LTB Order LTB-L-051700-22

2023 ONLTB 19156 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: H. v A., 2023 ONLTB 19156 Date: 2023-02-24 File Number: LTB-L-051700-22 In the matter of: 79 BRECKONWOOD CRES Markham ON L3T5G8 Between: L.H.A.M.K. L. A. C. A. A. J. H. J. Tenants L.H.A.M.K. (the 'L.') applied for an order to terminate the tenancy A. evict C. A. A. J. H. J. (the 'Tenants') because the Tenants did not pay the rent that the Tenants owe. This application was heard by videoconference on February 1, 2023. The Landlord’s Legal Representative, Reyhaneh Lajevardi, A. one of the Tenants, C. A.(CA), attended the hearing. A. H. (AH) attended the hearing on behalf of the L.. CA declined to speak with Tenant Duty Counsel prior to the hearing. Preliminary issues: Adjournment request 1. CA requested an adjournment as her legal representative was not available to participate in the hearing. CA testified that she had received the Notice of Hearing in December, but had not contacted her “family lawyer” until sometime in January. There was no authorization for representation in the Board’s files, A. the Tenants’ chosen representative did not send a representative to request an adjournment on his behalf. CA Order Page: 1 of 5  File Number: LTB-L-051700-22 confirmed that the Tenants had not retained representation on this matter. CA again declined to speak to Tenant Duty Counsel. 2. The Landlord’s Legal Representative argued that the Tenants had been aware of the proceedings for more than a month, A. had been aware that the L. had filed a 2023 ONLTB 19156 (CanLII) previous application with respect to the tenancy. The previous L1 application had been filed on May 3, 2022, A. was scheduled to be heard on January 5, 2023, but had been withdrawn by the L. due to an error on the previous N4. The arrears claimed in the application are above the Board’s monetary jurisdictional limit, A. a delay in the proceedings would be prejudicial to the L.. 3. I denied the request to adjourn, as the Tenants had ample time to seek legal representation, A. again asked CA if she wished to speak to Tenant Duty Counsel. CA declined to speak to Tenant Duty Counsel for a 3 rd time. Rental Period 4. CA claimed that the N4 notice was invalid because the rental period set out in the N4 Notice was not the same as the rental period in the Lease. The Lease set out that the rent was due on the 1st of the month, but the rental period set out in the N4 was from the 5 th of the month to the 4th of the month. CA testified that the L. had been cashing their cheques on the 5th of the month, but she did not know why. 5. AH, is the L.’ son. He testified that in the first month of the tenancy, the Tenants had requested to pay their rent on the 5th of the month, the L. agreed, A. the Tenants gave the L. post-dated cheques which were dated for the 5th of the month. 6. As the Tenants had paid their rent on the 5th of the month, from the outset of the Tenancy, I am satisfied that the rental period is from the 5th of the month to the 4th of the following month, A. therefore the N4 Notice is valid. 7. The hearing proceeded on its merits. Determinations: 1. The L. served the Tenants with a valid Notice to End Tenancy Early for Nonpayment of Rent (N4 Notice). The Tenants did not void the notice by paying the amount of rent arrears owing by the termination date in the N4 Notice or before the date the application was filed. 2. As of the hearing date, the Tenants were still in possession of the rental unit. 3. The lawful rent is $3,500.00. It is due on the 5th day of each month. Order Page: 2 of 5  File Number: LTB-L-051700-22 4. Based on the Monthly rent, the daily rent/compensation is $115.07. This amount is calculated as follows: $3,500.00 x 12, divided by 365 days. 5. The Tenants have not made any payments since the application was filed. 6. The rent arrears owing to February 4, 2023 are $42,000.00. 2023 ONLTB 19156 (CanLII) 7. The L. incurred costs of $186.00 for filing the application A. is entitled to reimbursement of those costs. 8. The Landlord agrees to waive any amount of the Board’s jurisdiction pursuant to section 207 of the Act, specifically, any amount above $35,186.00 ($35,000.00 plus the $186.00 application filing fee). 9. The L. collected a rent deposit of $3,500.00 from the Tenants A. this deposit is still being held by the L.. The rent deposit can only be applied to the last rental period of the tenancy if the tenancy is terminated. 10. Interest on the rent deposit, in the amount of $63.34 is owing to the Tenants for the period from November 5, 2020 to February 1, 2023. 11. CA testified that the Tenants had attempted to pay the L.. The Tenants asked the L. not to cash the rent cheques for February 2022, March 2022 A. April 2022. The Tenants understood that the they had until the end of April, 2022 to pay the rent, because the termination date in the original N4 Notice was at the end of the month, so the Tenants did not have the funds in the account when the L. cashed all three cheques on April 12, 2022, without warning the Tenants. After the L. cashed the cheques, the Tenants no longer trusted the L., so they did not pay any further rent. 12. AH testified that the after the Tenants had asked the L. not to cash the cheques for three consecutive months, he was concerned, A. cashed the cheques, which were returned NSF. The Tenants cheques for May, June A. July were also returned NSF. The August 5, 2022 cheque was returned as the account had been closed. 