Bad Faith - Re: N12 (LTB)

Loc Le v. O’Grady, 2018 ONSC 6387 (CanLII)

[2] The Review Order confirmed the Board’s dismissal of the Landlord’s application to terminate the residency of the Respondents (the “Tenants”). The application was dismissed pursuant to s. 83(3)(c) of the Residential Tenancies Act, 2006 (the “Act”) which provides that the Board shall refuse to grant the application where satisfied that, among other things, the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights.

[3] The Tenants rent the Landlord’s third floor rental unit at a monthly rate of $1,225.00. They have rented the unit for approximately the last 5 years. The tenancy agreement for the unit expired on May 31, 2017.

[4] In February 2017, the Landlord and his spouse sold their house and moved into the third floor of a house occupied by their children and other relatives.

[5] In May 2017, the Landlord approached the Tenants about increasing the monthly rate to $1,400.00, an amount well in excess of the 1.5% rent increase guideline for 2017. The Tenants refused to pay the increase but indicated a willingness to consider an agreement to increase the rent to $1,300.00 in exchange for the Landlord improving services and facilities to the rental unit. The parties were not able to arrive at an agreement as to any increase in rent or improvements to the unit.

[6] On May 31, 2017, the Landlord served the Tenants with a Notice of Termination (Form N12) which is issued where the landlord, a purchaser, or family member requires the unit for personal possession. The Tenants did not vacate the premises in accordance with the Notice. The Landlord filed an application for an order to evict the tenants on June 5, 2018, and requested the Tenants pay rent arrears each day they stay in the unit after the termination date. The Landlord and Tenant Board (the “Board”) heard the application on August 2, 2018.

[7] In its decision, the Board determined that the application should be dismissed. Although it found that the Landlord, in good faith, intended to occupy the unit pursuant to s. 48(1) of the Act, it ultimately dismissed the application pursuant to s. 83(3)(c) of the Act.

...

[26] The Appeal is dismissed. If the parties are unable to agree on costs they may make written submissions, not to exceed three pages plus attachments each, within 45 days.

Bonakdarian v Kang, 2020 CanLII 118006 (ON LTB)

7. The onus is on the Landlord to establish that the purchaser in good faith requires the rental unit for the purpose of residential occupation.

8. In the leading case law involving a landlord’s own use application, Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), [2001], O.J. No. 2792 (Div. Ct.), the Divisional Court held that:

the test of good faith is genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal…

9. The Landlord submitted a Declaration of VF, pursuant to subsection 72(1) of the Act, confirming that VF requires the unit for her personal occupation for a period of at least one year. VF provided confirming testimony that she in good faith requires possession of the rental unit for the purpose of her own residential occupation and intended to live in the rental unit for at least one year after the closing date.

10. The Tenant raised several issues to contest the Landlord’s good faith intention and stated that she does not believe that the Landlord and the Purchaser VF will close the sale of the property or in the alternative it is not a sale in good faith. The Tenant also raised several arguments regarding the lack of good faith of the Landlord including the following:

• The sale of the property is not a true transfer of title and is only being made in order to wrongfully terminate the tenancy of the Tenant;

• The Landlord’s application should be denied as the Landlord has issued three prior N12 Notices of Termination to terminate the Tenant’s tenancy in the past;

• The Landlord’s application should be denied pursuant to subsection 83(3) of the Act as there is an outstanding order of the City of Toronto; and

• The Landlord’s application should be dismissed as the Landlord is attempting to sell the rental unit wrongfully including the Tenant’s appliances in the sale.

...

20. It was uncontested that the Landlord had also served the Tenant with the Notices and applications as listed below.

Application Number	Grounds	Determination
TSL-92202-18	N12 for Purchaser Use	Withdrawn by LL as Agreement fell through as the Purchaser withdrew
TSL-98852-18	N12 for Purchaser Use	Dismissed for technical reasons
TSL-00881-18	N12 for Purchaser Use	Dismissed: Agreement with the current Purchaser was still conditional and not certain to close

21. The Tenant testified that these applications show that the Landlord has acted in bad faith and has repeatedly attempted to terminate her tenancy.

