Reasons N12's Have Failed

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	2391
Page Categories:	[Personal Use Application (LTB)]
Citation:	Reasons N12's Have Failed, CLNP 2391, <https://rvt.link/cd>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2024/07/16

Need Legal Help?
Call (888) 655-1076

Join our ranks and become a Ninja Initiate today

Nanko B.V. Holdings Inc. v Babasola, 2021 CanLII 139854 (ON LTB)

4. The first reason why this application must be dismissed is because the affidavit filed by the Landlord does not provide all of the information required by paragraph 72(1)(b) of the Act. In particular, to meet the requirements, the affidavit must certify that the purchaser requires “the rental unit” for his or her own personal use. The affidavit proffered by the Landlord does not provide this information.

5. The affidavit sworn by Mr. Veer Tharwani (the ‘Purchaser’) on April 29, 2021 does not refer to the residential complex or the rental unit. Although it refers to an agreement of purchase and sale (‘APS’), it does not reference the date of the APS or provide any other information upon which to link it to the APS filed by the Landlord. Additionally, as the Tenant pointed out, the APS itself references a different address than the Tenant’s: it refers to “2921 Bur Oak Avenue”, not “2931 Bur Oak Avenue”. Although the Landlord testified that the legal description found on the APS is correct, the Landlord provided no evidence to corroborate this assertion. The Purchaser did not attend to provide testimony on whether his affidavit was meant to refer to the rental unit in question. In these circumstances, I cannot find that the Purchaser’s affidavit satisfies or is substantially complaint with the requirements of paragraph 72(1)(b) of the Act.

6. The rental unit is also in the basement of the residential complex. As noted above, one of the requirements of subsection 49(1) of the Act is that the purchaser must in good faith require possession “of the residential complex or the unit for the purpose of residential occupation”. And, as noted above, the affidavit itself must certify that the purchaser “requires the rental unit for his or her own personal use”. Even if I am wrong to find that the affidavit is deficient for not specifying the rental unit or the residential complex, the affidavit in this case only states that the Purchaser “will be moving into the main level upon purchase for at least 12 months”. This affidavit gives no indication as to what use if any the Purchaser will make of the basement unit. When I gave the Landlord an opportunity to provide evidence on this issue, the Landlord testified that the Purchaser wanted to stay on the main level and that he was not sure about the Purchaser’s intentions for the basement. Once this issue became apparent, the Landlord then testified that the Purchaser previously told him that he would use other aspects of the residential complex for business purposes. I preferred the Landlord’s testimony before the issue became apparent and, in any event, subsection 49(1) of the Act requires “residential occupation” not occupation for business purposes. There was no basis upon which I could conclude that the substantive or affidavit requirements of the legal test were satisfied and the Landlord’s application must therefore be dismissed.

7. Furthermore, the agreement of purchase and sale (‘APS’) between the Landlord and the Purchaser is dated April 19, 2021. The Purchaser’s affidavit asserts that he will be moving into the main level upon purchase for at least 12-months and that the purchase will only be firmed once the conditions found in Schedule ‘A’ of the APS are satisfied. Two conditions are especially relevant. First, the Landlord warranted that he would complete renovations to the flooring, washrooms, kitchen and baseboards of all of the units in the residential complex “within 45 business days of this offer”. Second, vacant possession of the residential complex is required by the day of closing. The APS states that the agreement shall be completed “by no later than 6:00 p.m. on the 30 day of July 2021”.

8. As the Tenant pointed out, this hearing was held more than 45 business days after April 29, 2021 and after the closing date specified on the APS. The Landlord confirmed in his oral testimony that the property must be vacant before he can perform the upgrades required by the buyer and that he has not yet satisfied the requirements of Schedule ‘A’ to the APS. Therefore, according to the wording of the APS, the APS was void by the date of the hearing.

9. The Landlord addressed this issue in his oral testimony. He explained that the Purchaser is flexible and willing to extend the closing date to the end of August 2021 to give the Landlord time to comply with the above-discussed conditions. However, the APS itself states:

20. Time Limits: Time shall in all respect be of the essence hereof provided that the time for doing or completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by the Seller and Buyer or by their respective lawyers who may be specifically authorized in that regard.

