Failure to File the Declaration/Affidavit (N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2257
Page Categories:	[Personal Use Application (LTB)]
Citation:	Failure to File the Declaration/Affidavit (N12), CLNP 2257, <https://rvt.link/7q>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/08/16

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

71.1 (1) A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).

Non-compliance with subs. (1)

(2) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).

Previous use of notices under s. 48, 49 or 50

(3) A landlord who, on or after the day subsection 11 (2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application,

(a) indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different rental unit; and

(b) set out, with respect to each previous notice described in clause (a),

(i) the date the notice was given,

(ii) the address of the rental unit in respect of which the notice was given,

(iii) the identity of the intended occupant in respect of whom the notice was given if the notice was given under section 48 or 49, and

(iv) such other information as may be required by the Rules. 2020, c. 16, Sched. 4, s. 11 (2).

Non-compliance with subs. (3)

(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3). 2020, c. 16, Sched. 4, s. 11 (2).

Rita Garofalo; Gabriella Maia -and- Stephanie Juffs ONLTB LTB-L-059986-22

2. On October 12, 2022, the Landlords gave the Tenant an N12 notice of termination with the termination date of December 14, 2022. The Landlords claims that they require vacant possession of the rental unit for the purpose of residential occupation by their child. The Landlords also filed a declaration which they both signed that affirmed they would be moving into the unit. This declaration accompanied the application on October 17, 2022 when the application was filed. On April 5, 2023, the Landlords filed another declaration signed by their child.

3. Section 71.1 (1) of the Act, states, “A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).”

4. Section 71,1(2) of the Act states, “The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).”

5. The Board’s Rules allows a declaration to be submitted. In this case the termination notice was given under section 48 of the Act and the declaration that the Landlords rely on is from a child and it was filed almost 6 months after the application was filed. The Board cannot consider the merits of the application because the Landlord have not met the statutory requirement of section 71.1(2) which makes it mandatory for the Board to refuse to accept the application. I considered Order HOL-12135-21 and I am not bound by another Member’s decision. I will point out that the order did not include reasons to explain the conclusion reached having granted eviction when section 71.1 was not met.

6. The declaration by the Landlords that accompanied the application when it was filed doesn’t meet the statutory requirement of section 72(1)(b) of the Act because it was not an affidavit sworn [declaration] 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.