LTB Order LTB-L-030666-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: S. v Y., 2023 ONLTB 70147 Date: 2023-10-25 2023 ONLTB 70147 (CanLII) File Number: LTB-L-030666-22 In the matter of: Suite A (second floor), 1152 ALBION RD ETOBICOKE ON M9V1A8 Between: S.S. Landlord And N.Y. Tenant S.S. (the 'Landlord') applied for an order to terminate the tenancy and evict N.Y. (the 'Tenant') because: • the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation for at least one year. This application was heard by videoconference on February 7, 2023. The Landlord, Landlord’s legal representative A. Gill and the Tenant attended the hearing. Determinations: 1. As explained below, the Landlord has proven on a balance of probabilities the grounds for termination of the tenancy. Provided that the Landlord complies with the terms of this order, the tenancy is terminated November 15, 2023. 2. The Tenant was in possession of the rental unit on the date the application was filed. N12 Notice of Termination - Landlord's Own Use 3. On May 3, 2022, the Landlord gave the Tenant an N12 notice of termination by mail. Service of the N12 notice was effective five days later on May 8, 2022. The N12 gave a termination date of July 31, 2022. The Landlord claims that they require vacant possession of the rental unit for the purpose of residential occupation by themselves. Landlord’s evidence 4. The Landlord testified that his is 78 years old and needs a smaller place to live as his current home has become too much to manage. The unit will provide him with less maintenance and upkeep and will benefit him overall, health-wise. He testified that his wife will move with him to the unit and that after they move, they will sell their current home. Order Page 1 of 3  File Number: LTB-L-030666-22 Tenant’s evidence 5. The Tenant disputes that the Landlord served the notice in good faith. He believes that the Landlord seeks to evict him in order to double the rent because there are two other units in the rental complex which pay higher rent and because the Landlord mentioned to him that 2023 ONLTB 70147 (CanLII) he has never raised the rent. The Tenant argued that the Landlord likely cannot handle the number of stairs in the complex and the unit. He testified that his unit is a 3-bedroom unit and he argued that the Landlord should not need such a large unit for he and his wife. He testified that the Landlord filed an application against him in the past regarding pets in the unit. Good faith 6. The issue to be determined by the Board is whether the Landlord has satisfied the “good faith” requirement set out in subsection 48(1) of the Residential Tenancies Act, 2006, (the 'Act') which provides: a landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by, (a) the landlord (b) the landlord’s spouse (c) a child or parent of the landlord or the landlord’s spouse; 7. In Feeney v. Noble, 1994 CanLII 10538 (ON SC), the Court held that the test of good faith is genuine intention to occupy the premises and not the reasonableness of the Landlord’s proposal. This principle was upheld in Salter v. Beljinac 2001 CanLII 40231 (ON SCDC) where the Court held that the “good faith” requirement simply means that the Landlord sincerely intends to occupy the rental unit. The Landlord may also have additional motives for selecting a particular rental unit, but this does not affect the good faith of the Landlord’s notice.” 8. I have no reason to doubt the truthfulness of the Landlord and I accept that the Landlord intends to occupy the unit for at least one year after the Tenant vacates. While the Landlord’s selection of unit may seem unreasonable to the Tenant, Salter v Beljinac upholds that this does not affect the good faith of the notice. Therefore, I find on a balance of probabilities that the Landlord in good faith requires possession of the rental unit for the purpose of their own residential occupation for a period of at least one year. 9. At the hearing the Landlord testified that he attempted to pay the Tenant the compensation in the amount of one month’s rent on May 3, 2022, which was included with the N12 Notice of termination. The Tenant did not accept the payment and sent a text message to the Landlord to this effect. The Landlord is willing to give the Tenant another payment and presented evidence of a post-dated cheque issued for March 1, 2023 endorsed to the Tenant. 10. I find on a balance of probabilities that the Landlord in good faith attempted to pay compensation as required by s 48.1 of the Act before the termination date in the N12 notice, but that the Tenant’s conduct resulted in the funds not being received by the Tenant. Therefore, I find that the Landlord has effectively complied with their obligation to pay Order Page 2 of 3  File Number: LTB-L-030666-22 compensation and that the N12 is valid. However, because the Tenant has not received these funds, the termination of the tenancy will be made conditional on the Landlord paying compensation no later than the termination date in this order. 11. There is no last month's rent deposit. 2023 ONLTB 70147 (CanLII) Relief from eviction 12. 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 November 15, 2023 pursuant to subsection 83(1)(b) of the Act. The Tenant has lived in the unit for 8 years and has established work and social roots in the area. Due to the delay in issuing this order, the Tenant has had the benefit of additional time to make arrangements. 13. The Landlord currently resides in another home which had not been listed for sale as of the hearing date. I find that the prejudice to the Tenant is greater with the tenancy terminating and therefore, I find the additional time granted is reasonable in the circumstance. It is ordered that: 1. As soon as possible, but no later than November 15, 2023, the Landlord shall pay to the Tenant one months’ rent in compensation as required by the Act. 2. On condition that the Landlord complies with paragraph 1 above, the tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before November 15, 2023. 3. If the unit is not vacated on or before November 15, 2023, and if the Landlord has complied with paragraph 1 above, then starting November 16, 2023, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced. 4. 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 November 16, 2023. October 25, 2023 Date Issued Donna Adams 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 Tenant expires on May 16, 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 3 of 3