LTB Order LTB-L-034208-22

2023 ONLTB 34189 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: C. v P., 2023 ONLTB 34189 Date: 2023-05-04 File Number: LTB-L-034208-22 In the matter of: 5, 477 WESLEMKOON LAKE ROAD GILMOUR ON K0W 1W0 Between: P.C. Landlords Robert C. And B.P. Tenants Natalie P. P.C. and Robert C. (the 'Landlords') applied for an order to terminate the tenancy and evict B.P. and Natalie P. (the 'Tenants') because: • the Landlords in good faith requires possession of the rental unit for the purpose of residential occupation for at least one year. The Landlords also claimed compensation for each day the Tenants remained in the unit after the termination date. This application was heard by videoconference on February 22, 2023 at 9:33 a.m. The Landlord Robert C., the Landlord’s representative Dara Saunders and the Tenants B.P. and Natalie P. attended the hearing. The Landlord’s witness Kyra Vonk also attended the hearing. Determinations: 1. As explained below, the Landlords have proven on a balance of probabilities the grounds for termination of the tenancy. Therefore, the tenancy is terminated as of May 31, 2023. 2. The Tenants were in possession of the rental unit on the date the application was filed. Order Page 1 of 5  File Number: LTB-L-034208-22 N12 Notice of Termination 3. On May 20, 2022, the Landlords gave the Tenants an N12 notice of termination with the termination date of July 31, 2022. The Landlords claim that they require vacant possession 2023 ONLTB 34189 (CanLII) of the rental unit for the purpose of residential occupation by the Landlord’s daughter Kyra Vonk for a period of at least one year. 4. Pursuant to section 48 of the Residential Tenancies Act, 2006 (the ‘Act’): (1) 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, (c) a child or parent of the landlord or the landlord’s spouse (2) The date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term. 5. In this case, the N12 notice gives the Tenants over 60 days’ notice and the termination date is the day a period of the tenancy ends. Good Faith 6. I find that the Landlords in good faith requires possession of the rental unit for the purpose residential occupation of their daughter, Kyra Vonk, for a period of at least one year. 7. In Salter v. Beljinac, 2001, 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…” 8. 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’. 9. The Landlord, Mr. C., testified that this unit is a two-bedroom, one bathroom unit on the second floor of a building containing 5-units. The Landlords live on the first floor and the other units are all currently occupied by Tenants. Their 18-year-old daughter, Kyra Vonk, requires this unit (unit #5) for a period of at least 12 months. The Landlord further testified that this unit is suitable for their daughter as she is undergoing surgery and will require care from her parents during her recover. Order Page 2 of 5  File Number: LTB-L-034208-22 10. Ms. Vonk, the Landlords daughter, testified as a witness, that she is undergoing back surgery on February 28, 2023 and corroborated the Landlord’s testimony that she requires the unit for a period of at least one year to live in while she recovers. She further testified that she is currently residing in the living room/dining room area on the 1st floor with her parents and that this living arrangement is not sustainable during her recovery 2023 ONLTB 34189 (CanLII) from a serious surgery. Ms. Vonk submitted a signed copy of a declaration into evidence supporting her testimony. 11. The Tenants testified that this unit is located on the second floor and in poor condition and therefore this unit is not suitable for a person recovering from surgery and that the real intent of the Landlords is to evict the Tenants in bad faith and rent the unit as an income property via Air BnB (short term rental unit). The Tenants submitted pictures of unit showing minor damage to the walls and ceiling into evidence and screenshots of the Landlord listing other units in the building on AirBnB in the past. 12. The Landlords did not dispute they once listed a unit in the building as a short-term rental on Facebook; however, they acknowledged they never actually rented a unit out in that manner, but for one night, and it was a one-time attempt by their daughter-in-law and that this has nothing to do with the fact they require the unit for their daughter to recover from back surgery. 13. The Landlords testified the photographs proved the repairs are minor and mainly drywall patches and would take a short period of time to complete, if at all. 14. Based on all of the evidence submitted by the Landlords and Tenants, I find that the Landlord has proved that it is more likely than not their daughter requires the rental unit for the purposes of residential occupation for a period of at least one year. Compensation 15. Section 49.1 of the Act states that, “a landlord shall compensate a tenant in the amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if the landlord gives the tenant a notice of termination of the tenancy under section 49”. 16. Section 55.1 of the Act requires that compensation under section 49.1 be paid to the tenant no later than on the termination date specified in the notice of termination. In the present case, the termination date in the N12 Notice of Termination is July 31, 2022. 17. It is undisputed the Landlords have compensated the Tenants $700.00, an amount equal to one month's rent by July 31, 2022 by way of waiving rent for July 2022. 18. There is no last month's rent deposit. Order Page 3 of 5  File Number: LTB-L-034208-22 Relief from Eviction 19. The Landlords testified they required the unit immediately for their daughter use during her recovery. 20. The Tenants testified they work in Bancroft Ontario and are actively looking for a new 2023 ONLTB 34189 (CanLII) place in the area; however, the vacancy rate is low and finding a new unit has been difficult. They have submitted approximately 50 applications and have inquired with Hastings County Housing and have yet to secure a new rental unit. The Tenants requested the eviction be delayed for up to 3 months to provide additional time to complete a housing search. 21. 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 May 31, 2023 pursuant to subsection 83(1)(b) of the Act. Ms. Vonk currently has temporary accommodation and can be provided care, although less than ideal, is satisfactory for a short time and this provides the Tenants with additional time to complete a housing search in a difficult rental market. It is ordered that: 1. The tenancy between the Landlords and the Tenants is terminated. The Tenants must move out of the rental unit on or before May 31, 2023. 2. If the unit is not vacated on or before May 31, 2023, then starting June 1, 2023, the Landlords may file this order with the Court Enforcement Office (Sheriff) so that the eviction 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 Landlords on or after June 1, 2023. 4. The Tenants shall also pay the Landlord compensation of $23.01 per day for the use of the unit starting May 4, 2023 until the date the Tenant moves out of the unit. May 4, 2023 ____________________________ Date Issued Greg Witt Member, Landlord and Tenant Board Order Page 4 of 5  File Number: LTB-L-034208-22 15 Grosvenor Street, Ground Floor, Toronto ON M7A 2G6 2023 ONLTB 34189 (CanLII) 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 November 30, 2023 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 5 of 5