22. The Landlord testified that he brought each of the prior applications in good faith but that there were difficulties with each of them. In the first, he had a valid agreement of purchase and sale as the purchaser failed to close the sale. In good faith, he did advised the Board and the Tenant and the application was withdrawn. This was not a bad faith attempt to terminate the tenancy but confirmed his intention to sell the property.

23. As well, the third application was dismissed as it was brought prematurely as the conditions on the Agreement of Purchase and Sale had not yet been waived. The Landlord testified that once the conditions were waived, he refiled this application in order to close on the sale of the unit.

24. Based on the evidence before the Board, on the balance of probabilities I find that the Landlord has attempted twice to sell the property, with one deal not closing and the other in process. I do not find that this demonstrates bad faith.

TEL-05397-19 (Re), 2020 CanLII 61344 (ON LTB)

1. The Landlords seek possession of the rental unit for their daughter. She was not called as a witness at the hearing so the Landlords rely on her affidavit sworn July 13, 2019. The affidavit says she works for T.C., has been transferred from Ottawa to Toronto, and needs the rental unit to live in.

2. The issue that arises here is whether or not the evidence is sufficient to establish the Landlords’ daughter genuinely intends to move into the rental unit.

3. Given all of the evidence before the Board I find that the Landlords have not met their burden of proof. I am not satisfied that it is more likely than not that the Landlords’ daughter intends to move into the rental unit. I say this for the following reasons.

4. Prior to the notice of termination being served on the Tenants on August 23, 2019, the Landlords’ representative sent the Tenants a letter dated March 30, 2019. It says the Landlords’ daughter was transferred from Ottawa to Toronto and that she requires the rental unit.

5. But according to the Landlord, his daughter moved from Ottawa to Toronto more than a year prior to that letter, the notice being served, and the affidavit being sworn. She moved in February of 2018. That more than one year delay between the move and the demand the Tenants move out suggests that her move actually has nothing to do with why she allegedly wants to move into the rental unit.

6. The Landlord says that his daughter currently resides with the Landlords. She is getting divorced and needs to move into the rental unit because the Landlords are finding it difficult to have the Landlords’ daughter and their granddaughter live with them. Nothing about this reason for moving is suggested by the affidavit sworn by the Landlords’ daughter.

7. Although this may well be why the Landlords want her to move, the issue for the Board is not whether or not the Landlords genuinely want their daughter to move out of the family home and into the rental unit; the issue is whether or not she genuinely intends to move into it. And the only justification contained in the affidavit for the move is the transfer from Ottawa to Toronto. In other words, there is no evidence before the Board from the Landlords’ daughter that she needs the rental unit because there are recent strains and stresses in her family relationships in the Landlords’ home.

8. Finally, there is a relevant history between these parties.

9. In March of 2017 the Landlords attempted to convince the Tenants to move out without serving proper notice.

10. On March 10, 2017 the Landlords sent an invalid “notice to vacate” to the Tenants saying the Landlords intend to renovate the rental unit and want the Tenants to move out. After obtaining legal information the Tenants sent the Landlords a letter on March 23, 2017 stating that they would not vacate the rental unit. No evidence was led to suggest any renovations were done. The Landlords also have a history of asking for illegal rent increases.

11. That evidence of the history between the parties tends to support the proposition that the Landlords have a tendency to try and skirt the law. That tendency suggests the Landlords may be capable of serving a notice of termination in bad faith.

12. Finally, the Tenants say the Landlords’ daughter has never seen the rental unit. It seems unlikely that someone would want to move into a rental unit sight unseen particularly where there is a young child involved and prior statements have been made by the Landlords about major renovations needing to be done.

13. Given all of the above, I am not satisfied that is more likely than not that the Landlords’ daughter genuinely intends to move into the rental unit. Therefore, the application shall be denied.

14. The Landlords paid the Tenants compensation equal to one month's rent in accordance with section 48.1 of the Residential Tenancies Act, 2006 (the ‘Act’). Pursuant to s. 73.1 an order shall issue requiring the Tenants to pay to the Landlords the compensation paid.

15. This order contains all of the reasons for the decision in it. No further reasons shall be issued.