LTB Order LTB-T-000836-23

Order under Sections 57(1) A. 135 Residential Tenancies Act, 2006 2023 ONLTB 36301 (CanLII) Citation: M. B. v J. E., 2023 ONLTB 36301 Date: 2023-05-17 File Number: LTB-T-000836-23 In the matter of: 2096 RUDELL ROAD NEWCASTLE ON L1G1B9 Between: T. M. B. A. J. E. Landlord M. B. (the 'T.') applied for an order determining J. E. (the 'Landlord') gave a notice of termination in bad faith. M. B. (the 'T.') also applied for an order determining J. E. (the 'Landlord') has collected or retained money illegally. This application was heard by videoconference on May 1, 2023. The T. M. B. A. the T.’s Legal Representative Caroline Wilson A. the Landlord J. E. A. the Landlord’s Legal Representative Thirusenthuran Sivapatham attended the hearing. Determinations: 1. The T5 application alleges the Landlord gave the T. notice to end the tenancy in bad faith. The T1 application alleges the Landlord did not pay the T. the compensation required by the Residential Tenancies Act, 2006 (the Act). 2. The rental unit is a detached single family with four bedrooms A. 3.5 bathrooms. The monthly rent was $2,200.00. Order Page 1 of 6  File Number: LTB-T-000836-23 Preliminary Issue 3. The Landlord pointed out no N12 notice of termination was served on the T.. This was not disputed by the T.. The Landlord requested I dismiss the applications as a result. The T. submitted they intended to call evidence that showed the communications 2023 ONLTB 36301 (CanLII) between the parties amounted to an N12 notice. I determined it was most prudent to hear the merits of the applications before making any decision A. the hearing proceeded. T5 Application 4. This application is brought under section 57(1) of the Act which sets out a three part test. In order to be successful, first, the T. must establish the Landlord gave a notice of termination in bad faith. Second, that the T. vacated the rental unit in response to the notice or a Board order based on the notice. Third, that no person referred to in the notice occupied the rental unit within a reasonable time. 5. The Landlord did not serve the T. an N12 notice of termination under section 48 or 49 of the Act. This was undisputed. However, this fact alone is not determinative of the issue. In some circumstances, the communication between the parties can amount to a notice of termination of the tenancy. 6. At the hearing, the T. submitted text messages between herself A. the Landlord. The Landlord did not dispute this evidence. Some of the text messages are dated A. some are not. 7. On March 18, 2022, the Landlord texted the T. advising her he was considering either selling the rental unit or keeping it for another year or two. The T. responds by saying she prefers the “keep option”. 8. On March 21, 2022, the Landlord sent the T. a text message advising her he had spoken with his father A. that “the best thing to right now is sell the house”. The text messages show the parties then discussing the amount of notice the T. is entitled to. The T. asks if she has 60 days from May 1, 2022. She also tells the Landlord she will have to “look into the T. allowances for move out dates”. The Landlord responds by acknowledging he has to provide the T. 60 days notice A. says “I can give you until May 21, 2022”. 9. The T. testified she had done some research prior to moving out of the rental unit A. spoke to realtor. As a result of this research A. discussions with a realtor, she requested compensation from the Landlord. 10. In a partial text message, the T. tells the Landlord that a realtor she spoke to told her she is entitled to “60 days notice from the lease ending or we would be entitled to a month’s rent”. 11. The parties discuss a letter of recommendation A. the Landlord offers to provide the T.’s phone number to his realtor. Order Page 2 of 6  File Number: LTB-T-000836-23 12. The T. reiterated the Landlord told her he was selling the rental unit, gave her a date to leave by A. that was “enough for her”. She again referenced the text message from March 21, 2022 where the Landlord tells the T. he spoke with his father A. decided to sell. This is the message that provides 60 days notice, ending on May 21, 2022. 