26. Agreement In Writing: … This agreement including any Schedule attached hereto, shall constitute the entire Agreement between Buyer and Seller. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein. For the purposes of this Agreement, Seller means vendor and Buyer means purchaser. This Agreement shall be read with all changes of gender or number required by the context.

[Emphasis added.]

In essence, the APS states that time limits cannot be extended except in writing.

10. The Landlord did not provide any documentary or written evidence to corroborate his testimony to the effect that there has been an agreement to amend or waive the above- discussed conditions. In circumstances where any such amendment or waiver was to be in writing, the Landlord’s failure to provide such evidence made it important for me to hear from the Purchaser directly. As the Purchaser did not attend, I was not satisfied on the balance of probabilities that there remained a live APS. In other words, I was not reasonably certain that a completed sale will result from the APS. The Landlord did not therefore prove all of the elements of the legal test on the balance of probabilities and the Landlord’s application will be dismissed.

Taillon v Ackerman, 2021 CanLII 143577 (ON LTB)

12. The Landlord’s son did not attend the hearing to provide direct testimony. The Landlord did not provide any reasons to the Board as to why her son did not testify at the hearing.

13. While the Statutory Powers Procedure Act, 1990 permits administrative tribunals to allow hearsay evidence, in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 [Manikam], the Divisional Court stated that administrative tribunals must first assess whether the hearsay evidence is necessary and reliable. In addition, in Manikam, the Court found that the Board’s acceptance of hearsay evidence constituted a breach of procedural fairness because of the inability of the Tenant to cross-examine the person who uttered the statement in dispute and that the hearsay evidence was not both necessary and reliable.

14. In this case, the person who signed the declaration, James Taillon, did not attend the hearing at all. As such, the Tenant was unable to cross-examine James Taillon on the contents of the declaration. Procedural fairness dictates that the person who signed the declaration be made available for cross-examination by the opposing party.

15. In addition, the Landlord’s evidence regarding her son’s intentions to occupy the rental unit is entirely hearsay. The Landlord’s son ought to have provided testimony at the hearing and be subject to cross-examination, both on the contents of his declaration and on his intentions regarding this rental unit. I find that the hearsay evidence was not necessary, and as such, I give it no weight. Since the Landlord’s evidence does not have any weight in this proceeding, there is no evidence before the Board to support the application to terminate the tenancy.

16. In light of these factors, the Landlord’s application shall be dismissed for a lack of evidence.

Dorus v Ghannam, 2021 CanLII 145505 (ON LTB)

1. On February 2, 2021 the Landlords gave the Tenant an N12 notice of termination for landlord’s own use. The termination date on the N12 notice is May 31, 2021. The notice indicated that the child of the Landlords required the use of the rental unit.

2. The Landlord has not met the requirements under section 72(1)(a) of the Residential Tenancies Act, 2006 (the ‘Act’), which requires the filing with the Board an affidavit sworn by the person who needs the unit. The declaration must certify that the person in good faith requires the rental unit for her own personal use for a period of at least one year.

3. The Landlords submitted a declaration signed by the Landlord, Julius Dorus, dated June 10, 2021 indicating that their daughter intends to move into the rental unit in good faith for at least one year. The affidavit does not meet the requirements under section 72(1)(a) of the Act because the person that signed and completed the declaration is not the person that personally requires the unit. Moreover, the declaration was provided to the Board during the hearing of the matter.

4. The Landlords’ representative elected not to call any further witnesses for the hearing when asked whether they wished to do so.

...

9. However, since I am refusing to grant the Landlord’s application for not providing the required declaration, I will hereby order that the Tenant either return the cheque or, if they have cashed it, pay the amount back to the Landlords pursuant to subsection 73.1 of the Act.

Koledin v Hewlett, 2021 CanLII 144650 (ON LTB)

2. The residential unit is a basement apartment in a house owned and lived in by the Landlord.

3. The Landlord testified that, prior to the Tenant moving in, she would use the basement for cooking, sleeping and having family stay in the unit when they visited. The Landlord further testified that she wants to reclaim the basement unit for the same purposes.

4. The Landlord testified that she suffers with arthritis and has difficulty navigating stairs and requires a handicapped parking space.

