LTB Order LTB-L-059781-23

Tribunals Ontario Tribunaux décisionnels Ontario Landlord A. T. B. C. de la L. I. O. U. S. 78(11) R. T. Act, 2006 2023 O. 68261 (CanLII) Citation: M. v Silveira, 2023 O. 68261 Date: 2023-10-16 File Number: LTB-L-059781-23-SA In the matter of: 2401 IRISH MOSS RD LONDON ON N6MOA5 I hereby certify this is a Between: S. M. T. C. of an O. P. M. D. O. 16, 2023 A. Landlord A. T. B. Mariana SilveiraTenant S. M. A. P. M. (the 'Landlords') applied for an O. to terminate the tenancy A. evict Mariana Silveira (the 'T.') A. for an O. to have the T. pay the rent they owe because the T. failed to meet a condition specified in the O. issued by the B. on June 21 , 2023 with respect to application LTB-L-006325-23. The Landlords' application was resolved by O. LTB-L-059781-23, issued on August 18, 2023. The T. filed a motion to set aside O. LTB-L-059781-23 on August 22, 2023. The motion was heard by videoconference on October 5, 2023. The Landlord S. M. A. the Landlords' Legal Representative Danial Yousefian A. the T. Mariana Silveira A. the T.'s Legal Representative Francisco Gomez attended the hearing. Determinations: 1. This motion is before the B. because the Landlords obtained the eviction O. without notice to the T. U. s.78 of the R. T. Act, 2006 ("the Act") based upon an allegation that the T. breached the original O.. The T. does not want to be evicted A. asks that the eviction O. be set aside. In the alternative, the T. sought a delay in the lifting of the stay of O. LTB-L-059781-23. O. Page 1 of 4  File Number: LTB-L-059781-23-SA 2. There is no dispute the T. breached the mediated agreement reached on June 21, 2023. The T. did not pay $2,300.00 towards the rent arrears on or before July 20, 2023, the date it was due. 3. The only issues before me are: a) whether or not, pursuant to s.78(11 of the Act having regard to all of the 2023 O. 68261 (CanLII) circumstances, it would not be unfair to set aside O. LTB-L-059781-23, issued on August 18, 2023. b) if the answer to a) is no; when the stay imposed on the O. LTB-L-059781-23 should be lifted - immediately or on a future date. 4. Pursuant to subsection 78(11)(b) of the Act, the B. may make an O. setting aside the original O. if the B. is satisfied that having regard to all of the circumstances, that it would not be unfair to set aside the O.. 5. Pursuant to this provision, I have the discretion to grant relief to the T. by setting aside the original O. notwithstanding that the T. has breached conditions required in it. T.'s Position 6. The T.'s evidence was she is limited on the amount she can pay the Landlords each month. She cited other monthly expenses that she has to pay. She also stated that at the time she agreed to the mediated settlement of LTB-L-006325-23, she was not aware of her banking limits which prevented her from sending large payments to the Landlords at one time. 7. It was the T.'s submission that she could not afford the payment agreement contained in the mediated settlement A. while she agreed to it, she admits it was far too optimistic given her finances. She requested a new conditional O. that would require a smaller payment towards the rent arrears owing. The T. suggested a payment plan that would require almost two years to complete given the rent arrears owing are $35,299.00. 8. The T. admitted she has withheld rent while she awaited the outcome of this hearing. She did make two payments to the Landlord on September 20, 2023. 9. The T. lives with her three children A. has two jobs. She has lived in the rental unit for four years. Her family is healthy A. there are no disability issues in the household. 10. The T. stated she would need 60-90 days to find somewhere else to live. She also stated that as of October 5, 2023, she had not yet looked for anywhere else. Landlords' Position 11. The Landlords were opposed the T.'s position requesting the motion be denied A. the stay lifted within 10 days of this O.. O. Page 2 of 4  File Number: LTB-L-059781-23-SA 12. The Landlords submitted the accumulated rent arrears have caused significant financial stress to them. They have gone without much needed revenue to service their own mortgages A. expenses. 13. The Landlords were also opposed to a revised payment plan given the length of time the T. would need to pay the rent arrears. The Landlords pointed out the T. agreed to 2023 O. 68261 (CanLII) the previous mediated agreement A. could not follow through on the required payments. This was after the Landlords had already waived amounts above the B.'s monetary limit of $35,000.00. Discretionary Relief U. s.78(11 )(b) 14. I have considered all of the submissions A. evidence presented. S. 78(11 )(b) of the Act provides discretion to set aside an O. where to do so would not be unfair. 15. I am not satisfied that setting aside the O. in this case would not be unfair to the Landlords having regard to all the circumstances. While the T. provided an explanation for breaching the mediated agreement, I do not find it was a reasonable one. She agreed to make payments on specific dates knowing her financial circumstances could not support these payments. Nothing changed in her circumstances causing her to breach the mediated agreement. I find the breach had little to do with the T.'s banking limits since the T. herself admitted the agreement was not one she simply could not afford. 16.At the time of the mediated agreement, the rent arrears were beyond the B.'s monetary jurisdiction. As such they were capped at $35,000.00. The rent arrears owing have not decreased since the mediated agreement was entered into. As of October 5, 2023, the rent arrears are $35,299.00. Additionally, the T. admitted to withholding rent payments while she awaited the outcome of her set aside motion. Withholding rent payments is never a hallmark indicator of a health tenancy. 17. Based on the rent arrears continuing to be at the B.'s monetary limit, the T.'s need for a 23-month conditional O. A. the T.'s decision to withhold rent payments, I do not find this tenancy is sustainable. I am also not convinced the T. would abide by a new conditional O. given her choice to withhold rent payments while she waited for the outcome of her motion. 18. Lastly, I find it would be unfair A. unduly prejudicial to the Landlords to set aside O. LTB-L-059781-23 particularly when the rent arrears are already at the B.'s limit A. the T. has chosen to withhold rent payments. Discretionary Relief U. s. 78(11 19. The T. requested a 60-to-90-day delay in the lifting of the stay of O. LTB- L059781-23. The Landlord submitted a short delay of 10 days would be fair in the circumstances. O. Page 3 of 4  File Number: LTB-L-059781-23-SA 20. I note the T.'s admission she has taken no steps to secure alternative housing since the process before the B. started. As such, I do not find her request to be reasonable. 21. In consideration of the three children that live in the rental unit, the stay will be lifted on October 31 , 2023 instead of immediately. 2023 O. 68261 (CanLII) It is ordered that: 1. The T.'s motion to set aside O. LTB-L-059781-23, issued on August 18, 2023, is denied. 2. O. LTB-L-059781-23, issued on August 18, 2023, is confirmed A. remains unchanged. 3. The stay of O. LTB-L-059781-23 is lifted on October 31, 2023. October 16, 2023 Date Issued John Cashmore Member, Landlord A. T. B. 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 4 of 4