2023 ONLTB 36301 (CanLII) 13. The Landlord testified he planned to sell the rental unit A. gave the T. 60 days notice to vacate. His evidence was after she moved out on May 1, 2022 he was advised by his realtor the market had softened A. he would not receive the price he was hoping to get. 14. The Landlord testified he decided to re-rent the rental unit in the first week of May 2022. He also testified he did not advise the T. that he had changed his mind. On May 17, 2022 the rental unit was rented to new tenants for $3,600.00 per month. The Landlord admitted he did not give the T. an N12 notice of termination or pay her compensation. The Landlord testified he was not aware of “the rules”. 15. The T.’s evidence was she found new accommodations A. had to take possession on April 2, 2022 in order to secure the new unit. Her monthly rent is now $2,650.00. Her new home is smaller. It is a townhouse with three bedrooms A. 1.5 bathrooms. It has a smaller back yard than the rental unit had. Her evidence was she vacated the rental unit on April 30, 2022. Analysis 16. Section 57(1)(a) of the Act reads as follows: The Board may make an order described in subsection (3) if, on application by a former T. of a rental unit, the Board determines that, (a) the landlord gave a notice of termination under section 48 in bad faith, the former T. vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, A. no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former T. vacated the rental unit; 17. On the evidence of both parties, I am convinced the communications between the parties amounts to an N12 notice of termination. There was no dispute between the parties of what was said between the two. The Landlord admitted he wanted to sell the house A. in March 2022, he gave the T. 60 days notice to vacate. At the hearing, the Landlord gave no evidence he was unsure of what he wanted to do when he gave the T. 60 days notice to vacate. His evidence was the market was “hot” A. he wanted to sell. Based on the evidence of both parties, I do not find there was any confusion between the parties. Order Page 3 of 6  File Number: LTB-T-000836-23 18. On balance of probabilities, I find the notice provided to the T. by the Landlord was for personal use. I say this because the there was no purchaser in place when the Landlord gave the T. 60 days notice to vacate. What the Landlord does with the property after 2023 ONLTB 36301 (CanLII) he has received vacant possession without an agreement of purchase A. sale is his own personal use. Therefore, I consider section 57(1)(a) for my analysis. 19. While the notice provided by the Landlord was invalid as the termination date did not fall on the last day of a rental period, I do not find this matters. It would be unfair to allow the Landlord to circumvent the Act or escape liability simply because he failed to comply with the correct procedures. Further, it would be contrary to the intent of the Act to disallow applications under section 57(1)(a) of the Act because the Landlord’s notice of termination is invalid. 20. Section 57(5) reads as follows: For the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the landlord, (a) advertises the rental unit for rent; (b) enters into a tenancy agreement in respect of the rental unit with someone other than the former T.; 21. The presumption of bad faith contained in section 57(5) is triggered in this case as the Landlord had re-rented the rental unit within three weeks of the T. vacating. The Landlord’s evidence that the market softened requiring him to change his plans A. re-rent the unit, for significantly more money, seemed convenient for the time lines A. events involved. I do not accept the Landlord only found out from his realtor that the market had changed after the T. vacated. Even if I am wrong, the Landlord’s intention was to sell the property, not reside there for a period of one year. Listing the property for sale would also have trigged a presumption of bad faith. 22. On a balance of probabilities, I find it more likely than not, the Landlord intended to either sell or re-rent the rental unit at the time he gave the T. 60 days notice to vacate the unit. Since neither intention is permitted by the Act, I find the notice given to the T. was done so in bad faith. 