Res Judicata (RTA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-21
CLNP Page ID:	1542
Page Categories:	[Legal Principles]
Citation:	Res Judicata (RTA), CLNP 1542, <>, retrieved on 2024-05-21
Editor:	P08916
Last Updated:	2021/07/29

CEL-75559-18-RV (Re), 2018 CanLII 88526 (ON LTB)

2. There is a serious error in order CEL-75559-18, issued on June 1, 2018. Although the Member’s determinations with respect to the issue of res judicata were reasonable, her decision that the circumstances did not warrant discretion against the application of res judicata was not reasonable and it is on that basis that the review request is granted.

3. The Supreme Court of Canada has determined that there is discretion to refuse to apply the doctrine of issue estoppel or res judicata in circumstances where injustice or unfairness may be the result (Danyluk v. Ainsworth Technologies Inc. [2001] 2 S.C.J. No 46).

4. The Landlord filed a prior L2 application with the Board based on a N12 notice of termination. That N12 notice, with a termination date of March 31, 2018, states that the Landlord, his spouse and his child intend to move into the rental unit.

5. That application was resolved by order CEL-74230-18, issued on April 13, 2018. The Landlord’s prior L2 application was dismissed because the Landlord did not pay the Tenants one month’s rent as compensation as required by section 55.1 of the Residential Tenancies Act, 2006, (the ‘Act’).

6. Section 55.1 of the Act states:

If the landlord is required to compensate a tenant under section 48.1, 52, 54 or 55, the landlord shall compensate the tenant no later than on the termination date specified in the notice of termination of the tenancy given by the landlord under section 48 or 50.

7. Section 83.4 of the Act states:

The Board shall not issue an eviction order in a proceeding regarding termination of a tenancy for the purposes of residential occupation, demolition, conversion to non-residential rental use, renovations or repairs until the landlord has complied with section 48.1, 52, 54 or 55, as the case may be.

8. The hearing of the prior L2 application took place on April 4, 2018. As of that hearing date, the Landlord had not paid the Tenants one month’s rent as compensation. Since section 55.1 states that the compensation must be paid no later than the termination date in the notice of termination, which was March 31, 2018, the statutory requirements of section 55.1 of the Act were not met and the Board had no jurisdiction to terminate the tenancy due to section 83.4 of the Act.

9. The L2 application was dismissed due to the Landlord’s failure to meet the requirements of section 55.1 of the Act. That issue should have been dealt with as a preliminary matter without making findings on the substance of the issue in the application. The order determined that the Landlord was acting in good faith and required the rental unit for his own residential use. Those findings prevented the Landlord from filing another application with the Board to permit him to live in his own property even though he did comply with the requirements of section 55.1 of the Act in the second L2 application.

10. Similarly, if the notice of termination that the application is based on is not valid or if the affidavit required by section 72 of the Act is not provided, those issues are dealt with on a preliminary basis and no findings are made on the substantive issue so that a landlord is not prevented from filing another application on the same grounds after a valid notice of termination is issued or an affidavit is provided.

11. There was a procedural error made under the first L2 application since determinations should not have been made regarding good faith when the technical requirements for the application were not met. In effect, the findings made with respect to good faith barred the Landlord from ever applying for the same issue again even though the Member was satisfied that the Landlord had a good faith and genuine intention to live in the unit that he owns. In the circumstances, res judicata should not be applied and the second L2 application should be permitted to proceed now that the technical requirements under the Act have been met.

12. The Landlord owns the house that the rental unit is located in. He and his family used to live in it. He moved to make life easier for his son while he attended university in another City. The son is finished with his schooling and the family want to return to the family home. In the circumstances, it would be unfair and unjust to strictly apply the doctrine of res judicata since it would prevent the Landlord from ever being able to live in his property.

TSL-04224-19-AM (Re), 2019 CanLII 134284 (ON LTB)

1. On February 27, 2019 the Landlord served the tenants with an N13 seeking to convert the property back to its original use as a commercial property. The notice listed the termination date as June 30, 2019.

2. The Landlord has obtained all the necessary permits. There is no requirement under s. 73.1 for the landlord to pay compensation because the property has less than 5 rental units.

3. The Tenants allege that the Landlord is giving them notice in bad faith because he indicated to them previously that he could get much more for their rental unit than they are presently paying. The Tenants believe the Landlord simply wants to charge more rent. As evidence of this, the Tenants say the Landlord tried to evict them previously using an N12 which was dismissed by the Board because the Landlord admitted that he did not intend to reside in the property full time but intended to live in the rental unit part time or periodically when he and his wife visit Toronto. They live full time outside of the City a few hours drive away.

4. The Tenants also argued that the Landlord’s application should be dismissed because it is res judicata because of TSL-97116-18 which dismissed the Landlord’s N12. I disagree, paragraph 14 of that Order makes it clear that Member’s findings were not intended to bar any future applications by the Landlord in the event that any of his circumstances changed. The Member specifically says: “ My decision in this application does not prejudice any future finding about the Landlord’s use should the Landlord’s plans materially change.” Moreover, N12 and N13 applications require different factual assessments.

5. The Tenants submit that the mere fact that the Landlord has attempted to terminate the Tenancy in the past using an N12 is proof that he is acting in bad faith and likely wants them out so that he can re-rent the unit for more.

6. Interestingly the Landlord does not dispute the Tenants view that he wants to terminate the tenancy in part because they are not getting along.

7. The Landlord himself testified that the relationship has soured, and he has grown tired of having to travel into the City to attend “every single” complaint. He testified that he would rather board the entire property up and leave it vacant than deal with the constant complaints of the Tenants

8. As with an N12 application, I am not required to access the reasonableness of the Landlord’s plan, I need only determine if he has proven on balance of probabilities that he has genuine intention to undertake the conversion of the property as claimed on his N13. The fact that Landlord indicated not too long ago that he intends to move into the rental unit support a finding that he may have other reasons for wanting to terminate the tenancy but those reasons do not necessarily amount to bad faith.