LTB Order LTB-L-070440-22

2023 ONLTB 40412 (CanLII) Order under Section 69 Residential Tenancies Act, 2006 Citation: K.S. v E.W., 2023 ONLTB 40412 Date: 2023-06-02 File Number: LTB-L-070440-22 In the matter of: 661 OLIVE AVE OSHAWA ON L1H2R9 Between: K.S. Landlord And E.W. Tenant K.S. (the 'Landlord') applied for an order to terminate the tenancy and evict E. W. (the 'Tenant') because the Tenant did not pay the rent that the Tenant owes. This application was heard by videoconference on May 9, 2023. The Landlord attended the hearing. The Tenant attended the hearing. PRELIMINARY MATTERS 1. During the hearing the Landlord made a request to amend the application to include outstanding rent for October 2022 valued at $900.00. The Tenant consented to this request. The Landlord’s request was granted and the application was amended accordingly. 2. At the end of the hearing I made an order to the parties to file with the Board, as posthearing submissions, documentary evidence confirming payments that had been received and sent by the parties. Documentation was received from the parties which have been considered in the reasons for this decisions. Determinations: Order Page: 1 of 4  File Number: LTB-L-070440-22 1. 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. 2. As of the hearing date, the Tenant was still in possession of the rental unit. 2023 ONLTB 40412 (CanLII) 3. The lawful rent is $2,400.00. It is due on the 1st day of each month. 4. Based on the Monthly rent, the daily rent/compensation is $78.90. This amount is calculated as follows: $2,400.00 x 12, divided by 365 days. 5. The Tenant has paid $16,600.00 to the Landlord since the application was filed. 6. The rent arrears owing to May 31, 2023 are $200.00. 7. The Landlord incurred costs of $186.00 for filing the application and is entitled to reimbursement of those costs. However, as part of their post-hearing submissions, the Landlord waived their entitlement to this cost and, as such, has not been awarded in this order. 8. The Landlord collected a rent deposit of $2,400.00 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. 9. Interest on the rent deposit, in the amount of $31.23 is owing to the Tenant for the period from November 1, 2022 to May 9, 2023. Section 83 considerations 10. The Tenant testified that although she did fall into arrears at the time she was served with the N4 Notice, she had since paid all arrears of rent through to the date of the hearing and, in her view, was in good standing with the Landlord to preserve the tenancy. 11. The Landlord reviewed the record of payments and rent that became due with the Board during the hearing. This process revealed that $16, 400.00 in payments were made by the Tenant since the application was filed leaving an outstanding arrears balance of $400.00 which, when combined with the filing fee, resulted in a claim of $586.00. Post-hearing submissions 12. The Landlord did not file financial documents confirming payments received. However, in the body of an email sent to the Board, the Landlord wrote the following: “Hi sir, This is regarding our hearing yesterday. I have been told to send you the documents supporting the rent transfer. I went to the statements and realized the mistake was mine, and I did receive the 900 dollars as rent for October 2022. This is not my intention to lie since I mentioned in the other N8 I sent the tenant that I Order Page: 2 of 4  File Number: LTB-L-070440-22 received the amount. It is purely a mistake from my side because of the multiple payments the tenant is sending me. Please accept my apology; I do not want to ask for the filing fee for this case. I have attached the N8 for File no: LTBL- 019565-23. 2023 ONLTB 40412 (CanLII) Thanks K.S.” 13. The Tenant filed with the Board a series of bank statements from different financial institutions, as well as screen shots of e-transfer transactions sent from a mobile application attached to a her financial institution which clearly identified payments made to the Landlord totalling $16,600.00 made between December 14, 2022 and May 4, 2023. 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 and whether the Landlord attempted to negotiate a repayment agreement with the Tenant and find that it would not be unfair to grant relief from eviction subject to the conditions set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act. 15. I accept the Landlord’s evidence that a rent payment was received for October 2022 valued at $900.00, and her request to withdraw her claim for the $186.00 filing fee. I also accept the Tenant’s documentary evidence confirming that payments of $16, 600.00 were made to the Landlord leaving an arrears balance of $200.00. I am satisfied that the tenancy is financially viable and after considering the prejudice to both parties find that preserving the tenancy, subject to the following conditions, is fair and appropriate. It is ordered that: 1. The Tenant shall pay to the Landlord $200.00, which represents the arrears of rent outstanding for the period ending May 31, 2023. 2. The Landlord’s application for eviction of the Tenant is denied on the condition that: (a) The Tenant shall make the following payment to the Landlord in respect of the monies owing under paragraph 1 of this order: 1. On or before June 15, 2023, the Tenant shall pay the Landlord $200.00; (b) The Tenant shall pay the lawful monthly rent for June 2023 on or before January 7, 2023, if not already paid; 3. If the Tenant fails to make any of the payments in accordance with paragraph 2, and by the dates required, then: (a) The Landlord may apply, without notice to the Tenant, under section 78 of the Residential Tenancies Act, 2006 (the ‘Act’) for an order terminating the Order Page: 3 of 4  File Number: LTB-L-070440-22 tenancy and evicting the Tenant, and for the payment of any new arrears of rent and NSF charges not already ordered under paragraph 1 of this order. The Landlord must make the application within 30 days of a breach of a condition set out in paragraph 2 of this order. 2023 ONLTB 40412 (CanLII) (b) The balance owing under paragraph 1 of this order shall become payable on the day following the date of default. The monies shall bear interest at the post-judgement interest rate determined under subsection 207(7) of the Act. June 2, 2023 ____________________________ Date Issued Emile Ramlochan 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. Order Page: 4 of 4