13. The L. were seeking an order for eviction. Relief from eviction 14. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), {including the impact of COVID-19 on the parties A. whether the L. attempted to negotiate a repayment agreement with the Tenants. The Tenants have a child under the age of ten. CA testified that have a business that was impacted by Covid, A. the 2022 trucker convoy, A. that they have been struggling financially. The L. are elderly, A. rely on the rent to pay the mortgage on the unit. They are currently relying on their children for financial support A. living in their son’s basement. 15. The Tenants have not paid any rent in over a year, A. have not made any efforts to preserve their tenancy, by paying partial rent or attempting to negotiate a payment plan Order Page: 3 of 5  File Number: LTB-L-051700-22 with the L.. I considered the presence of a young child in the unit, as well as the impact of the arrears on the L., A. that the arrears are already in excess of the Board’s monetary jurisdiction, A. find that it would be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act. 2023 ONLTB 19156 (CanLII) It is ordered that: 1. The tenancy between the L. A. the Tenants is terminated unless the Tenants void this order. 2. The Tenants may void this order A. continue the tenancy by paying to the L. or to the LTB in trust: • $45,686.00 if the payment is made on or before March 4, 2023. See Schedule 1 for the calculation of the amount owing. OR • $49,186.00 if the payment is made on or before March 7, 2023. See Schedule 1 for the calculation of the amount owing. 3. The Tenants may also make a motion at the LTB to void this order under section 74(11) of the Act, if the Tenants have paid the order if they pay the amount required under that subsection on or after March 7, 2023 but before the Court Enforcement Office (Sheriff) enforces the eviction. The Tenants may only make this motion once during the tenancy. 4. If the Tenants do not pay the amount required to void this order the Tenants must move out of the rental unit on or before March 7, 2023 5. If the Tenants do not void the order, the Tenants shall pay to the L. $35,186.00. This amount includes rent arrears owing to the date of the hearing up to the Board’s jurisdictional limit A. the cost of filing the application. The rent deposit A. interest the L. owe on the rent deposit are deducted from the amount owing by the Tenants. See Schedule 1 for the calculation of the amount owing. 6. If the Tenants do not pay the L. the full amount owing on or before March 7, 2023, the Tenants will start to owe interest. This will be simple interest calculated from March 8, 2023 at 5.00% annually on the balance outstanding. 7. The L. or the Tenants shall pay to the other any sum of money that is owed as a result of this order. 8. If the unit is not vacated on or before March 7, 2023, then starting March 8, 2023, the L. may file this order with the Court Enforcement Office (Sheriff) so that the eviction may be enforced. 9. 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 March 8, 2023. Order Page: 4 of 5  File Number: LTB-L-051700-22 February 24, 2023 ____________________________ Date Issued Kathleen Wells 2023 ONLTB 19156 (CanLII) 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 September 8, 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. *Note: When the Board directs payment-out, the Canadian Imperial Bank of Commerce will issue a cheque to the appropriate party named in this notice. The cheque will be in the amount directed plus any interest accrued up to the date of the notice Schedule 1 SUMMARY OF CALCULATIONS A. Amount the Tenants must pay to void the eviction order A. continue the tenancy if the payment is made on or before March 4, 2023 Rent Owing To March 4, 2023 $45,500.00 Application Filing Fee $186.00 Total the Tenants must pay to continue the tenancy $45,686.00 B. Amount the Tenants must pay to void the eviction order A. continue the tenancy if the payment is made on or before March 7, 2023 Rent Owing To April 4, 2023 $49,000.00 Application Filing Fee $186.00 Total the Tenants must pay to continue the tenancy $49,186.00 C. Amount the Tenants must pay if the tenancy is terminated Rent Owing To Hearing Date $41,721.96 Application Filing Fee $186.00 Less the amount of the last month's rent deposit - $3,500.00 Less the amount of the interest on the last month's rent deposit - $63.34 Less the amount the Landlord waived over the Board’s monetary - $3,158.62 jurisdiction Total amount owing to the L.: This amount is the $35,186.00 Board’s monetary jurisdiction plus the filing fee Order Page: 5 of 5