5. The Landlord provided a sworn Affidavit which stated, in part:

“Ms. Hewlett's behaviour has grown progressively more confrontational and aggressive, which has greatly affected my emotional wellbeing. She has engaged in a pattern of disruptive behaviour, which includes banging on walls and slamming doors in the early morning hours. As a result of Ms. Hewlett's behaviour, I now suffer from severe anxiety, insomnia, and stress, documented by letter of Dr. Alex Peters.”

6. The issue in this application is: was the N12 served in good faith? The Divisional Court has also made clear that I may draw inferences about whether or not the N12 was served in good faith based upon the conduct and motives of the Landlord (Fava v. Harrison (2014 ONSC 3352 ONSC DC) (“Fava”).

7. The Landlord claims that she requires the use of the basement unit for residential purposes however she testified that she is unable to navigate stairs and that there is a history of the Landlord’s efforts to evict the Tenant because she finds her troublesome.

8. Based upon the testimony of the Landlord, I am not persuaded that the Landlord served the N12 in good faith. After weighing the evidence of the Landlord and drawing inferences from it – as I am permitted to do under Fava, the Landlord’s evidence and testimony suggests that the N12 was served to rid the Landlord of this Tenant and not necessarily for the purpose of the Landlord’s own use.

9. Having determined that the Landlord does not in good faith require possession of the rental unit for her own residential use, I am not required to address matters relating to service of materials between the parties.

10. If the Tenant received compensation from the Landlord under section 48.1 of the Act, the Tenant shall re-pay the amount of compensation immediately, pursuant to section 73.1 of the Act.

Buchan v Georges, 2021 CanLII 77350 (ON LTB)

7. To meet the requirement of the Act the person taking possession of the unit must have a firm intention to move into the unit for a period of at least one year. There is an obligation on the Landlord to satisfy the Board that the occupation complies with the requirements of the Act.

8. At the hearing the Landlord testified that he did not intend to reside in the rental unit once it was vacated. He testified that he wanted the unit back, as it is his, in order to clean the unit, do some improvements and sell it. He testified it was his intention to sell the unit and in fact he has entered into an Agreement of Purchase and Sale for the rental unit since serving the Notice of Termination. He testified that the Sale has not yet closed but he requires the unit back for vacant possession by the purchasers.

9. Subsection 48 grounds for termination of a tenancy do not apply where a Landlord does not intend, or never intended, to personally occupy the renal unit. The Landlord testified that when serving the N12 notice, his intention was to list the property for sale. This is not a valid ground to terminate a tenancy under the Act.

10. Based on the evidence before the Board, I do not find on a balance of probabilities that the Landlord served the N12 notice in good faith or that he intends to reside in the unit for a period of at least one year.

11. The Landlord’s application must be dismissed.

Nevin and nadeem Bhimani v Kathleen Macdonald, 2023 ONLTB 39863 (CanLII)

19. Steele J. in the Divisional Court has stated "... the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord's proposal." See Feeney v. Noble (1994), 1994 CanLII 10538 (ON SC), 19 O.R. (3d) 762 (Div. Ct.) at 764.

20. While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal properly stops short of entering into an analysis of the landlord's various options:.............Once a landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s. 51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s. 51(1) standard.

21. In Fava v. Harrison, 2014 ONSC 3352 (CanLII) the Court commented: We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith to occupy the property.

22. When I examine the evidence presented, I am not satisfied on a balance of probabilities of the Landlord’s genuine intention of the rental unit. Both the Landlord and her son did not provide an amount of rent the son would be charged. I find it more likely than not, if the Landlord’s genuine intention was to provide her son the rental unit, they would had already have established the amount of rent which would be charged once the Landlord regained possession of the rental unit. They were both uncertain what the amount would be. It seems there was a lack of planning between the Landlord and her son. I expected more evidence within the family, the Landlord and son were wishy washy about their plans.

23. Further, Mr. Bhimani testified he still attends the University and is part of the epee program. He did apply for employment but has not heard back. There was no evidence presented this was for costs savings or proximity to potential employment. There was no evidence from Mr. Bhimani to suggest those reasons, it appears the evidence presented by Mr. Bhimani was “I am the son I wish to live there”. I am not satisfied based on the lack of evidence there was a genuine intention to occupy the rental unit for residential purposes for a period of one year.