23. I am satisfied the T. vacated the rental unit in response to the Landlord giving her 60 days to vacate the rental unit. The T. stated more than once she believed she had to move out because the Landlord was selling A. the Landlord did not dispute this. 24. I am also satisfied the only persons that moved into the rental unit within a reasonable period of time were the Landlord’s new tenants. New tenants, paying a higher rent amount Order Page 4 of 6  File Number: LTB-T-000836-23 than the T. was, are not included in the persons that must occupy the rental unit in a reasonable period of time for a period of at least one year. 2023 ONLTB 36301 (CanLII) 25. On all of the evidence, I am convinced on a balance of probabilities the T. has met their burden on this application. She has proven the Landlord gave her notice to terminate the tenancy in bad faith, that she vacated the rental unit as a result of this notice A. that no person contemplated under section 57(1)(a) occupied the rental unit within a reasonable period of time. T1 Application 26. The T.’s T1 application alleges the Landlord did not comply with section 48.1 of the Act by giving her notice of termination pursuant to section 48 of the Act A. failing to pay the required compensation. Section 48.1 of the Act says: A landlord shall compensate a T. in an amount equal to one month’s rent or offer the T. another rental unit acceptable to the T. if the landlord gives the T. a notice of termination of the tenancy under section 48. 27. I have already determined the Landlord gave the T. notice to vacate the rental unit pursuant to section 48 of the Act. At the hearing, it was not disputed the Landlord did not pay the T. the one month’s compensation he was required to. I am satisfied on a balance of probabilities the T. has proven her claim on this T1 application. Remedies 28. The T. sought $2,200.00 for the compensation the Landlord did not pay her as required by section 48.1. As a result, this amount will be granted. 29. The only other remedy requested by the T. was $26,400.00 pursuant to section 57(3)1.1 of the Act. This subsection permits the T. to seek general compensation up to the equivalent of one year’s rent at the last rent charged. In this case the monthly rent was $2,200.00. The T. did not provide any submissions as to how they arrived at the amount they were seeking other than it was the maximum permitted under the legislation. 30. While the T. sought this general compensation in the rent abatement area of the application, they clearly articulate in writing the amount being sought A. the legal basis for it. I found the Landlord could not possibly be confused or surprised by this claim for general compensation. The application clearly states “as per Bill 184” A. seeks one year’s rent. The application stipulates the amount being requested. 31. The Landlord argued the T. had a duty to mitigate the general compensation being requested by seeking legal advice A. knowing what her rights were. I do not find a Order Page 5 of 6  File Number: LTB-T-000836-23 T. should have to seek legal counsel to protect themselves from the behaviour of a Landlord rooted in bad faith. 32. Further, I find the T. did mitigate. She rented a home in the Province of Ontario, availing herself of the protections contained within the Residential Tenancies Act, 2006. 2023 ONLTB 36301 (CanLII) 33. The T. was not provided the proper notice period she was entitled to. Her evidence was she rushed to find a new place to live given the circumstances. She had to prepay four months of rent to secure her new home. The actions of the Landlord caused her to downsize A. pay more in monthly rent. The T. lost her home of four years to a Landlord operating outside of the Act. The Landlord’s explanation that he did not know the rules serves as little comfort to the T.. He has profited while the T. has lost. 34. The Landlord re-rented the unit for $1,400.00 per month more than the T. was paying him. As a result of the Landlord’s conduct, the T. now pays an additional $450.00 per month for her housing. I find awarding the T. one year’s worth of these amounts a fair A. reasonable amount for general compensation. This amount totals $22,200.00 A. it will also be ordered. It is ordered that: 1. The Landlord shall pay to the T. the amount of $24,400.00. This amount represents general compensation of $22,200.00 pursuant to section 57(3)1.1 of the Act A. $2,200.00 for the unpaid compensation required under section 48.1 of the Act. 2. The Landlord shall also pay to the T. $53.00 for the cost of filing the application. 3. The total amount the Landlord owes the T. is $24,453.00. 4. If the Landlord does not pay the T. the full amount owing on or before May 28, 2023, the Landlord will start to owe interest. This will be simple interest calculated from May 29, 2023 at 6.00% annually on the balance outstanding. May 17, 2023 ____________________________ Date Issued John Cashmore Member, Landlord A. T. 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 6 of 6