Reasons N12's Have Failed

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2391
Page Categories:	[Personal Use Application (LTB)]
Citation:	Reasons N12's Have Failed, CLNP 2391, <https://rvt.link/cd>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/07/15

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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.

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