24. As a result, the Landlord’s application shall be dismissed.

Schaafsma v Botham, 2021 CanLII 140217 (ON LTB)

4. In support of this application, the Landlord filed a declaration signed by Ms Schaafsma. That declaration does not, however, comply with the requirements of section 72(1) of the Act, which provides, in part:

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, 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…. (emphasis added)

5. The declaration signed by Ms Schaafsma indicates only that the Landlords now live in Canada permanently and require the rental unit. It does not indicate for what period the Landlords intend to occupy the rental unit and does not attest to the Landlord’s good faith. However, Ms Schaafsma provided oral evidence that she and her family plan on living in the rental unit ‘indefinitely’.

6. Ms Schaafsma’s evidence is that the Landlords: (a) sold their house in Chatham, Ontario on September 1, 20211; and (b) as a result require possession of the rental unit for purposes of residential occupation. She further asserts that Mr. Schaafsma works in Windsor, Ontario and that moving into the rental unit ‘makes sense’.

...

23. As set out above, there is evidence that there were other reasons that the Landlords wished to evict the Tenant and take possession of the rental property. We find, based on that evidence, that the Landlords have not established that, in April of 2021, they had a genuine intent to reclaim the rental unit for purposes of residential occupation as required by section 48. We find that it is more likely than not that when the Landlords served the N12, they recognized that the Tenant was paying rent that was below market, were ‘exploring their options’ and wished to evict the Tenant in order to either re-rent or sell the rental unit. We acknowledge that by the time this application was heard the Landlords had sold their residential property in Chatham, but that is not relevant for the purposes of determining the Landlord’s intention as at the time the N12 application was served and we note that the Landlords purchased another residential property in Blenheim prior to selling their property in Chatham.

24. Paragraph 83(3)(c) of the Act mandates that we refuse to make an order under section 69 of the Act if we are satisfied that ‘the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights’.

25. In Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII), the Divisional Court found that the Board properly dismissed an application brought pursuant to section 48 of the Act based on para 83(3)(c) where there was evidence that if the tenant had agreed to an illegal rent increase she would have been allowed to continue to occupy the rental unit. There was evidence before us that in July of 2021—subsequent to the N12 being served—the Landlords offered to permit the Tenant to remain in occupation if she was prepared to agree to a illegal rent increase. Given, however, our finding with respect to the Landlords’ good faith intention it is not necessary for us to determine whether the Landlords’ actions subsequent o the N12 being served trigger para 83(3)(c) and we decline to do so.

Verma v Morais, 2021 CanLII 78834 (ON LTB)

8. The Landlord filed an affidavit sworn by her son, RV. RV testified that he lives upstairs with his parents and siblings. The upstairs unit contains 4 bedrooms and 2.5 bathrooms. The master bedroom is occupied by his parents; one bedroom is used as a home office; one bedroom is occupied by his sister; and RV shares the remaining bedroom with his brother. RV wants to move into the basement because he needs privacy and wants to focus on his studies.

9. In absence of any other evidence, the evidence would seem to establish the Landlord’s good faith intention for RV to move into the rental unit. However, I may also draw inferences about the Landlord’s good faith from the Landlord’s conduct and motives. I draw a negative inference based on certain events discussed below.

10. It was undisputed that, in February 2018, the parties had a dispute regarding the use of the storage room that is located inside the rental unit. At that time, the Landlord wanted to store some items in the storage unit and the Tenant refused to allow the Landlord to store her items. Shortly after, there was another dispute regarding parking at the rental complex. Following these incidents, the Tenant received a notice to terminate her tenancy for the landlord’s own use.

11. It was also undisputed that, in June 2019, the Landlord sent the Tenant a text message telling the Tenant that she needed to move because the Landlord’s sister-in-law was coming to Canada and would be moving into the rental unit. After the Tenant refused to vacate, the Landlord gave her another N12 notice stating that her husband and son were going to move into the rental unit.

12. This is the third attempt by the Landlord to evict the Tenant for the Landlord’s own use. The parties had been before the Board on 2 prior occasions. While I accept that the Landlord’s applications were dismissed in both prior occasions due to procedural issues, the evidence before me was that the persons intended to move into the rental unit were different in each case. In the first instance, the Landlord testified she intended to move in. On the second occasion, the Landlord’s husband and son were the intended persons moving in. Prior to this, it was the Landlord’s sister-in-law that was to move into the rental unit.

