LTB Order LTB-L-060907-23

Order under Section 77(8) Residential Tenancies Act, 2006 Citation: Pam Gardens Non-Profit Housing Inc. v C., 2023 ONLTB 70048 2023 ONLTB 70048 (CanLII) Date: 2023-10-25 File Number: LTB-L-060907-23-SA In the matter of: 58, 711 Pond Mills Road London ON N5Z4Y9 Between: Pam Gardens Non-Profit Housing Inc. Landlord And W.C. Tenant Pam Gardens Non-Profit Housing Inc. (the 'Landlord') applied for an order to terminate the tenancy and evict W.C. (the 'Tenant') because the Tenant failed to meet a condition of Order LTB-L-036661-23 issued on July 23, 2023 in that she failed to pay $847.00 towards the arears on or before July 17, 2023. The Landlord's application was resolved by order LTB-L-060907-23-EX, issued on August 17, 2023. This order was issued without a hearing being held. The Tenant filed a motion to set aside order LTB-L-060907-23-EX on August 27, 2023. The motion was heard by videoconference on October 12, 2023 at 1:00 pm. The Landlord Representative Thomas Schoenleber and the Tenant attended the hearing. Determinations: 1. After considering all of the circumstances, I find that it would be unfair to set aside order LTB-L-060907-23. Tenant testimony and evidence 2. The Tenant testified that she missed the July 17, 2023, arrears payment because she was out of province to bury her husband. She also testified that she had tried to inform the Landlord prior but the Landlord failed to acknowledge or accept her explanation. 3. On cross examination when asked if she had any documentation or correspondence to support her submissions such as a death certificate or airline ticket, the only response she could give was that she was unaware of the hearing before me and therefore was not prepared to provide any such evidence. Order Page 1 of 4  File Number: LTB-L-060907-23-SA Landlord Testimony and evidence 4. It was the Landlord Representative submission that the Tenant had not only failed to make $847.00 arrears payment by July 17, 2023, but missed additional payments since and now owes an additional $2,596.64. This was supported by a ledger entered in evidence. 2023 ONLTB 70048 (CanLII) More specifically, the Tenant had yet to pay October 2023 rent when it was due on or before October 1, 2023. 5. It was also his submission that this was the second time that the Tenant had breached a condition of a previous order and was already granted a set aside. Accordingly, it was his submission that to grant another set aside or any relief would only prejudice the Landlord. 6. In response the Tenant again reiterated that she had recently lost her husband, and that she had made efforts to inform the Landlord that the July 2023 payment would be late and that if she had known prior to hearing, she would have provided supporting evidence. She also submitted that she would need at least 30 days to find a new rental property. Analysis 6. The Landlord filed their application and the Board issued the order to terminate the tenancy and evict the Tenant pursuant to sections 78(1) of the Residential Tenancies Act, 2006 (the “Act”) which states: 78 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied: 1. The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant. 2. A settlement agreed to under section 194 or order made with respect to the previous application, i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph i. 3. The tenant has not met one or more of the conditions described in subparagraph 2 i 7. The Board issued LTB-L-060907-23-EX pursuant to section 78(6) which states: (6) If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant. 8. The Tenant filed their motion to set aside LTB-L-060907-23-EX pursuant to Section 78(9) of the Act which states: Order Page 2 of 4  File Number: LTB-L-060907-23-SA 78(9)The respondent may make a motion to the Board, on notice to the applicant, to have an order under subsection (6), and any order made under subsection (7) or (7.1), set aside within 10 days after the order made under subsection (6) is issued. 9. Section 78(11) of the Act states: 2023 ONLTB 70048 (CanLII) (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing, (a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied; (b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6); or (c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order. 10. Having considered the circumstances before me, and for the reasons that follow, I am satisfied that it would be unfair to grant the set aside. 11. First, the Tenant offered no evidence to support her claims of a death in the family, nor that she attempted to notify the Landlord. Secondly, the Tenant didn’t dispute that she still hasn’t made the payment due on July 17, 2023 and has since missed he October 2023 rent payment, constituting an additional breach of Order LTB-L-036661-23. Finally, I don’t accept her explanations for not being prepared for the hearing. As I stated at the time, this was her motion, and not the first time before the Board. Accordingly, for these reasons I agree with the Landlord Representative, to grant the set-aside would be unfair to the Landlord. 12. That said I am satisfied that a relief of 30 days is warranted to give the Tenant time to find a new rental unit. It is ordered that: 1. The motion to set aside Order LTB-L-060907-23-EX, issued on August 17, 2023, is denied. 2. The stay of Order LTB-L-060907-23-EX, is lifted effective November 30, 2023. October 25, 2023 Date Issued Kelly Delaney Member, Landlord and Tenant Board 15 Grosvenor Street, Ground Floor Toronto ON M7A 2G6 Order Page 3 of 4  File Number: LTB-L-060907-23-SA If you have any questions about this order, call 416-645-8080 or toll free at 1-888-332-3234. 2023 ONLTB 70048 (CanLII) Order Page 4 of 4