Bad Faith (T5 Application)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	1854
Page Categories:	Personal Use Application (LTB)
Citation:	Bad Faith (T5 Application), CLNP 1854, <64>, retrieved on 2024-11-26
Editor:	Rstojni
Last Updated:	2023/12/11

Need Legal Help?
Call (888) 655-1076

Join our ranks and become a Ninja Initiate today

Residential Tenancies Act, 2006, SO 2006, c 17

57 (1) The Board may make an order described in subsection (3) if, on application by a former tenant of a rental unit, the Board determines that,

(a) the landlord gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit;

(b) the landlord gave a notice of termination under section 49 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 49 (1) (a), (b), (c) or (d) or 49 (2) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit; or

(c) the landlord gave a notice of termination under section 50 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and the landlord did not demolish, convert or repair or renovate the rental unit within a reasonable time after the former tenant vacated the rental unit. 2006, c. 17, s. 57 (1).

(2) No application may be made under subsection (1) more than one year after the former tenant vacated the rental unit. 2006, c. 17, s. 57 (2).

(3) The orders referred to in subsection (1) are the following:

1. An order that the landlord pay a specified sum to the former tenant for all or any portion of any increased rent that the former tenant has incurred or will incur for a one-year period after vacating the rental unit.

1.1 An order that the landlord pay a specified sum to the former tenant as general compensation in an amount not exceeding the equivalent of 12 months of the last rent charged to the former tenant. An order under this paragraph may be made regardless of whether the former tenant has incurred any actual expenses or whether an order is made under paragraph 2.

1.2 An order that the landlord pay a specified sum to the former tenant for reasonable out-of-pocket moving, storage and other like expenses that the former tenant has incurred or will incur.

2. An order for an abatement of rent.

3. An order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court.

4. Any other order that the Board considers appropriate. 2006, c. 17, s. 57 (3); 2020, c. 16, Sched. 4, s. 9 (1).

(4) In an application under subsection (1), the Board may find that the landlord gave a notice of termination in bad faith despite a previous finding by the Board to the contrary. 2006, c. 17, s. 57 (4).

(5) For the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the landlord,

(a) advertises the rental unit for rent;

(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;

(c) advertises the rental unit, or the building that contains the rental unit, for sale;

(d) demolishes the rental unit or the building containing the rental unit; or

(e) takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises. 2017, c. 13, s. 10.

(6) The period referred to in subsection (5) is the period that,

(a) begins on the day the landlord gives the notice of termination under section 48; and

(b) ends one year after the former tenant vacates the rental unit. 2017, c. 13, s. 10.

(7) Subsections (5) and (6) apply with respect to an application under clause (1) (a) if the application is made on or after the day section 10 of the Rental Fairness Act, 2017 comes into force and is based on a notice of termination given under section 48 on or after that day. 2017, c. 13, s. 10.

TST-94689-18 (Re), 2018 CanLII 123301 (ON LTB)

13. What this provision means is that in order to succeed on this application the Tenant must lead sufficient evidence to establish it is more likely than not that:

(1) The Tenants got a notice of termination under s. 48;

(2) They moved out of the rental unit as a result of the Landlord’s notice;

(3) The notice was given in bad faith meaning the Landlord had no intention of moving

into the rental unit; and

(4) The Landlord did not in fact move into the rental unit within a reasonable time after the Tenants vacated.

(...)

18. I also find that the Landlord’s son did not move into the rental unit within a reasonable time after the Tenants vacated. As noted, the Landlord’s son was not called to testify and I have concerns about the integrity of CC’s testimony on this issue. Therefore I do not accept his claim that his son moved into the rental unit starting in mid-May 2018.and that he was delayed by postponements brought about by the renovator. On the other hand, I accept the statement of KAP that CC’s son told him he was settled in the unit next door to the rental unit.

Elkins v. Van Wissen, 2022 ONSC 2060 (CanLII)

[28] In TST-94914-18, Member Solomon held that the landlord’s duty of good faith extends beyond the time the notice of termination is served and found bad faith on the part of the landlord:

22. In many other cases, the Board has found that an unforeseen change in circumstances that results in the person listed in the N12 Notice being unable to occupy the rental unit does not constitute bad faith (see, for example, TST-66921-15, TST-87559-17, TST-80046-16). I agree that this is a case where an unforeseen change of circumstances resulted in CM failing to take occupancy of the rental unit. This change of circumstances was the agreement of purchase and sale falling through. I am satisfied that the Landlords did not foresee this happening when they served the N12 Notice.

