Burden of Proof (LTB)

SWL-01205-17 (Re), 2017 CanLII 93912 (ON LTB)

5. It is the Landlord’s obligation to prove on a balance of probabilities the damage was caused by the Tenant. I believe both parties equally and given there was no detailed written incoming inspection signed by the parties to establish the condition of the rental unit, I find on a balance of probabilities the Landlord has failed to prove the Tenant damaged the cupboards.

8. It is the Landlord’s obligation to prove the damage was wilful or negligent. There was no evidence presented to support the damage to the blinds was anything other than normal wear and tear. Although the blinds were bent, in the absence of any explanation from the Landlord as to how the damage occurred, I accept the Tenant’s version of events and deny the Landlord’s claim for the blinds.

TSL-96333-18 (Re), 2018 CanLII 120833 (ON LTB)

4. The Landlord bears the obligation to prove the good faith requirement Feeney v. Noble, 1994 CanLII 10538 (ON SC), (1994) O.J. No. 2049, but is only required to establish that he genuinely intends to live in the rental unit for at least a year. The Landlord’s motives and the reasonableness of proposing the move into the subject unit and the availability of other alternatives are only relevant as circumstantial evidence from which inferences can be drawn when deciding whether a genuine or sincere intention to occupy the unit exists [Fava v. Harrison, [2014] O.J. No. 2678 (Div. Ct.); Clarke v. Bielak, [2003] O. J. No. 4479 (Div. Ct.); Salter v. Beljinac 2001 CanLII 40231 (ON SCDC), (2001) O. J. No. 2792 (Div. Ct.).

SWL-36051-12 (Re), 2012 CanLII 57779 (ON LTB)

10. The key fact in determining the nature of this tenancy is that AM moved into the rental unit a month after Tenant DB did and the handwritten signature lines on the back of the Agreement form are not dated.

11. In making findings of fact under its empowering legislation, the Board has the power to determine “the real substance” of any given transaction regardless of its outward form and, in so doing, may have regard to the good faith of the parties and the pattern of activities at the rental property.

12. While, on its face, the special terms written into the Agreement to Lease create a “joint tenancy” under which the named “Tenants” agree to be jointly and severally liable for all obligations accruing under it, that is not my finding.

13. It was the Landlord’s obligation to prove the terms of this tenancy and, on the evidence before me I do not find that he has discharged that burden.

14. There was insufficient evidence led at the hearing to confirm that the parties took possession of the rental unit at the same time, pursuant to an agreement entered at the same time and under the same terms. Again, the body of the Agreement was mute on the rent amount which as only clarified afterwards by the Landlord’s undated codicil signed only by himself.

TEL-84116-17-RV-IN2 (Re), 2018 CanLII 42495 (ON LTB)

6. The primary dispute between the parties is with respect to the amount of rent arrears outstanding.

14. On any application before the Board the person who wants to establish that a certain event happened has the burden of leading sufficient evidence to prove that their version of events is more likely than not. On an application for non-payment of rent, although the landlord as the applicant has the overall burden of proof, a landlord cannot prove a negative.

SWL-31433-12 (Re), 2012 CanLII 30019 (ON LTB)

11. I have considered whether the Landlord was required to give the Tenants an advance warning that she would start charging rent as of a certain date. For example, S.M. Waddams, in The Law of Contracts, 4th ed., 1999, (Canada Law Book Inc.: Toronto), at page 436, indicates there is authority for the proposition that where a condition in a contract is waived, the party waiving the condition may resume strict rights, but only upon reasonable notice: Smith v. Patel et al. (1977), 1977 CanLII 1396 (ON SC), 18 O.R. (2d) 132 (Ont. H.C.J.). However, I find this does not apply to the payment of rent in a residential landlord and tenant relationship. Under the Residential Tenancies Act, 2006 (the ‘Act’), the rent is set by the tenancy agreement, the payment of rent arrears is demanded by serving a Notice of Termination (form N4) under section 59 of the Act, and no other advance warning is required. Once arrears are claimed by the landlord, it is consistent with the law of debtor and creditor to require the tenant to prove that the payments were made as required by the tenancy agreement.

12. For these reasons, I find that the Notice of Termination (form N4) is valid and the rent arrears are as claimed by the Landlord.

TNL-05541-18 (Re), 2019 CanLII 87063 (ON LTB)

1. At the November 7, 2018 hearing, the Tenants submitted that the Landlord did not claim the lawful monthly rent in the Landlord’s Form N4 notice of termination and application to the Board. The Tenants alleged that they did not receive a notice of rent increase in 2012, and that the notice of rent increase they received in 2011 is void, because the Landlord did not give the required 90 days’ notice to increase the rent. The Tenants therefore submitted that their lawful rent is $756.18.

3. The Landlord’s agent testified at the November 7, 2018 hearing that the 2012 notice of rent increase the Landlord served on the Tenants was invalid, because the Landlord did not give the Tenants the required 90 days’ notice to increase the rent under subsection 116(1) of the Residential Tenancies Act, 2006 (the ‘Act’). The Landlord’s agent further testified that, despite the improper notice, the Landlord collected the rent increase claimed in the 2012 notice of rent increase. Upon discovering its error, however, the Landlord credited the Tenants $231.66 on September 20, 2013. The Landlord’s representative submitted business records to confirm the Landlord’s agent’s testimony.

4. Based on the Landlord’s evidence, I conclude that the Landlord’s 2012 notice of rent increase is invalid.