LTB Order LTB-L-019749-23

Order under Section 69 Residential Tenancies Act, 2006 2023 ONLTB 68153 (CanLII) Citation: M. H. v C., 2023 ONLTB 68153 Date: 2023-10-26 File Number: LTB-L-019749-23 In the matter of: 941 Lake Dr. North Keswick ON L4P3E9 Between: M.M.H. Landlord And W.C. Tenants Leeanna C. M.M.H. (the 'Landlord') applied for an order to terminate the tenancy and evict W.C. and Leeanna C. (the 'Tenants') because: • the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation for at least one year. The Landlord also claimed compensation for each day the Tenants remained in the unit after the termination date. This application was heard by videoconference on October 3, 2023. The Landlord’s representative, Reyhaneh Lajevardi, the Landlord’s spouse, Sedigheh Sadayevatan, the Tenants and the Tenants’ father, Paul C. attended the hearing. Determinations: 1. As explained below, the Landlord has proven on a balance of probabilities the grounds for termination of the tenancy and/or the claim for compensation in the application. Therefore, application is granted and the tenancy will terminate. 2. The Tenants were in possession of the rental unit on the date the application was filed. N12 Notice of Termination 3. On February 10, 2023, the Landlord gave the Tenants an N12 notice of termination with the termination date of April 14, 2023. The N12 claims that the Landlord requires vacant Order Page 1 of 4  File Number: LTB-L-019749-23 possession of the rental until for the purpose of residential occupation by the Landlord for a period of at least one year. 4. The Landlord compensated the Tenants an amount equal to one month's rent by April 14, 2023. 2023 ONLTB 68153 (CanLII) 5. The Landlord’s spouse testified that Landlord requires the rental unit as they are in financial difficulty and cannot afford to pay the mortgage and are suffering financial losses. The Landlord’s family currently lives in a house in Toronto that they rent. They would like to move to the rental unit so that their expenses are minimalized. As a result, the Landlord requires the rental unit for the purpose of residential occupation. 6. The Landlord’s spouse also testified that the Tenants are not up to date on rent and are always behind which is causing the Landlord financial difficulty. 7. It was the Tenants position that the Landlord want the rental unit empty in order to sell the house. The Landlord has previously attempted to sell the rental unit however the buyer had regret due to something that the Tenant told the buyer. The Tenant did not offer any documentary evidence as to the Landlord’s attempt to sell the rental unit. 8. The Tenants also testified that the Landlord has multiple rental units and do not require this property in good faith. 9. The Tenant testified that the Landlords have previously indicated that they were in financial difficulty and were going to sell the house. The Landlord disputed this allegation maintaining that they would be moving from their current resident which they rent due to financial difficulties. Analysis 10. The evidentiary burden rests with the individual wishing to occupy the unit to establish on a balance of probabilities that they will move into the rental unit for at least 1 year for the purpose of residential occupation. 11. In the leading case law involving a Landlords’ 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…” 12. Thus, the Landlords must establish that they genuinely intend to move into the unit. The Court also held in Salter v Beljinac that the Landlords’’ motives are “largely irrelevant’. 13. In Fava v. Harrison, 2014 ONSC 3352 (CanLII) the Court commented: Order Page 2 of 4  File Number: LTB-L-019749-23 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 2023 ONLTB 68153 (CanLII) draw inferences as to whether the landlord desires, in good faith, to occupy the property. 14. I find that the Landlords gave the N12 in good faith and genuinely intends to move into the rental unit and live there for at least one year once its vacated. While the Landlord’s motives are largely irrelevant, I find that the Landlord intends to move into the unit because the Landlord’s financial difficulties which would decrease if they vacated their current rented premises and move int o their own property. I find that the Tenant submissions on the Landlord’s plan to sell the house unsubstantiated. I also accept that the Landlord financial difficulties are likely caused, in part, by the Tenants’ failure to consistently pay their rent on time. Daily compensation, NSF charges, rent deposit 15. The Tenants were required to pay the Landlord $12,587.57 in daily compensation for use and occupation of the rental unit for the period from April 15, 2023 to October 3, 2023. All rent payments made by the Tenants since April 15, 2023, must be subtracted from this amount. 16. Based on the Monthly rent, the daily compensation is $73.18. This amount is calculated as follows: $2,226.00 x 12, divided by 365 days. 17. There is no last month's rent deposit. Relief from eviction 18. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until January 14, 2024 pursuant to subsection 83(1)(b) of the Act. 19. The Tenants requested 4-6 months to find a new place to live. I find it would be unfair to grant such a lengthy delay because the Landlord in good faith requires the rental unit, a 4- 6 month delay would prejudice the Landlord in retaining possession of the rental unit. In addition, the Tenants should be able to find a suitable place to rent in 2-3 months. I do however find that a delay until January 14, 2024 is fair in the circumstances as it will provide the Tenants with a reasonable amount of time arrange their affairs and move. It is ordered that: Order Page 3 of 4  File Number: LTB-L-019749-23 1. The tenancy between the Landlord and the Tenants is terminated. The Tenants must move out of the rental unit on or before January 14, 2024. 2. If the unit is not vacated on or before January 14, 2024, then starting January 15, 2024, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction 2023 ONLTB 68153 (CanLII) may be enforced. 3. Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the Landlord on or after January 15, 2024. 4. The Tenants shall pay to the Landlord $12,587.57, which represents compensation for the use of the unit from April 15, 2023 to October 3, 2023. All rent payments made by the Tenants since April 15, 2023, must be subtracted from this amount. 5. The Tenants shall also pay the Landlord compensation of $73.18 per day for the use of the unit starting October 4, 2023 until the date the Tenants move out of the unit. 6. The total amount the Tenants owe the Landlord is $12,587.57. 7. If the Tenants do not pay the Landlord the full amount owing on or before January 14, 2024, the Tenants will start to owe interest. This will be simple interest calculated from January 15, 2024 at 7.00% annually on the balance outstanding. October 26, 2023 Date Issued Camille Clyne Member, Landlord and Tenant Board 15 Grosvenor Street, Ground Floor, Toronto ON M7A 2G6 If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. In accordance with section 81 of the Act, the part of this order relating to the eviction of the Tenants expires on July 15, 2024 if the order has not been filed on or before this date with the Court Enforcement Office (Sheriff) that has territorial jurisdiction where the rental unit is located. Order Page 4 of 4