23. However, I also agree with the following statement from the Board’s order TST-87742-17-RV, which the landlord submitted: “the Landlord’s obligation to act in good faith extends beyond the time the notice of termination is served”. I take this statement to mean that bad faith is not confined to the moment in time when a landlord gives a tenant an N12 Notice. I find that bad faith can extend to the period between when the N12 Notice was given, and the time when a tenant moves out.

(...)

[31] The Board found that the landlords had not acted in bad faith when they served the N12 notice of termination. The Member accepted that at the time notice was given, the landlord genuinely believed that the purchaser would move into the rental unit following closing. However, she found that the landlords acted in bad faith when they asked the sheriff to enforce the Board’s eviction order knowing that there was no prospect of the sale closing.

TET-04897-19 (Re), 2020 CanLII 61068 (ON LTB)

12. The Tenant seeks the following remedies: a rent differential, moving costs, an increase in her car and home insurance premiums, extra travel expenses she’s had to incur, lost wages, lost property due to downsizing and general damages for pain and suffering.

(...)

18. The Tenant also seeks $2,640.00 for increased travel expenses as her children were no longer able to walk to their schools like they used to when they resided at the rental unit. This is essentially a claim for damages arising from the Landlord’s breach. The Board has the jurisdiction to order it pursuant to s. 57(3)4 and I am satisfied the Tenants’ request in this regard is reasonable.

19. Given the policy objective enunciated in s. 57, the one year maximum that can be awarded for rent differential and the fact the school year is about 40 weeks long, it seems to me an appropriate amount for damages is $220.00 a month for ten months (the school year) totaling $2,200.00. An order shall issue accordingly.

19. The Tenant also seeks $1,980.00 in lost wages for having to take to weeks off work to move. The Tenant submitted a copy of her paystub for the pay period between August 17, 2019 and August 30, 2019 showing her net pay as $463.68. As the cause of the Tenant’s move directly relates to the Landlord’s bad faith service of then notice of termination, I find it appropriate to order $463.68 which represents her net pay for two weeks.

20. The Tenant also seeks reimbursement of $5,000.00 for lost belongings. She testified that because her new home was smaller than the rental unit, she had to dispose of many items; the total value of these items is $5,000.00. However, the Landlord did not force her to discard her items; the Tenant could have stored them in a storage facility (and claimed storage costs on her application), but she chose to discard them. Thus, I do not find the Landlord to be responsible for the choice to discard these items.

21. The Tenant sought $1,000.00 in general damages for pain and suffering for the stress the Landlord put her through. I find that the Tenant is entitled to this amount. I say this because the remedies above do not take into account the psychological impact on the Tenant of what happened; the Tenant was clearly stressed out in having to find a new place that would be appropriate for her children and allow them to attend school. She testified that as a single mother, leaving her home of eleven years and having to find something affordable was a very difficult task.

22. The Tenant’s application also sought an abatement of rent. However, no evidence was led nor were any submissions with respect to this claim at the hearing, thus this claim must be dismissed.

23. Finally, the Tenant is entitled to an order requiring the Landlord to pay the cost of filing the application.

It is ordered that:

1. The Landlord shall pay to the Tenant a $14,673.68 which represents the following: total amount of rent differential, moving costs incurred by the Tenant, extra travel expenses incurred by the Tenant’s children for no longer being able to walk to school, lost wages for having to pack her home of eleven years in two weeks and general damages for the impact the move and the Landlord’s conduct had on the Tenant.

Valdivieso v Farrah, 2020 CanLII 123103 (ON LTB)

30. However, the fact that the rental unit was listed for rent within a year, and in fact within a week of the Tenants vacating pursuant to the termination notice, creates a rebuttable presumption that the Landlords served the N12 notice in bad faith. In this case, the burden falls on the Landlord to establish that they did not serve the notice of termination in bad faith.

(..)

