LTB Order LTB-L-020661-22

2023 ONLTB 38094 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: K. v N., 2023 ONLTB 38094 Date: 2023-05- 12 File Number: LTB-L- 020661-22 In the matter of: A, 115 DUNN AVENUE TORONTO ON M6K2R8 Between: A.K.A.L.H.K. L. A. C. N. Tenant A. K. A. Liisa H. K. (the 'L.') applied for an order to terminate the tenancy A. evict C. N. (the 'Tenant') because the L. in good faith require possession of the rental unit for the purpose of their daughter’s residential occupation for at least one year. This application was heard by videoconference on January 9, 2023. The L., the Tenant, A. the Tenant’s legal representative, Sandy Azevedo, attended the hearing. Determinations A. Reasons: 1. As explained below, the L. have proven on a balance of probabilities the grounds for termination of the tenancy. 2. The Tenant was in possession of the rental unit on the date the application was filed. 3. On March 29, 2022, the L. gave the Tenant an N12 notice of termination with the termination date of June 30, 2022. The L. claim that they require vacant possession of the rental unit for the purpose of the residential occupation by their daughter, Sydney Evelin K.. 4. The L. filed affidavit sworn by their daughter certifying that she in good faith requires the rental unit for her own personal use for a period of at least one year. Order Page 1 of 4  File Number: LTB-L-020661-22 5. The issue to be determined is whether the L.’ daughter “in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year”, as per subsection 48(1) of the Residential Tenancies Act, 2006 (the ‘Act’). 6. The leading case on the determination of good faith in a landlord’s own use application is 2023 ONLTB 38094 (CanLII) Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 (Div. Ct.). Salter v. Beljinac was decided under a similarly worded section of the previous legislation. The test is whether, on a balance of probabilities, a landlord genuinely wants the rental unit A. intends to occupy, or have their family member occupy, the unit as a residence. The test is not whether a landlord needs the unit or whether a landlord’s desire to possess the rental unit is reasonable. 7. The residential complex contains four rental units that are similar in size. They are all twobedroom units with a single parking spot. Landlord Liisa H. K. (‘LHK’) testified that their daughter is a student at the University of Toronto A. currently lives in their home. Their daughter intends to move into the rental unit as the L.’ home does not have an office or study space for her. 8. The Tenant’s legal representative seems to suggest that what the L. really wanted to do was to increase the rent as they “shopped around” with the other tenants before serving him with the N12 notice of termination. 9. It was undisputed that on January 3, 2022, the L. sent a letter to the tenant in unit 117-B (‘Kazi’) advising that they were looking to move their daughter into the unit A. that Kazi would need to vacate by June 30, 2022. LHK acknowledged that they ultimately chose not to serve Kazi with an N12 notice of termination after Kazi volunteered to pay an increase in rent. 10. The L. then sent a letter on January 22, 2022 to the tenant in unit 117-A (‘Cheryl’) advising Cheryl that she needed to vacate by June 30, 2022 so that their daughter could move into the unit. LHK testified that they also chose not to serve Cheryl with an N12 notice after Cheryl volunteered to pay an increase in rent. 11. LHK testified that as their daughter still needed a unit, they sent the Tenant a letter on February 3, 2022 explaining that they needed his unit for their daughter A. asked that he vacate by June 30, 2022. LHK stated that when they did not hear from the Tenant, they served him with an N12 notice of termination on March 29, 2022. 12. The Tenant testified that the only tenant who did not receive a letter from the L. was the newest tenant who was paying close to market rent. Analysis Order Page 2 of 4  File Number: LTB-L-020661-22 13. I accept the evidence of the L. that their daughter genuinely wants to move into the rental unit A. live there for a period of at least one year. In my view, the fact the L. may have based their choice of rental units, which are similar in size A. features, on the rental price does not establish that the notice was served in bad faith. 2023 ONLTB 38094 (CanLII) 14. Accordingly, I am satisfied that the L. in good faith require possession of the rental unit for the purpose of their daughter’s own residential occupation for a period of at least one year. 15. The L. compensated the Tenant an amount equal to one month's rent by June 30, 2022. 16. The L. collected a rent deposit of $1,400.00 from the Tenant A. this deposit is still being held by the L.. 17. In accordance with subsection 106(10) of the Act, the last month's rent deposit shall be applied to the rent for the last month of the tenancy. Request for relief 18. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Act A. find that it would not be unfair to postpone the eviction until August 31, 2023 pursuant to subsection 83(1)(b) of the Act. 19. The Tenant stated that after he received the notice from the L., he looked for housing but was unable to find housing that was like his current situation in terms of cost, value, location, A. amenities. He indicated that he would need six months to find adequate housing within his community in Toronto given the current rental market. 20. At the time of the hearing, the L. were not opposed to postponing the eviction by six months to provide the Tenant with additional time. This postponement would have provided the L. vacant possession of the rental unit by the end of June 2023. 21. I have weighed the circumstances of the Tenant against the L. A. find that it would be reasonable to postpone the eviction until August 31, 2023. This delay would provide the Tenant with more than three months to secure housing while also allowing the L.’ daughter to move into the rental unit by the start of the next school year. It is ordered that: 1. The tenancy between the L. A. the Tenant is terminated. The Tenant must move out of the rental unit on or before August 31, 2023. 2. If the unit is not vacated on or before August 31, 2023, then starting September 1, 2023, the L. may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced. Order Page 3 of 4  File Number: LTB-L-020661-22 3. Upon receipt of this order, the Court Enforcement Office (Sheriff) is directed to give vacant possession of the unit to the L. on or after September 1, 2023. May 12, 2023 2023 ONLTB 38094 (CanLII) Date Issued Debbie Mosaheb Member, Landlord A. 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 expires on March 1, 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