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.