Res Judicata (RTA)

CEL-75559-18-RV (Re), 2018 CanLII 88526 (ON LTB)

2. There is a serious error in order CEL-75559-18, issued on June 1, 2018. Although the Member’s determinations with respect to the issue of res judicata were reasonable, her decision that the circumstances did not warrant discretion against the application of res judicata was not reasonable and it is on that basis that the review request is granted.

3. The Supreme Court of Canada has determined that there is discretion to refuse to apply the doctrine of issue estoppel or res judicata in circumstances where injustice or unfairness may be the result (Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.J. No 46).

4. The Landlord filed a prior L2 application with the Board based on a N12 notice of termination. That N12 notice, with a termination date of March 31, 2018, states that the Landlord, his spouse and his child intend to move into the rental unit.

5. That application was resolved by order CEL-74230-18, issued on April 13, 2018. The Landlord’s prior L2 application was dismissed because the Landlord did not pay the Tenants one month’s rent as compensation as required by section 55.1 of the Residential Tenancies Act, 2006, (the ‘Act’).

6. Section 55.1 of the Act states:

If the landlord is required to compensate a tenant under section 48.1, 52, 54 or 55, the landlord shall compensate the tenant no later than on the termination date specified in the notice of termination of the tenancy given by the landlord under section 48 or 50.

7. Section 83.4 of the Act states:

The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 52, 54 or 55, as the case may be.

8. The hearing of the prior L2 application took place on April 4, 2018. As of that hearing date, the Landlord had not paid the Tenants one month’s rent as compensation. Since section 55.1 states that the compensation must be paid no later than the termination date in the notice of termination, which was March 31, 2018, the statutory requirements of section 55.1 of the Act were not met and the Board had no jurisdiction to terminate the tenancy due to section 83.4 of the Act.

9. The L2 application was dismissed due to the Landlord’s failure to meet the requirements of section 55.1 of the Act. That issue should have been dealt with as a preliminary matter without making findings on the substance of the issue in the application. The order determined that the Landlord was acting in good faith and required the rental unit for his own residential use. Those findings prevented the Landlord from filing another application with the Board to permit him to live in his own property even though he did comply with the requirements of section 55.1 of the Act in the second L2 application.

10. Similarly, if the notice of termination that the application is based on is not valid or if the affidavit required by section 72 of the Act is not provided, those issues are dealt with on a preliminary basis and no findings are made on the substantive issue so that a landlord is not prevented from filing another application on the same grounds after a valid notice of termination is issued or an affidavit is provided.

11. There was a procedural error made under the first L2 application since determinations should not have been made regarding good faith when the technical requirements for the application were not met. In effect, the findings made with respect to good faith barred the Landlord from ever applying for the same issue again even though the Member was satisfied that the Landlord had a good faith and genuine intention to live in the unit that he owns. In the circumstances, res judicata should not be applied and the second L2 application should be permitted to proceed now that the technical requirements under the Act have been met.

12. The Landlord owns the house that the rental unit is located in. He and his family used to live in it. He moved to make life easier for his son while he attended university in another City. The son is finished with his schooling and the family want to return to the family home. In the circumstances, it would be unfair and unjust to strictly apply the doctrine of res judicata since it would prevent the Landlord from ever being able to live in his property.