33. I find that the Landlord failed to rebut the presumption of bad faith. The evidence is that after the Landlord requested a rent increase in December 2018 and the Tenants requested that she first apply to the Board for an above-guideline rent increase, she terminated the tenancy. The unit was then listed for rent at a considerable increase from the Tenants’ rent, which is consistent with JV’s version of events on December 15, 2018 where the Landlord advised that she could ask for the unit back and re-rent it at a much higher price.

34. Even if I find that the Landlord did not ask for the unit back to charge rent at a higher price, I do not find that the Landlord intended to reside there for at least 12 months. The Landlord’s evidence was that after the Tenants vacated, she moved into the unit on April 1, 2019 and resided there for two months. Although the Landlord submits that there was a change in circumstance that required her to vacate the unit early, she did not submit sufficient evidence regarding this change. The Landlord did not submit any documentation showing that she was required to return to the UK in June 2019. I also find it unlikely that the Landlord was not aware that she had to return to the UK in advance of her giving the Tenants the notice to terminate, as her evidence was that she is required to renew her UK license every two years. On a balance of probabilities, I find that the Landlord knew or ought to have known that she would be required to go back to the UK within the twelve-month period she was in possession of the unit.

TST-99179-18-RV (Re), 2019 CanLII 134563 (ON LTB)

18. The Landlord testified that he served the N12 notice because his daughter had just got a job close to the location of the rental unit. A few weeks after he served the N12 notice, his daughter got a different job elsewhere and no longer required the rental unit. The Landlord did not, at any time, tell the Tenants that his daughter no longer required the rental unit and he did not serve any new notices of termination.

19. Based on the uncontested facts, I am satisfied, on a balance of probabilities that the Tenants vacated the unit because they received the N12 notice and that the Landlord served the N12 notice in bad faith. The Landlord’s legal representative submitted that the Tenants should have been aware that the Landlord no longer required the unit for his daughter because the Landlord sent a message in June 2018 indicating that he is selling the unit. However, the Landlord made no clear statement to the Tenants about the N12 notice. Having served the N12 notice and not having rescinded it, the Landlord cannot say that it was not effective as a reason to vacate the unit. From the Tenants’ perspective, they received a notice of termination and the Landlord consistently pursued vacant possession until they vacated. As for bad faith, the Landlord testified that he had changed his mind about requiring the unit for his daughter a few weeks after serving the N12 notice. From that moment onward, he no longer, in good faith, required the unit for his daughter’s residential use. His intention changed while the Tenants were still in possession of the unit and were indicating to him that they did not want to vacate. His continued insistence that they vacate the unit, without rescinding the N12 notice, is an indication of his bad faith.

TST-91350-17 (Re), 2018 CanLII 123289 (ON LTB)

16.   The Tenant requests that the Board order the Landlord to pay an administrative fine. The Tenant’s representatives submitted that in considering whether to impose a fine and in what amount, I should take into account the increased income that the Landlord is receiving from renting the unit to a new tenant. 17.   The Board’s Interpretation Guideline 16 on Administrative Fines states:

An administrative fine is a remedy to be used by the Board to encourage compliance with the Residential Tenancies Act, 2006 (the “RTA”), and to deter landlords from engaging in similar activity in the future. This remedy is not normally imposed unless a landlord has shown a blatant disregard for the RTA and other remedies will not provide adequate deterrence and compliance.

18.   The Landlord has shown a blatant disregard for the RTA by serving N12 notices of eviction in bad faith.

19.   The Tenant did not give evidence as to what the Landlord has received or currently receives in rental income from the rental unit. However, the online postings demonstrate what the Landlord expected to receive. I believe that for the purposes of deterrence, I may consider the Landlord’s expected benefit from his breach of, and blatant disregard for, the Act. The Landlord’s expected benefit is $525.00 per month. Over 12 months, this expected benefit is $6,300.00.

20.   The total of the remedies awarded to the Tenant in this order is $7,806.28 (including $50.00 for the cost of filing this application). Taking into account the Landlord’s expected benefit from breaching the Act, the Landlord’s actual cost is $1,506.28. I do not believe this amount is a sufficient deterrent, even to an individual landlord. Accordingly, the Landlord will be ordered to pay an administrative fine in the amount of $5,000.00 as a deterrent and to encourage future compliance.

References