LTB Order LTB-L-041756-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: L. v G., 2023 ONLTB 28241 Date: 2023-06-21 2023 ONLTB 28241 (CanLII) File Number: LTB-L-041756-22 In the matter of: 2ND FLOOR, 568 ROGERS RD YORK ON M6M1B6 Between: A.L. Landlord JUN 21, 2023 And C.G. Tenant A.L. (the 'Landlord') applied for an order to terminate the tenancy and evict C. G. (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. The Landlord also claimed compensation for each day the Tenant remained in the unit after the termination date. This application was heard by videoconference on March 20, 2023 and adjourned to April 12, 2023. The Landlord’s Legal Representative Christina Nastas, the Landlord, the Tenant’s Legal Representative Naseer Ahmed, and the Tenant attended the hearing. Preliminary Issue: The Tenant’s Legal Representative submitted that the Tenant never received the N12 Notice to End Tenancy (N12). The Landlord’s witness Goretti Domingues testified on March 20, 2023 that she gave the N12 to the Tenant after the Tenant refused to take it from the Landlord. The Tenant’s Legal Representative submitted documents which (although they were unclear) purported to show that the Tenant was at work at the time that the N12 was served and that she therefore did not receive it. I prefer the viva voce evidence of the Landlord’s witness. The Landlord’s Legal Representative submitted that the Tenant was also aware of the N12 as of early July, as she returned mail to the Landlord’s Legal Representative including the cheque issued as compensation under section 48.1 of the Residential Tenancies Act, 2006 (Act). Pursuant to section 191(2) of the Act, even if the Tenant was not served in accordance with the Act: Order Page 1 of 4  File Number: LTB-L-041756-22 A notice or document that is not given in accordance with this section shall be deemed to have been validly given if it is proven that its contents actually came to the attention of the person for whom it was intended within the required time period. I am satisfied that the Tenant was aware of the N12 within the required time period. 2023 ONLTB 28241 (CanLII) Determinations: 1. As explained below, the Landlord has proven on a balance of probabilities the grounds for termination of the tenancy and the claim for compensation in the application. Therefore, the tenancy is terminated effective July 2, 2023. 2. On June 29, 2022, the Landlord served the Tenant an N12 notice of termination with the termination date of August 31, 2022. The Landlord claims that she in good faith requires possession of the rental unit for the purpose of her own residential occupation for a period of at least one year. 3. The Landlord’s Legal Representative hand delivered a letter to the Tenant dated July 21, 2022 which indicated that the Landlord waived the rent for August 2022 to satisfy the compensation requirement under the Act. The Tenant insisted upon paying the August rent. Enclosed with her cheque was a handwritten note to the Landlord which stated, “my tenancy continues and I’m not leaving this house.” 4. The Landlord’s Legal Representative sent the Tenant a letter by XPresspost which was delivered on August 4, 2023 returning the Tenant’s August rent cheque with an explanation. The Tenant returned the envelope to the Landlord’s Legal Representative on August 5, 2023. 5. The Landlord’s Legal Representative mailed a letter to the Tenant dated August 11, 2022 again enclosing the compensation cheque with an explanation of its purpose which was returned. 6. I am satisfied that the Landlord provided compensation to the Tenant in an amount equal to one month's rent by August 31, 2022 but the Tenant refused to accept it 7. The Tenant was required to pay the Landlord $9,190.65 in daily compensation for use and occupation of the rental unit for the period from September 1, 2022 to March 20, 2023. 8. Based on the Monthly rent, the daily compensation is $45.72. This amount is calculated as follows: $1,390.79 x 12, divided by 365 days. 9. There is no last month's rent deposit. Good Faith 10. The N12 was served pursuant to section 48 of the Residential Tenancies Act, 2006 (Act). Section 48(1) requires that, in order to be successful in this application, the Landlord must establish that at the time of the service of the N12 Notice, the Landlord required, in good faith, the unit for residential use. 11. 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 Order Page 2 of 4  File Number: LTB-L-041756-22 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.” 2023 ONLTB 28241 (CanLII) 12. The Landlord testified that she is 70 years of age and works in the flower shop which is located underneath the rental unit. She testified that when she prepares for a large event such as a funeral, she works long hours late into the night, sometimes until between 3:00 and 5:00 a.m. She stated that she finds it difficult to travel to her current residence that late at night (approximately a 20-minute drive). She also testified that her husband has had two heart attacks and they are finding that the house that they live in is becoming too difficult to manage. She stated that her son and his girlfriend reside with them in their residence, and the Landlord’s intention is to move into the rental unit with her husband while her son and his girlfriend will remain in the house. 13. While the Tenant maintained that she had no knowledge of the N12 Notice, in an email to the Landlord she states, “I never agreed to move out or/and never signed any document agreeing to that.” She returned the compensation to the Landlord’s Legal Representative several times without questioning the explanation provided for the compensation. 14. She also alludes to previous notices given by the Landlord (N5s, an N6, N7, N13) as possibly pointing to bad faith, but it was agreed that these did not proceed to hearings. She stated that after she complained to the Landlord that the dryer didn’t work, she was issued the N12 notice, although she agreed that the Landlord fixed the dryer. 15. She also suggested that the rental unit has stairs and would somehow not be suitable for the Landlord and her husband, but as noted above, it is the good faith intention of the Landlord that is to be considered. The Landlord testified that she and her husband have no mobility issues. 16. I therefore find that the Landlord in good faith requires possession of the rental unit for the purpose of residential occupation for at least one year. Relief from eviction 17. 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 be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. 18. The Landlord testified that she works late into the night in her business below the rental unit, her home is a 20-minute drive from the rental unit, and that she is elderly and finds the drive difficult when it is very late. There is no evidence to contradict her assertion that her husband has serious health issues that make it difficult to keep up with maintenance of a house. Order Page 3 of 4  File Number: LTB-L-041756-22 It is ordered that: 1. The tenancy between the Landlord and the Tenant is terminated. The Tenant must move out of the rental unit on or before July 2, 2023. 2023 ONLTB 28241 (CanLII) 2. The Tenant shall pay to the Landlord $9,190.65, less rent paid during this period, which represents compensation for the use of the unit from September 1, 2022 to March 20, 2023, less the rent deposit and interest the Landlord owes on the rent deposit. 3. The Tenant shall also pay the Landlord compensation of $45.72 per day for the use of the unit starting March 21, 2023 until the date the Tenant moves out of the unit. 4. If the Tenant does not pay the Landlord the full amount owing on or before July 2, 2023, the Tenants will start to owe interest. This will be simple interest calculated from July 3, 2023 at 6.00% annually on the balance outstanding. 5. If the unit is not vacated on or before July 2, 2023, then starting July 3, 2023, the Landlord may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced. 6. 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 July 3, 2023. June 21, 2023 Date Issued Margo den Haan 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 January 3, 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