LTB Order LTB-L-066631-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: R.F. v H.T., 2023 ONLTB 40714 2023 ONLTB 40714 (CanLII) Date: 2023-06-05 File Number: LTB-L-066631-22 In the matter of: SECOND FLOOR, East Side, 2 SAYWELL AVE NORTH YORK ON M3J0E9 Between: R.F. Landlord And H.T. Tenant R.F. (the 'Landlord') applied for an order to terminate the tenancy and evict H.T. (the 'Tenant') because the Tenant did not pay the rent that the Tenant owes. This is the L1 application. The Landlord also applied for an order to terminate the tenancy and evict the Tenant for the following reasons:  because the Tenant, another occupant of the rental unit or someone the Tenant permitted in the residential complex has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant; and  because the Landlord requires possession of the rental unit for the purpose of residential occupation. This is the L2 application. These applications were heard by videoconference on May 17, 2023. The Landlord and the Tenant attended the hearing. The Landlord was represented by Kimberley Covey. The Tenant was represented Ricardo Colonnese. Also in attendance was the Tenant’s witness, Maclean Nyirenda. Determinations: PRELIMINARY ISSUE A. Service of the Notices of Termination 1. At some point during the hearing, the Tenant raised an issue with the service of the notices of termination and testified that the first time he received the notices was when the Board sent him the notice of hearing package. Order Page: 1 of 7  File Number: LTB-L-066631-22 2. The Tenant indicates that in that package was a certificate of service that indicated that the notices were mailed to the incorrect rental unit which could explain why they were not received by him. 3. The Landlord’s representative who mailed the notices of termination testified that the 2023 ONLTB 40714 (CanLII) notices were sent to the address that was on the letter (which accompanied these notices) and was the correct unit; that the certificate of service contains a clerical error as she had also sent notices of termination to the West side unit as well. 4. The Landlord testified that the tenants at the rental property share a mailbox and that the mail is brought in by any one of the tenants, and left on the common area table for all to review and take their own. 5. Based on the evidence before the Board, I am satisfied the notices of termination were served to the correct rental unit. I say this because while the address at the top identified the west side unit, the certificate of service confirms the mailing address as follows: 6. Further, subsection 191(3) states: (3) A notice or document given by mail shall be deemed to have been given on the fifth day after mailing. 7. I proceeded to hear the applications. L2 APPLICATION 8. The Landlord’s L2 applications are based on two notices of termination: N5 and N12 both of which were served to the Tenant by mail on Septemebr 23, 2022 with a termination date of October 20, 2022 and November 30, 2022. N5 Notice of Termination 9. As the N5 was a first notice, the Tenant had seven days from the date of service to remedy the offending behaviour. This remedy period ran from September 28 – October 5, 2022. 10. The Landlord’s evidence was, the Tenant did not remedy the behaviour within this period as the code to the new keypad was not provided to the Landlord until the week before the hearing. 11. The Landlord testified that the house was bought by her on July 15, 2022. The house was divided into multiple rental units. The basement was where her parents lived. The 1st floor had tenants who shared the bathroom; the second floor consisted of two units with their own bathrooms and the third floor was 1 big space. 12. The Landlord testified that when she took over the house, it came to her attention that the locks had been changed by the Tenant to his unit. When she asked the Tenant for the code to the door, there was no response. Order Page: 2 of 7  File Number: LTB-L-066631-22 13. Since then, she has not been successful in accessing the rental unit without the Tenant. 14. The Landlord confirms that it was only this month that she finally received the code to the Tenant’s unit. 15. The Landlord seeks a termination of the tenancy. 2023 ONLTB 40714 (CanLII) 16. The Tenant does not dispute changing the door lock and confirmed that he provided the former Landlord a copy of the code in January 2022. He testified that he did not provide the new Landlord the code because she never asked him. 17. When he received the notice of hearing package from the Board, he provided the code to the Landlord. 18. Based on the evidence before the Board, I am satisfied the Tenant substantially interfered with the Landlord’s lawful rights, interests and privileges by failing to provide the code to the Landlord. I say this based on the Tenant’s own admission that the code was changed. 19. However, as of the hearing date this issue has been rectified and as such, I do not find it appropriate to terminate the tenancy on this basis. 20. 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 grant relief from eviction pursuant to subsection 83(1)(a) of the Act. N12 Notice of Termination 21. By way of background, this is a month-to-month tenancy. The rent is due on the first of the month in the amount of $950.00. 22. Pursuant to subsection 72(1) of the Act, the Landlord filed a copy of the declaration confirming she requires the rental unit for her own personal use and that she intends to live there with his spouse for a minimum of one year. The Landlord testified that when she took over the property, she lived in a one-bedroom condominium with her boyfriend. As both of them work from home, the space in her current unit is insufficient. 23. The Landlord seeks to move into the rental unit as it will be closer to her parents, give her separate spaces to work and reside in the home since currently she works from her dining room table and she will have a spare room for guests when she takes over the second floor unit. 24. Pursuant to section 48.1, the Landlord’s uncontested evidence was the compensation required under this section was paid to the Tenant by waiving the rent for November 2022. 25. Further, the Landlord confirms that she previously served a N12 to her tenants but that this notice was defective which resulted in the second N12 which forms the basis of this application. 26. The Landlord seeks a termination of the tenancy. 