Reasons N12's Have Failed

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	2391
Page Categories:	[Personal Use Application (LTB)]
Citation:	Reasons N12's Have Failed, CLNP 2391, <https://rvt.link/cd>, retrieved on 2024-11-26
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.

Taillon v Ackerman, 2021 CanLII 143577 (ON LTB)

12. The Landlord’s son did not attend the hearing to provide direct testimony. The Landlord did not provide any reasons to the Board as to why her son did not testify at the hearing.

13. While the Statutory Powers Procedure Act, 1990 permits administrative tribunals to allow hearsay evidence, in Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 [Manikam], the Divisional Court stated that administrative tribunals must first assess whether the hearsay evidence is necessary and reliable. In addition, in Manikam, the Court found that the Board’s acceptance of hearsay evidence constituted a breach of procedural fairness because of the inability of the Tenant to cross-examine the person who uttered the statement in dispute and that the hearsay evidence was not both necessary and reliable.

14. In this case, the person who signed the declaration, James Taillon, did not attend the hearing at all. As such, the Tenant was unable to cross-examine James Taillon on the contents of the declaration. Procedural fairness dictates that the person who signed the declaration be made available for cross-examination by the opposing party.

15. In addition, the Landlord’s evidence regarding her son’s intentions to occupy the rental unit is entirely hearsay. The Landlord’s son ought to have provided testimony at the hearing and be subject to cross-examination, both on the contents of his declaration and on his intentions regarding this rental unit. I find that the hearsay evidence was not necessary, and as such, I give it no weight. Since the Landlord’s evidence does not have any weight in this proceeding, there is no evidence before the Board to support the application to terminate the tenancy.

16. In light of these factors, the Landlord’s application shall be dismissed for a lack of evidence.

Dorus v Ghannam, 2021 CanLII 145505 (ON LTB)

1. On February 2, 2021 the Landlords gave the Tenant an N12 notice of termination for landlord’s own use. The termination date on the N12 notice is May 31, 2021. The notice indicated that the child of the Landlords required the use of the rental unit.

2. The Landlord has not met the requirements under section 72(1)(a) of the Residential Tenancies Act, 2006 (the ‘Act’), which requires the filing with the Board an affidavit sworn by the person who needs the unit. The declaration must certify that the person in good faith requires the rental unit for her own personal use for a period of at least one year.

3. The Landlords submitted a declaration signed by the Landlord, Julius Dorus, dated June 10, 2021 indicating that their daughter intends to move into the rental unit in good faith for at least one year. The affidavit does not meet the requirements under section 72(1)(a) of the Act because the person that signed and completed the declaration is not the person that personally requires the unit. Moreover, the declaration was provided to the Board during the hearing of the matter.

4. The Landlords’ representative elected not to call any further witnesses for the hearing when asked whether they wished to do so.

...

9. However, since I am refusing to grant the Landlord’s application for not providing the required declaration, I will hereby order that the Tenant either return the cheque or, if they have cashed it, pay the amount back to the Landlords pursuant to subsection 73.1 of the Act.

Koledin v Hewlett, 2021 CanLII 144650 (ON LTB)

2. The residential unit is a basement apartment in a house owned and lived in by the Landlord.

3. The Landlord testified that, prior to the Tenant moving in, she would use the basement for cooking, sleeping and having family stay in the unit when they visited. The Landlord further testified that she wants to reclaim the basement unit for the same purposes.

4. The Landlord testified that she suffers with arthritis and has difficulty navigating stairs and requires a handicapped parking space.

5. The Landlord provided a sworn Affidavit which stated, in part:

“Ms. Hewlett's behaviour has grown progressively more confrontational and aggressive, which has greatly affected my emotional wellbeing. She has engaged in a pattern of disruptive behaviour, which includes banging on walls and slamming doors in the early morning hours. As a result of Ms. Hewlett's behaviour, I now suffer from severe anxiety, insomnia, and stress, documented by letter of Dr. Alex Peters.”

6. The issue in this application is: was the N12 served in good faith? The Divisional Court has also made clear that I may draw inferences about whether or not the N12 was served in good faith based upon the conduct and motives of the Landlord (Fava v. Harrison (2014 ONSC 3352 ONSC DC) (“Fava”).

7. The Landlord claims that she requires the use of the basement unit for residential purposes however she testified that she is unable to navigate stairs and that there is a history of the Landlord’s efforts to evict the Tenant because she finds her troublesome.

