N12 Affidavit Requirements

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-01
CLNP Page ID:	1955
Page Categories:	N12 Affidavit Requirements
Citation:	N12 Affidavit Requirements, CLNP 1955, <https://rvt.link/54>, retrieved on 2024-11-01
Editor:	Sharvey
Last Updated:	2023/08/16

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Residential Tenancies Act, 2006

71.1 (1) A landlord who, on or after the day subsection 11 (1) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force^(01/09/2021), files an application under section 69 based on a notice of termination given under section 48 or 49 shall file the affidavit required under subsection 72 (1) at the same time as the application is filed. 2020, c. 16, Sched. 4, s. 11 (1).

(2) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (1). 2020, c. 16, Sched. 4, s. 11 (1).

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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; or

(b) a notice of termination under section 49, 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. 2017, c. 13, s. 13.

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Alternatives to affidavits

192.1 Where a provision of this Act requires an affidavit from a person with respect to a specified statement or specified information, the Rules may,

(a) authorize the use of another document, which may be unsworn, from that person with respect to that specified statement or specified information; and

(b) require that the document may be used only if it is provided to the Board in accordance with the Rules. 2017, c. 13, s. 27.

Landlord and Tenant Board Specific Rules

1.5 Where the RTA requires an affidavit respecting a specified statement or specified information, the LTB will also accept a signed and dated declaration containing the specified statement or specified information provided the declaration confirms the truth of the information or statement and acknowledges that making a false declaration is an offense.

Latham v. Marazzi, 2022 ONSC 6912 (CanLII)

[15] The test for the proposed appellant to demonstrate merit to the appeal is not stringent. As set out in Duca Community Credit Union Ltd. v. Diovannoli, 2001 CanLII 24017 and reproduced in Go Fleet Corporation v. So, 2021 ONSC 2199, where there is a right of appeal, the question is whether there is “so little merit to the proposed appeal that the appellant should be denied [his] important right of appeal.”

[16] Here, the Tenant has raised a question of law regarding the interpretation of sections 71.1(1) and (2) and 72(1)(a) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17. These sections require a landlord who seeks to terminate a tenancy for their own residential occupation to file an affidavit stating that they in good faith require the unit for their own personal use for a period of at least one year. The Landlord did not file affidavit with the specific required wording in this case. However, the LTB in the original order relied on Sertic v. Mergarten, 2017 ONSC 263, in which this Court affirmed the entitlement of the LTB to accept the required affirmation by viva voce evidence when the affidavit was insufficient.

[17] The wording of the statutory provisions has changed since this Court’s decision in Sertic v. Mergarten. The Tenant has raised a question of law. Although I anticipate he may have an uphill challenge on appeal, his appeal is not of so little merit to be denied his right of appeal.

F. Overall Justice

[18] The overall justice of this case militates in favour of granting an extension of time to appeal the original order. The Tenant sought a review of that order, but, due to an administrative error, the LTB did not release the review order to the parties when it was first made. The Tenant is entitled to appeal the review order. In these circumstances, it is in the interests of justice for the appeal to also include the original order.

Sertic v Mergarten, 2017 ONSC 263 (CanLII)

[7] While the tenant raises issues regarding the bona fides of the landlord’s desire to occupy the premises for her own purposes, the Vice-Chair heard the evidence on this point, and was satisfied that was the intention of the landlord. The tenant submits that that finding was not open to the Board because the landlord’s affidavit did not so state. I am unaware of any legal principle that provides that the contents of an affidavit overrules the viva voce evidence heard. While conflicts between the two are always a matter of concern, it is ultimately up to the trier of fact to decide what evidence they accept and what they do not. The Board accepted the viva voce evidence of the landlord. There is no basis for this court to interfere with his conclusion on the evidence that he heard.

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.

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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.

Dorus v Ghannam, 2021 CanLII 145505 (ON LTB)

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.

Taillon v Ackerman, 2021 CanLII 143577 (ON LTB)

8. With respect to the N12 notice, the Landlord’s Representative submitted that the N12 Notice was ‘very brief’ and did not meet the requirements under the Act.

9.     Section 72(1) of the Act states the following:

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; or

(b) a notice of termination under section 49, 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. 2017, c. 13, s. 13.

10. In this case, the declaration filed with the Board was signed by Jason Taillon, the son of the Landlord. In the declaration, Jason Taillon states that he intends to move into the rental unit in good faith and live there for at least one year.

11. While succinct, I find that the declaration filed in support of the Landlord’s application does meet the statutory requirements under section 72(1) of the Act.

TSL-05638-19 (Re), 2019 CanLII 134551 (ON LTB)

24. The Act does not require that the person moving into the unit give viva voce evidence regarding their own intentions. There is no requirement that a landlord call as a witness the intended occupant. Section 72 of Act does require that the intended occupant provide an affidavit or sworn statement respecting their intention to move into the rental unit, and the Landlord has complied with this requirement