sworn testimony at the hearing provides an adequate substitute for the affidavit/declaration requirements of the Act.

11. There is support in the Board’s jurisprudence for the proposition that sworn testimony consistent with the affidavit/declaration requirements of the Act is sufficient. See, for example, Blasi v John, 2021 CanLII 91971 (ON LTB), where the Board concluded:

4. Section 212 of the RTA provides that “substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.” In this case, rather than providing an affidavit stating that she would reside in the unit for at least one year, the Landlord’s daughter provided sworn oral testimony. Oral testimony is more reliable than affidavit evidence, since it is given before the Member and is subject to cross-examination. Hence, the Board did not err in finding that the daughter’s oral testimony was sufficient to satisfy the requirements of subsection 72(1)(a).

5. Section 183 requires that the Board adopt the most expeditious method of determining the questions arising in a proceeding. It would have been a pointless waste of time to require the Landlord’s daughter to produce a written affidavit at the hearing, when she could instead give the same evidence, in a more reliable form, on the witness stand.

12. I accept this reasoning in the present case and conclude that the affidavit/declaration requirements of the Act were satisfied by the Landlord’s oral testimony.