LTB Order LTB-L-067318-22

Order under Section 69 Residential Tenancies Act, 2006 Citation: G. v M., 2023 ONLTB 56442 2023 ONLTB 56442 (CanLII) Date: 2023-08-17 File Number: LTB-L-067318-22 In the matter of: 8 Bethune Avenue Welland ON L3B0H5 Between: B.G. L. A. J. M. A. T. P. Tenants B.G. (the 'L.') applied for an order to terminate the tenancy A. evict J. M. A. T. P. (the 'Tenants') because the Tenants did not pay the rent that the Tenants owe. This application was heard by videoconference on July 6, 2023. The L., their representative Samila Waslat, A. the Tenant J. M. attended the hearing. Determinations: 1. The L. served the Tenants with a valid Notice to End Tenancy Early for Nonpayment of Rent (N4 Notice) with a termination date of February 5, 2021. 2. The L. alleges that the Tenants vacated the rental unit on January 19, 2022. The Tenant J. M. ‘J.M’ alleges that the Tenants vacated nearly a year earlier on February 1, 2021 A. prior to the termination date in the N4 notice. 3. The L. testified that he attended the rental unit on January 14, 2022 A. found a TV, a BBQ, clothing A. other items he described as “junk” still in the rental unit. He also said there was food in the refrigerator. 4. The L. testified that he also attended the rental property sometime in 2021 after serving the N4 notice, but before 2022, but could not remember exactly when. The L.’s evidence is that at that time the Tenants were still living in the rental unit. 5. The L. testified that he did not receive any notice from the Tenants that they were vacating, nor did he receive the keys back. 6. The L. introduced into evidence documentation from Welland Hydro that shows there was an active hydro account for the rental unit until February 15, 2022. Order Page 1 of 3 7. Kurt Anderson (‘K.A’) is best friends with the Tenant J.M. K.A testified that on February 1, 2021 he helped the Tenants move out of the rental unit. He testified that everything of File Number: LTB-L-067318-22 2023 ONLTB 56442 (CanLII) value was removed from the rental unit, but a few toys A. a small bed were left behind. He also testified that J.M left the keys on the counter. 8. J.M testified that the Tenants vacated the rental unit on February 1, 2021. He introduced into evidence a copy of a lease the Tenants signed for a new rental unit with a commencement date of February 1, 2021. J.M also introduced evidence about a hydro account he opened for this new unit on January 31, 2021. 9. J.M testified that he sent the L. a letter indicating that the Tenants had vacated A. that the keys were left in the rental unit. However, J.M is no longer in possession of a copy of the letter. 10. J.M testified that he operates multiple businesses, A. it is possible he was still paying for hydro at the rental unit without realizing. 11. I find on a balance of probabilities that the Tenants vacated the rental unit on February 1, 2021. I make that finding for the following reasons. 12. First, I found both the Tenant J.M A. K.A to be credible witnesses as their testimony was offered in a forthright manner A. withstood cross examination well. 13. The L. submitted that K.A was uncredible because in an affidavit he wrote “..we had to make multiple trips to ensure that everything was taken A. nothing was left behind..” A. “J. A. I walked through the house thoroughly on our last trip to ensure that all belongings were accounted for…” but then at the hearing he mentioned that there were some items left behind. I do not find this to be an inconsistency such to render K.A uncredible. The Tenants took with them everything of value that they intended to take A. K.A’s testimony clarified that some abandoned items were left behind. 14. Second, I had a reliability concern about the L.’s evidence that he visited the rental unit sometime after the N4 notice was served but sometime prior to the January 14, 2022. This is because the L. was unable to say when exactly that visit occurred or provide any other specifics or corroborating evidence. 15. Third, while there were possessions still in the rental unit in January 2022, I accept the Tenant’s testimony that those were abandoned. It also sounds like there were only a few possessions left in unit, A. not a fully furnished home that someone might be living in. The L. also did not submit any photographs of the food they claimed was still in the fridge A. as such I’m not satisfied that there were fresh groceries or other such items that support that someone was living in the unit. 16. Fourth, while I have considered that there was still an active hydro account for the unit, I accept the Tenant J.M’s explanation that he may have been paying for the account with Order Page 2 of 3  automatic payments without realizing. Additionally, when I weigh the active hydro account with the other evidence I have also considered, the active hydro account alone does not satisfy me that the Tenants maintained possession of the rental unit until 2022. 17. As the Tenants vacated the rental unit on February 1, 2021 they were not in possession of when the application was filed on April 6, 2021. An L1 application for eviction A. nonpayment of rent must be filed when the Tenants are still in possession. As such, the 2023 ONLTB 56442 (CanLII) L.’s application is dismissed. File Number: LTB-L-067318-22 It is ordered that: 1. The L.’s application is dismissed. August 17, 2023 ____________________________ Date Issued Amanda Kovats Member, L. A. Tenants 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. Order Page 3 of 3