13. Given the above, I am not satisfied on a balance of probabilities that the Landlord genuinely intends for RV to move into the rental unit. It appears more likely than not that the Landlord’s overriding intention is to terminate the tenancy and evict the Tenant.

14. Therefore, the Landlord’s application shall be dismissed.

Al- Qadri v Ravells, 2022 ONLTB 9865 (CanLII)

20. HAQ was consistent in his testimony that he has planned to move into the unit since February, 2021, and that the Tenant was asked to sign an N11 form because HAQ wanted to move into the unit at the time the request was made. However, the Landlords did not submit any evidence that the Tenant had been informed that HAQ required the unit for his own use until the service of the December N12 Notice on December 28, 2021.

21. HAQ’s testimony that the purpose of the N11 was to evict the Tenant is inconsistent with the documentary evidence. The N11 form was sent to the Tenant shortly after the new lease agreement, and was attached to an email from the Landlords’ real estate agent, which stated “Please don’t take it serious, this is just an option, in case, if you decide not to live here.”

22. The Landlord's Legal Representative argued that the Landlords’ real estate agent was acting on behalf of GQ, and not HAQ, however, GQ and HAQ own the property jointly, and neither GQ nor the Landlords’ real estate agent were present to testify at the hearing. Additionally, HAQ referred to the Landlords real estate agent as “my agent” and “my representative” throughout his testimony, and the N11 was signed by both Landlords. Therefore, I find that the Landlords real estate agent was acting on behalf of both Landlords with respect to the tenancy.

23. Landlords and tenants are entitled to agree to terminate a tenancy, and a landlord’s request to a tenant to sign an N11 form is not, in itself, evidence that calls into question a landlord’s good faith intention to occupy a rental unit. However, because of the inconsistencies between HAQ’s testimony and the actions taken on his behalf by GQ and the Landlords’ real estate agent, and the Tenant’s uncontested evidence that she refused to sign a new lease at a significantly higher rent that she received the same day as the N11 form, I find it likely that the Landlords had other reasons for seeking the termination of the tenancy.

24. This is a landlord’s application and the burden rests with the Landlords to establish, on a balance of probabilities, that the Landlords have a genuine good faith intention that HAQ will occupy the rental unit. Based on evidence of the Landlords, weighed against the Tenant’s internally consistent oral and documentary evidence, I am not satisfied that the Landlords have met this burden.

25. Therefore, the application must be dismissed.

Puusa v O'Connor, 2022 CanLII 52436 (ON LTB)

1. The Landlords in good faith require possession of the rental unit for the purpose of residential occupation by a family member.

2. On October 31, 2020 the Landlords served an N12 Notice to End Your Tenancy with a termination date of December 31, 2020. The notice meets all of the requirements of the Residential Tenancies Act, 2006 (the 'Act') in terms of form and content.

3. The Landlords also submitted a declaration, but not a sworn affidavit, signed by the Landlords’ daughter H.P., stating that she will be occupying the Tenant’s unit for a minimum of one year. Upon review of the declaration, I note that H.P. has not declared that she intends in good faith to take possession of the unit.

4. The Landlord E.P. affirmed that the Landlords did not pay the Tenant compensation equal to one month's rent on or before the termination date. Therefore, the Landlords have not met the technical requirements of section 48.1 of the Act, to make payment of the required compensation before the termination date in accordance with section 55.1 of the Act.

5. As a result, the Landlords’ application shall be dismissed

Walker v Slezak Suazo, 2022 CanLII 137774 (ON LTB)

11. Section 83(3)(c) of the Act requires the Board to refuse eviction if the reason the application is being brought is because a tenant has attempted to secure of or enforce his or her legal rights. I find that the reason the Landlord brought this application is because the Tenants refused to pay an illegal increase in rent.

12. The Landlord’s testimony did not help his application. The Landlord stated several times that he never wanted to be a landlord. The Landlord also stated several times the tenancy was only supposed to be temporary to help Ms. Laezo. It is clear the Landlord does not want to be a Landlord and is trying whatever way he can to end the tenancy. A Landlord is entitled to retake possession of a rental unit for the purposes of residential occupation, however they cannot, as I have found here, do so because the tenant has refused an unlawful rent increase.