8. Based upon the testimony of the Landlord, I am not persuaded that the Landlord served the N12 in good faith. After weighing the evidence of the Landlord and drawing inferences from it – as I am permitted to do under Fava, the Landlord’s evidence and testimony suggests that the N12 was served to rid the Landlord of this Tenant and not necessarily for the purpose of the Landlord’s own use.

9. Having determined that the Landlord does not in good faith require possession of the rental unit for her own residential use, I am not required to address matters relating to service of materials between the parties.

10. If the Tenant received compensation from the Landlord under section 48.1 of the Act, the Tenant shall re-pay the amount of compensation immediately, pursuant to section 73.1 of the Act.

Buchan v Georges, 2021 CanLII 77350 (ON LTB)

7. To meet the requirement of the Act the person taking possession of the unit must have a firm intention to move into the unit for a period of at least one year. There is an obligation on the Landlord to satisfy the Board that the occupation complies with the requirements of the Act.

8. At the hearing the Landlord testified that he did not intend to reside in the rental unit once it was vacated. He testified that he wanted the unit back, as it is his, in order to clean the unit, do some improvements and sell it. He testified it was his intention to sell the unit and in fact he has entered into an Agreement of Purchase and Sale for the rental unit since serving the Notice of Termination. He testified that the Sale has not yet closed but he requires the unit back for vacant possession by the purchasers.

9. Subsection 48 grounds for termination of a tenancy do not apply where a Landlord does not intend, or never intended, to personally occupy the renal unit. The Landlord testified that when serving the N12 notice, his intention was to list the property for sale. This is not a valid ground to terminate a tenancy under the Act.

10. Based on the evidence before the Board, I do not find on a balance of probabilities that the Landlord served the N12 notice in good faith or that he intends to reside in the unit for a period of at least one year.

11. The Landlord’s application must be dismissed.

Nevin and nadeem Bhimani v Kathleen Macdonald, 2023 ONLTB 39863 (CanLII)

19. Steele J. in the Divisional Court has stated "... the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord's proposal." See Feeney v. Noble (1994), 1994 CanLII 10538 (ON SC), 19 O.R. (3d) 762 (Div. Ct.) at 764.

20. While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal properly stops short of entering into an analysis of the landlord's various options:.............Once a landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s. 51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s. 51(1) standard.

21. In Fava v. Harrison, 2014 ONSC 3352 (CanLII) the Court commented: We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith to occupy the property.

22. When I examine the evidence presented, I am not satisfied on a balance of probabilities of the Landlord’s genuine intention of the rental unit. Both the Landlord and her son did not provide an amount of rent the son would be charged. I find it more likely than not, if the Landlord’s genuine intention was to provide her son the rental unit, they would had already have established the amount of rent which would be charged once the Landlord regained possession of the rental unit. They were both uncertain what the amount would be. It seems there was a lack of planning between the Landlord and her son. I expected more evidence within the family, the Landlord and son were wishy washy about their plans.

23. Further, Mr. Bhimani testified he still attends the University and is part of the epee program. He did apply for employment but has not heard back. There was no evidence presented this was for costs savings or proximity to potential employment. There was no evidence from Mr. Bhimani to suggest those reasons, it appears the evidence presented by Mr. Bhimani was “I am the son I wish to live there”. I am not satisfied based on the lack of evidence there was a genuine intention to occupy the rental unit for residential purposes for a period of one year.

24. As a result, the Landlord’s application shall be dismissed.

Schaafsma v Botham, 2021 CanLII 140217 (ON LTB)

4. In support of this application, the Landlord filed a declaration signed by Ms Schaafsma. That declaration does not, however, comply with the requirements of section 72(1) of the Act, which provides, in part:

72 (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on,

(a) a notice of termination given under section 48 on or after the day section 13 of the Rental Fairness Act, 2017 comes into force, unless the landlord has filed with the Board an affidavit sworn 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 for a period of at least one year…. (emphasis added)

5. The declaration signed by Ms Schaafsma indicates only that the Landlords now live in Canada permanently and require the rental unit. It does not indicate for what period the Landlords intend to occupy the rental unit and does not attest to the Landlord’s good faith. However, Ms Schaafsma provided oral evidence that she and her family plan on living in the rental unit ‘indefinitely’.

6. Ms Schaafsma’s evidence is that the Landlords: (a) sold their house in Chatham, Ontario on September 1, 20211; and (b) as a result require possession of the rental unit for purposes of residential occupation. She further asserts that Mr. Schaafsma works in Windsor, Ontario and that moving into the rental unit ‘makes sense’.