LTB Order LTB-L-082127-22

Order under Section 77(8) Residential Tenancies Act, 2006 Citation: D. v P., 2023 ONLTB 30937 2023 ONLTB 30937 (CanLII) Date: 2023-04-13 File Number: LTB-L-082127-22-SA In the matter of: 20 Richland C. Etobicoke, ON M9C 4C2 Between: K.D. L. T. D. A. F. P. Tenants Lance P. K.D. A. T. D. (the 'Landlord') applied for an order to terminate the tenancy A. evict F. P. A. Lance P. (the 'Tenant') because the Tenant entered into an agreement to terminate the tenancy. The Landlord's application was resolved by order LTB-L-082127-22, issued on February 13, 2023. This order was issued without a hearing being held. The Tenant filed a motion to set aside order LTB-L-082127-22. The motion was heard by videoconference on March 8, 2023. The L., the L.’ Legal Representative Warren Rigby, Kyle D., Ruby Shah, Roslyn Bacon A. David Bacon attended the hearing on behalf of the L.. The Tenant F. P. (‘FP’), the Tenants’ Legal Representative Scott Hedden A. the Tenant’s daughter Ashley P. attended the hearing on behalf of the Tenants. Determinations: 1. The L. A. Tenants both signed an N11 notice of termination to terminate the tenancy as of December 31, 2022. 2. The Tenants filed a motion to set aside order LTB-L-082127-22 on February 16, 2023, alleging that they felt pressured into signing the N11. 3. Further, the Tenants allege that the L. should have served them an N12 notice of termination, as they intended to move their son A. his girlfriend into the unit. The Tenants also allege that due to circumstances beyond their control, they were unable to find a new place to live. Order Page 1 of 3  File Number: LTB-L-082127-22-SA 4. FP testified that the Landlord T. D. (‘TD’) had told her that she had contacted the Landlord A. Tenant Board requesting information regarding the ending of the tenancy. FP testified that the Landlord was told to have her sign an N11 notice of termination. 5. FP alleges that she had signed the N11 under duress, A. later learned that the Landlord 2023 ONLTB 30937 (CanLII) should have served her with an N12 notice as the L. intended to have their son move into the unit. 6. FP further alleges that she attempted to pay the L. rent for January, however the L. refused the payment believing it would be improper to take their rent after they had agreed to end the tenancy. 7. The Tenants were to move to either a house that their daughter had obtained, or a cottage that the family had also come into however, due to a fire A. a flood, the Tenants could not move into either of those options. 8. TD testified that the Tenants have been in the unit for 6 years A. that their relationship had been very good up until the end of December when she had learned that the Tenants did not intend on vacating the unit as agreed. 9. TD testified that the Tenants have been telling her since November of 2021 that they had intended on vacating the unit to move into their daughter’s house. TD testified that the Tenants had showed her pictures of the house, A. that the Tenants had advised her at that time that they would be vacating the unit by summer of 2022. 10. On October 29, 2022, a text message was sent from the L. to the Tenants advising them that their son A. girlfriend intend on living with one another A. that with the Tenants planning on moving, they intend to move into the unit. The text message went on to request a meeting to discuss a move-out date. The Tenants responded that same date, agreeing to a meeting with the L. the week after. 11. On November 7, 2022, TD had contacted the Board A. received her advice regarding ending the tenancy. TD phoned the Tenants, A. a recording of this phone call was entered into evidence. FP stated in that phone call that the Tenants intend on moving by the end of December, or earlier A. that the Landlord’s son’s girlfriend could give her notice for her rental unit. 12. As outlined above, the Tenants were unable to move into either of their prospective properties as a result of a fire A. a flood. The Tenants requested an extension from the L., which was granted until January 27th, 2023. The Tenants did not vacate the unit by that date. Review & Analysis 13. An agreement to terminate is a binding contract. Absent a compelling reason to set the agreement aside, I believe the Board should enforce agreements entered into by L. A. tenants. Compelling reasons to set aside such an agreement would include, but is not limited to, things like duress, fraud or negligent misrepresentation; or mistake of fact or law. Order Page 2 of 3  File Number: LTB-L-082127-22-SA 14. The Tenants allege they signed the N11 agreement under duress. The reason FP states the Tenants were under duress was because TD attended at the unit the same date TD had discussed the N11 with her. 15. On the basis of the evidence before me, I am not satisfied that the Tenants were under 2023 ONLTB 30937 (CanLII) duress when they signed the N11. Having reviewed the phone call recording of FP A. TD discussing the issue, it was clear that there was an understanding between the parties regarding the tenancy that was both comfortable A. amicable. 16. Further, while the Tenants never outlined the issue in their set aside motion, they allege that the L. should have served them an N12 notice of termination, rather than an N11. This is because the L. had told the Tenants that their son A. his girlfriend intend on moving into the unit. 17. While that normally may be the case, in this instance I disagree. The Tenants had been telling the L. since at least November 2021 that they had intended on vacating the unit. There was never any evidence provided showing any mention of the L.’ intention of moving in their son until their text message sent to the Tenants on October 29, 2022. 18. Further, based on the phone call recording, FP had agreed amicably to end the tenancy by the end of December or earlier. This intention was made on the precipice that the Tenants had intended to move out of the unit for some time. 19. Section 77(8)(b) of the Residential Tenancies Act, 2006 (the ‘Act’) states that the order be set aside only if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to do so. Based on the evidence A. submissions before me, I am satisfied that it would be unfair to set aside the order in these circumstances. 20. That said, the Tenants have had issues finding a new unit. The L.’ son A. girlfriend are currently residing with the Landlord. Due to the issues faced by the Tenant, the stay of the order will be lifted as of May 31, 2023. It is ordered that: 1. The motion to set aside Order LTB-L-082127-22, issued on February 12, 2023, is denied. 2. The stay of Order LTB-L-082127-22 is lifted on May 31, 2023. 3. Order LTB-L-082127-22 is unchanged. April 13, 2023 Date Issued Jagger Benham Member, Landlord A. 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 3 of 3