27. The Tenant opposes the Landlord’s assertion that she requires the rental unit for her own personal use. He testified that when the Landlord took over the property and served the N12 notices of termination, two of the units were vacant but the Landlord did not move in there or offer them to him. Order Page: 3 of 7  File Number: LTB-L-066631-22 28. The Tenant confirms he has received the compensation in the form of November’s rent being waived. He also confirms that while his unit has his own bathroom, the unit that was available did not. 29. The Tenant believes that the Landlord wants to rent the unit at a higher price and that is 2023 ONLTB 40714 (CanLII) the motive in her serving the N12. 30. The Tenant seeks that the application be dismissed or in the alternative, that eviction be delayed by four months for him to find another home. He testified he has lived in the rental unit for the past two years and that it would be difficult for him to find another home for the same rent. 31. The Landlord opposes the request for four months but would be agreeable to extend eviction by two months; she submits that the Tenant has been on notice since last year of the Landlord’s intention to move into the rental unit and should have made alternative housing arrangements. 32. On an application like this one the first question for the Board is whether or not the evidence establishes it is more likely than not that the Landlord genuinely intends to move into the rental unit and live there for a period of at least one year. 33. The relevant case law is clear that the test of good faith is genuine intention to occupy the residential unit (Feeney v. Noble (1994), 19, O.R. (3d) (Div. Ct.) (“Feeney”). As confirmed in subsequent decisions (Salter v. Beljinac 2001 CanLII 30231 (ONSC DC) (“Salter”), this legal test remains unchanged under the successor legislation (see Salter, para. 25 and 26). 34. The subsequent case law also confirms that while the good faith of the Landlord remains the test to be applied in this application, I may also draw inferences about the Landlord’s good faith from the Landlord’s conduct and motives (Fava v. Harrison 2014 ONSC 3352 (ONSC DC) (“Fava”). 35. Based on the evidence before the Board I am satisfied that the Landlord does genuinely intend to use the rental unit for residential purposes for a period of a least one year. While the Tenant believes the intention of the Landlord is not genuine, apart from speculation, nothing further was presented in support of their assertions. Absent something more, or some indication that the Landlord’s testimony was not credible, I am not convinced the Landlord is acting in bad faith. 36. If I am wrong in this regard, the Tenant has the remedy of filing a T5 application if the Landlord fails to move into the rental unit within a reasonable time. 37. With respect to the Tenant’s request for relief, as the sole occupant of the rental unit, I find that the delay sought of four months is excessive in length but that given the length of this tenancy, a short delay is warranted. 38. However, since the Landlord did not object to two months, I find to appropriate to delay eviction to July 31, 2023. L1 APPLICATION Order Page: 4 of 7  File Number: LTB-L-066631-22 39. The Landlord served the Tenant with a valid Notice to End Tenancy Early for Non-payment of Rent (N4 Notice). The Tenant 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. 2023 ONLTB 40714 (CanLII) 40. As of the hearing date, the Tenant was still in possession of the rental unit. 41. The lawful rent is $950.00. It is due on the 1st day of each month. 42. Based on the Monthly rent, the daily rent/compensation is $31.23. This amount is calculated as follows: $950.00 x 12, divided by 365 days. 43. The Tenant has paid $6,650.00 to the Landlord since the application was filed. 44. The rent arrears owing to May 31, 2023 are $1,900.00. 45. The Tenant does not dispute the arrears as claimed by the Landlord and submits he will be able to pay the amount in full by June 6, 2023 together with the rent for June 2023. 46. The Landlord did not oppose the Tenant’s request. 47. The Landlord incurred costs of $186.00 for filing the application and is entitled to reimbursement of those costs. 48. The Landlord collected a rent deposit of $950.00 from the Tenant and this deposit is still being held by the Landlord. The rent deposit can only be applied to the last rental period of the tenancy if the tenancy is terminated. 49. Interest on the rent deposit, in the amount of $32.29 is owing to the Tenant for the period from July 1, 2021 to May 17, 2023. 50. Based on my finding on the L2 application, the tenancy is terminated and so there can be no opportunity to void termination by paying the outstanding arrears claimed on the L1 application. 51. 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 July 31, 2023 pursuant to subsection 83(1)(b) of the Act. 52. This order contains all of the reasons for the decision within it. No further reasons shall be issued. 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 31, 2023. 2. If the unit is not vacated on or before July 31, 2023, then starting August 1, 2023, the Landlord 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 Landlord on or after August 1, 2023. Order Page: 5 of 7  File Number: LTB-L-066631-22 4. The Tenant shall pay to the Landlord $684.62. This amount includes rent arrears owing up to the date of the hearing and the cost of filing the application. The rent deposit and interest the Landlord owes on the rent deposit are deducted from the amount owing by the Tenant. See Schedule 1 for the calculation of the amount owing. 2023 ONLTB 40714 (CanLII) 5. The Tenant shall also pay the Landlord compensation of $31.23 per day for the use of the unit starting May 18, 2023 until the date the Tenant moves out of the unit. 6. If the Tenant does not pay the Landlord the full amount owing on or before July 31, 2023, the Tenant will start to owe interest. This will be simple interest calculated from August 1, 2023 at 6.00% annually on the balance outstanding. June 5, 2023 Date Issued Sonia Anwar-Ali 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 expires on February 1, 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: 6 of 7  File Number: LTB-L-066631-22 Schedule 1 SUMMARY OF CALCULATIONS A. Amount the Tenant must pay if the tenancy is terminated 2023 ONLTB 40714 (CanLII) Rent Owing To Hearing Date $9,080.91 Application Filing Fee $186.00 NSF Charges $0.00 Less the amount the Tenant paid to the Landlord since the - $6,650.00 application was filed Less the amount the Tenant paid into the LTB since the - $0.00 application was filed Less the amount of the last month's rent deposit - $950.00 Less the amount of the interest on the last month's rent deposit - $32.29 Less the amount the Landlord owes the Tenant for an - $0.00 {abatement/rebate} Less the amount of the credit that the Tenant is entitled to - $950.00 (compensation) Total amount owing to the Landlord $684.62 Plus daily compensation owing for each day of occupation starting $31.23 May 18, 2023 (per day) Order Page: 7 of 7