13. The Landlord did not provide a satisfactory reason as to why he requires possession of the rental unit. First, the Landlord said his sister was going to move into the unit. Then he changed his testimony to say he wanted to live in the rental unit, even though he says the place he lives now is his dream home. Although Board jurisprudence is clear that a landlord’s motives are largely irrelevant in these applications, it can be relevant to assessing whether the Landlord’s stated intention of residing in the unit for more than one year is legitimate. The Landlord’s changing reasons for requiring the unit are suspicious and raise questions about whether he in good faith requires the unit. Ultimately, I am not satisfied on, beyond a balance of probabilities that the Landlord in good faith requires the rental unit for the purposes of residential occupation.

Khvalov v Ryder, 2022 CanLII 79000 (ON LTB)

14. Based on the evidence before the Board, I am not satisfied on a balance of probabilities that the Landlords in good faith intend to reside in the rental unit.

15. The evidence before the Board is clear that the Landlord emailed the Tenant on August 9, 2021 requesting that the Tenant sign a new lease and agree to increase the monthly rent by $1,000.00. The Tenant refused the increase and the Landlord then served the Tenant with an N12 notice only 5 days later on August 14, 2021. On a balance of probabilities, I would agree with the Tenant that the timing of these events establishes that the Landlords likely served the N12 notice because the Tenant’s did not agree to pay the illegal rent increase of $1,000.00.

16. I also have concerns about the credibility of the Landlord’s testimony. The Landlord stated that he and his wife are experiencing financial difficulties, but later admitted on cross examination that he intends to spend approximately $100,000.00 in renovations on the rental unit, which requires extensive repairs.

17. I would agree with the Tenant’s assertion that the evidence establishes that Landlords’ likely intention is to take possession of the rental unit for the sole purpose of re-renting the rental unit at a higher rent, not for their own residential occupation. As such the Landlords’ application shall be dismissed.

Nejati v Tay, 2021 CanLII 144660 (ON LTB)

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.

...

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.

Mulyar v Andriy, 2023 CanLII 133816 (ON LTB)

13. On a balance of probabilities and based on the evidence before me, I do not find that the Landlord has a genuine intent to occupy the rental unit and I do not find that the N12 notice of termination was served in good faith.

14. Although I do not doubt that the Landlord suffers from a visual impairment or that their blood pressure became unstable which required medical intervention, I find that the Landlord lacked credibility in other areas of her testimony. For example, the Landlord testified that they were unable to work as a result of their visual impairment and because of ongoing and progressively worsening pain, yet she pursued studies in real estate and obtained her real estate license which was not readily disclosed under direct examination. The Landlord indicated that she was considering giving up her employment because of her vision issues, yet the Landlord also indicated that she is financially struggling. The Landlord neglected to file any supporting documentation with regards to her financial status and otherwise had not made any plans of what to do with her current place of residence which she owns in London. I also draw a negative inference from the Landlords communications with the Tenant less than 2 weeks prior to service of the N12 notice. I find it more likely that the Landlord served the Tenant with the notice as a result of difficulty communicating with the Tenant regarding issues relating to the Tenancy. For these reasons, the Landlord cannot succeed on her application.

Zhou v Mai, 2021 CanLII 147470 (ON LTB)

6. The basement and main floor tenants challenged the Landlords’ genuine intent, stating the Landlords had hired a real estate agent and produced text messages showing a clear intent to sell the rental unit in the months and weeks leading up to the service of the Form N12.

On April 26, 2021, the Landlords advised “Sorry, we are going to sell the house, you all ought to look for a place to move”

On June 14, 2021, the Landlords followed up “Have you looked for a place yet? We will put the house in the market for sell, and will need to get in to take pictures,”

On June 16,2021, the Landlords stated “We will come in on this Friday at 5pm to take pictures, thanks”

On June 30, 2021, the Landlords stated “…how is going with house finding? We did not get in to take pictures last time, my real estate agent plans to get in take pictures on July 02 between 10:30am to 12:30pm?”

7. The text messages leading up to the service of N12 establish that the Landlords intended to sell the property. In the face of this evidence, the Landlords failed to establish that in the three-week period following their text of June 30,2021, their intention changed from selling the property to moving in with their children for the above-stated purpose.

