Reasonableness (Re: Landlords Own Use)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1798
Page Categories:	Personal Use Application (LTB)
Citation:	Reasonableness (Re: Landlords Own Use), CLNP 1798, <4c>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/04/04

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Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC)

[18] In my view, s. 51(1) charges the finder of fact with the task of determining whether the landlord's professed intent to want to reclaim the unit for a family member is genuine, that is, the notice to terminate the tenancy is made in good faith. The alternative finding of fact would be that the landlord does not have a genuine intent to reclaim the unit for the purpose of residential occupation by a family member.

[19] The TPA replaced the Landlord and Tenant Act, R.S.O. 1990, c. L.7 (the "LTA") [Part IV]. Section 103(1) of the LTA provides:

103(1) Despite section 98, 99, 100, 101 or 102, where a landlord in good faith requires possession of residential premises at the end of,

(a) the period of the tenancy; or

(b) the term of a tenancy for a fixed term,

for the purpose of occupation by himself or herself, his or her spouse or a child or parent of the landlord or the landlord's spouse, the period of the notice of termination required to be given is not less than sixty days.

[20] The case law establishes that under s. 103, a landlord need only show a genuine intention to terminate the tenancy for the purpose of occupation by a family member to satisfy the "good faith" requirement. See, for example, Decristofano v. Darr, [1986] O.J. No. 2029 (QL) (Dist. Ct.), at 3 [summarized 1 A.C.W.S. (3d) 335]; Duke's Trailer Court Ltd. v. Block, [1997] O.J. No. 2415 (QL) (Gen. Div.), at 6 and 7 [reported 10 R.P.R. (3d) 194]; and Re Higgins and Mathot (1983), 1983 CanLII 1781 (ON SC), 45 O.R. (2d) 377 (Co. Ct.).

[21] In dealing with a similar provision of the Rent Act 1968 (U.K.), 1968, c. 23, Sch. 3, Part II, Case 10, para. (c), as amended, Stephenson L.J. in Kennealy v. Dunne, [1977] 2 All E.R. 16 (C.A.), at 23-4 stated:

[The word] "required" . . . does not mean "reasonably" required: it means no more than bona fide wanted and genuinely intended to be occupied as a residence at once, or at any rate within a reasonable time, but so wanted and intended whether reasonably or unreasonably, even from the landlord's point of view.

[22] This test of "required" was accepted and adopted by Gibson J. in applying s. 103 of the LTA: McLean v. Mosher (1992), 1992 CanLII 7625 (ON SC), 9 O.R. (3d) 156 (Gen. Div.), at 159. See also Mehta v. Ibrahim, [1989] O.J. No. 1065 (QL) (Dist. Ct.).

[23] This interpretation is consistent with the ordinary meaning of the verb "requires". The Concise Oxford Dictionary 9th ed. (Clarendon Press, Oxford: 1995) at 1169 defines the verb "require" to mean "1. need; depend on for success or fulfilment (the work requires much patience)" and includes "6. wish to have (is there anything else you require?)"."

[24] 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.

[25] In my view, the legal standard for the Tribunal as finder of fact remains the same under s. 51(1) of the TPA as seen in the case law interpreting s. 103(1) of the LTA.

...

[31] In my view, the Tribunal correctly applied the statutory test, by looking to all the relevant facts and determining that the landlord's notice to terminate the tenancy was given in good faith for the purpose of requiring possession of the rental unit for the purpose of residential occupation by the landlord's son and his family. I find the analysis and weighing of the various facts to have been carefully done. The findings are supported by the evidentiary record. The Tribunal made findings of credibility. The Tribunal believed the landlord and found he has a genuine intent to reclaim the residential unit in question for occupation by his son and his son's family. The Tribunal was entitled to make the findings of fact that it did.

[32] I also find that the Tribunal properly considered the relevant factors in exercising the broad discretion afforded under s. 84(1) in deciding not to refuse the landlord's application for an eviction order on the basis of fairness but to postpone the enforcement of the order of eviction for almost four months. See Peel Non-Profit Housing Corp. v. McNamara (1991), 1991 CanLII 8219 (ON SCDC), 2 O.R. (3d) 414, 78 D.L.R. (4th) 606 (Div. Ct.); Finnermark v. Hum, [2000] O.J. No. 3727 (QL) (Div. Ct.), at 2 [summarized 100 A.C.W.S. (3d) 150].

HOL-02388-18 (Re), 2018 CanLII 111837 (ON LTB)

13. The obligation of the Board in considering applications for Landlord’s own use is to consider the circumstances of each case in relation to the criteria laid out by the leading cases of the Divisional Court:

Beljinac v. Salter 2001 CanLII 40231 (ON SCDC), (2001) O.J. No. 2792 (Div. Ct.), (“Salter”) when referring to Justice Steele’s reasons in Feeney v. Noble (1994), 19, O.R. (3d) (Div. Ct.), stated that:

“…the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord’s proposal.” And in the more recent decision of Fava v. Harrison, 2014 ONSC 3352 (CanLII) the Divisional Court, in considering this issue in the context of the Act found as follows:

“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.”