8. Moreover, the Landlords’ declarations provide that “we have never sent any notice to repossess the rental unit to the tenant any time before this one.” The Tenant, however, produced an undated N12 notice of termination (the “Undated N12 Notice”) received in May 2021, which showed a notice of termination of July 30, 2021. The Undated N12 Notice did not stipulate a reason for the notice of termination. The Landlords did not dispute that they served the Undated Notice, though it appears it was never filed.

9. While its validity may have come into question if pursued, the Landlords failure to advise of the service of the Undated N12 Notice in my opinion suggests an intent to withhold information unfavourable to their case.

10. Lastly, given the lack of concrete plans for the Markham property, I have doubts regarding whether the Landlords ultimately intended to reside in the rental unit at the time of service of the N12 or at the time of hearing. On the totality of the evidence here, I am not satisfied, on a balance of probabilities, that the N12 was served in good faith. The Landlords’ application fails the good faith requirement under s.48(1) of the Act and must be dismissed.

Hawke v Moreau, 2022 CanLII 70781 (ON LTB)

4. I am satisfied on a balance of probabilities that the Landlords’ son intends to move into the rental unit for a period of at least one year. Section 83 of the Act, however, requires that the Board have regard to all the circumstances to determine if it would be appropriate to delay or deny eviction in the form of section 83 relief.

5. Having regard to all the circumstances as outlined below, I am exercising my discretion under s.83(1)(a) of the Act to refuse to grant eviction.

6. I find the testimonies of both the Landlord and the Tenant to be genuine. The Landlord’s son recently sold his principle residence, with the intention of moving into another property that he owns (the “Reno Home”). The Reno Home is an older property underdoing significant renovations, with an estimated completion date of 12-14 months before it is liveable. Given the size and location of the rental unit, the Landlord’s son seeks to move into the rental unit with his family during the renovations (approximately 12-14 months) and subsequently move to the Reno Home once those renovations are completed.

7. On the other hand, the Tenant has lived in the rental unit for approximately 24 years and her current rent is $955.57. She states she is concerned about where she will go if evicted and that she is “ill over this”. She further testified that after working all her life, she is now retired. Given the rental climate, she fears she will not be able to afford another place and will be left homeless if evicted. She testified she currently lives with her adult son so as to assist him with his own precarious financial situation.

8. I do not find that it would be unfair to refuse eviction given the circumstances, and the fact that the Tenant’s housing outlook appears to be more limited that the housing options of the Landlord’s son. In this regard, the Tenant testified that the Landlord’s son works in real estate and has other housing options, in addition to living with the Landlord. She submits there is a small, vacant apartment in the current residential complex. While I appreciate the Landlord’s submission that the 1-bedroom, apartment is not ideal for the Landlords son’s family of three, it does provide atleast another housing option while the Reno Home is undergoing renovations.

Faikovski v Warren, 2022 ONLTB 5667 (CanLII)

31. Upon an application for an order evicting a tenant, the Board may refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse the application.

32. As such, I am required to review the circumstances of each party before granting the Landlord’s application to evict the Tenant, despite my finding that the Landlord’s mother in good faith requires the unit.

33. The Tenant’s evidence was compelling. His income is $719.00 bi-weekly from Worker’s Compensation. He is unable to continue working and this is his only source of income. He testified that similar one-bedroom units in the area are charging rent amounts that exceed his total monthly income.

34. Further, the Tenant testified that if he was evicted that he would lose everything he owned and would become homeless. I am mindful of the current state of the housing and rental market in the Regional Municipality of Waterloo, as well as municipalities throughout Ontario and Canada. I find that the Tenant would more likely than not be homeless should eviction be ordered.

35. Further, the Tenancy is 27 years old. I find that this is an established tenancy that predated the ownership of the Landlord, and that Tenant has established himself within the residential complex and the neighbourhood.

36. The Landlord and his family meanwhile own 10 to 12 residential complexes and rents out approximately 28 units.

37. I find on a balance of probabilities that despite the Landlord’s evidence that he has chosen this unit for its location, that the unit has been selected by the Landlord for a financial benefit as well, despite the Landlord’s mother not paying rent.

38. That said, having considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), I find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1)(a) of the Act.

39. In comparing the circumstances, I find that the Landlord has options. While I did find that his mother will in good faith occupy the unit, the Landlord’s mother will not be left without somewhere to live by eviction being denied. Further, the Landlord seemingly has a plethora of other units to choose from at his disposal and while I find that the Landlord has selected this unit for financial reasons, the Tenant’s unit seemed a choice of convenience for the Landlord made without any thought about the circumstances of the Tenant.

40. Meanwhile, I find as a fact that the Tenant would be unable to afford a new unit in light of the current rental market issues in Kitchener. The Tenant will likely become homeless if evicted.

41. As such, while I find that the application was made in good faith but eviction is denied for the above-noted reasons.

Sauve v Chauvin, 2022 CanLII 97395 (ON LTB)

8. Section 202 of the Act states:

202 (1) In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit

9. In this instance, I find that while the Landlord was an individual at the time the Notice was served, pursuant to section 202 of the Act, the true Landlord is a corporation. The real substance of the transfer was to evade the Act’s prohibition on corporate Landlord’s serving N12s under section 48(5). It was undisputed that Never Rest Farms Ltd. was the Landlord at the start of the tenancy. It was the Landlord’s own evidence that he transferred title to his name to meet the requirements of section 48 of the Act. I recognize that the definition of “landlord” in section 2(1) of the Act includes an owner of a rental unit. However, John Sauve acquired his ownership in the rental unit from a corporation that he alone controls for the sole purpose of being able to evict the Tenants. This interpretation is consistent with the intent of section 48(5) of the Act, which is to deny corporate Landlord’s the right to evict Tenant’s for Landlord’s own use applications.

10. As I have found that Never Rest Farms Ltd., a corporation, is the true Landlord, the N12 Notice of Termination served on July 13, 2021 does not comply with section 48 of the Act.

It is ordered that:

1. The Landlord’s Application is dismissed.

Yang v Wills, 2022 CanLII 57903 (ON LTB)

1. The application is dismissed because the Landlord did not meet the requirements for this application under the Residential Tenancies Act, 2006 (the “Act”).

2. The Landlord served the Tenants an N12 Notice of Termination under section 48 of the Act because the Landlord’s parent wants to move into the rental unit.

3. Section 72 (1) of the Act states

“The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on, (a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, 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.”

4. The Declaration filed with the Board does not certify that the Landlord’s parent requires the rental unit for his or her own personal use “for at least one year”.

5. Therefore, I find that the Landlord has not satisfied a statutory requirement for this application and the application must therefore be dismissed.

Malfara v Boyd, 2022 CanLII 78811 (ON LTB)

13. In this instance, the real substance of the transfer of part ownership of the property to BM was for the sole purpose of evicting the Tenant. The true Landlord was and continues to be a corporation, MM2014, not BM. Since MM2014 is not an individual, it cannot give the Tenant a Notice of Termination for owner’s own use. This interpretation is consistent with the intent of subsection 48(5) which is to deny corporate landlords to evict tenants for Landlord’s own use.

14. As I have found that MM2014, a corporation, is the only genuine Landlord, the N12 Notice of Termination served on August 9, 2021 does not comply with section 48 of the Act.

Zoric v Vasic, 2021 CanLII 144892 (ON LTB)

1. At the hearing, the Landlord submitted that he is currently living abroad in Serbia and that at the end of the tenancy (December 31, 2021) he requires the unit for his personal use. The Landlord submitted that he intends to move in the rental property and reside for at least one year with his family.

2. The Landlord did not file the required affidavit certifying that he, in good faith, requires the unit for his own personal use.

3. The Tenant provided proof that the rental property has been listed for sale since May 26, 2021, which is inconsistent with the Landlord’s submissions that he intends to reside at the rental property as of December 31, 2021. The Landlord was unable to provide a valid explanation as to why the property was listed for sale for such a long period. The Landlord argued that the property is listed for sale since May 26, 2021, because there was a breakdown in communication with his real estate agent who forgot to take down the listing.

4. Under these circumstances, the Landlord does not have the right to terminate the tenancy. I am not persuaded that the Landlord intends to reside at the rental property and the application is incomplete without the required affidavit.