LTB Order LTB-T-002954-23

O. under Section Residential Tenancies Act, 2006 Citation: A. E. v T. Yu, 2023 ONLTB 39831 Date: 2023-05-30 2023 ONLTB 39831 (CanLII) File Number: LTB-T-002954-23 In the matter of: 27 Maralisa St Ottawa ON K2G6S9 Between: A. E. T. A. T. Yu L. A. E. (the 'T.') A. F. an O. D. T. T. Yu (the 'L.) substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the T. or by a member of the T.'s household (T2 Application). The T. also A. F. an O. D. T. the L. gave a notice of termination in bad faith (the T5 application). These applications were heard by videoconference on May 16, 2023 at 09:00 am. T. Representative Reem Chansedine, the T. A. the L. attended the hearing. Preliminary Issue: 1. At the outset of the hearing the T. Representative requested T. I consider the T.’s T5 Application even though the L. had not given the Tenants an N12 Notice of Termination under section 48 of the Residential Tenancies Act, 2006 (the “Act”). 2. At the hearing I stated T. since no N12 Notice of Termination was given to the T., I would not consider the T.’s T5 Application. However, notwithstanding this oral ruling I did permit the parties to provide evidence A. submissions on the T5 application. Subsequently, A. as explained below, through testimony A. evidence introduced through the course of the hearing, I am now satisfied T. the essential elements of an N12 Notice to Terminate were provided to the T.. Therefore, the Board has the jurisdiction to consider the T.’s T5 Application under section 57(1) of the Act. Determinations: 3. The T. moved into the rental property on November 01, 2018 with his family A. vacated on July 01, 2022. 4. The lawful rent was $2,150.00 prior to the T. moving out. O. Page 1 of 6  File Number: LTB-T-002954-23 T.’s Testimony A. Evidence 5. The T. testified T. in March 2022 the L. called him A. informed him T. he 2023 ONLTB 39831 (CanLII) would be requiring the rental property F. his own use, stating T. his parents intended to move in once they immigrated from China. In the months T. followed the L. would regularly text him inquiring as to when he could regain possession. In response he offered to pay more rent but the L. refused, again stating he needs the house F. his parents. This was supported by several text messages entered in evidence, including one message dated May 28, 2022 in which the L. states T. he needs the house F. parents as soon as the end of June 2022. 6. On April 27, 2022, the T. A. the L. signed a N11 Agreement to terminate the tenancy on June 30, 2022. The L. agreed to compensate the T. two months rent A. cover the moving costs. A copy of the N11 agreement, dated, with the handwritten annotations stipulating the two months rent in compensation A. reimbursement F. moving costs was entered into evidence. 7. The T. testified T. the L.’s parents never moved into the rental unit, A. in fact sold the unit on July 22, 2022 after he vacated. The T. had seen F. sale signs on the property. This was supported by a copy of listing in his submissions, although not introduced. He also testified T. throughout the tenancy the L. would regularly increase the rent above the annual provincial guidelines A. T. he only wanted to profit from the unit. 8. He further testified the L. had initially provided him with a fraudulent cheque F. the two months compensation, A. T. cheque caused him to go into a negative balance with his bank. A copy of the cheque with the name of an individual other than the L. was entered in evidence. After this, the L. e-transferred him the two months compensation. 9. It was also his testimony T. the L. never compensated him the moving costs as agreed, stating T. when he provided the L. the receipt, entered in evidence, the L. claimed T. he A. his family damaged the property. It was his position T. the L. had conducted a walk through prior to him returning the keys A. there was no damaged as claimed. 10. It was the T.’s submission T. he A. his family never wanted to leave the rental unit. The L. actively A. persistently harassed him through text a phone to move out as soon as possible, repeatedly stating it was F. his parents A. it was only due to him not knowing his rights T. he complied. 11. The remedies sought by the T., as per their T2 A. T5 Applications are as follows: a. $520.00 difference in rent F. a 12 month period; b. $1,975.00 in moving costs T. the L. was required to pay per their N11 agreement; O. Page 2 of 6  File Number: LTB-T-002954-23 c. General compensation $16,000.00 (T2 Application) The L.’s Testimony A. evidence 12. The L. testified T. throughout the tenancy the T. had caused him problems, 2023 ONLTB 39831 (CanLII) regularly paying the rent late or not at all. As such he wanted to terminate the tenancy A. T. he used the guise of his parents moving into the house in O. to force the T. to move out. 13. He didn’t dispute the terms of the N11 agreement or T. he presented it to the T. despite knowing he had no intent of his parents moving in, admitting it was the easiest option to regain possession A. only told the T. T. lie after he had signed the N11 Agreement. This is supported by a written statement he submitted to the Board but was not introduced in evidence. 14. He also admitted to withholding the moving costs, submitting in evidence several pictures of the rental property T. depicted varying damaged from broken door handles, missing lamp shades, debris A. general uncleanliness. It was his position T. he was entitled to retain the moving costs to offset the repairs A. cleaning. He also testified to having sold the property after regaining possession A. T. his parents never intended to move into the property. The L. acknowledged T. he actively gamed the system. Analysis Bad Faith 9. The T5 application was filed by the T. under section 57(1)(a) of the Act which requires a former T. to prove T. it is more likely than not T.: (1) The L. gave a notice of termination under section 48 of the Act (i.e. F. L.’s own use) in bad faith; (2) The T. vacated the rental unit as a result of the notice; A. (3) The person listed in the N12 Notice did not occupy the rental unit within a reasonable time after the former T. vacated the rental unit. 10. Section 48(1)(c) of the Act states: 48 (1) A L. may, by notice, terminate a tenancy if the L. in good faith requires possession of the rental unit F. the purpose of residential occupation F. a period of at least one year by, (c) a child or parent of the L. or the L.’s spouse 11. It’s undisputed T. the L. did not serve a N12 Notice to Terminate the Tenancy. T. said, I am satisfied, based on the above evidence A. testimony, T. the essential elements of such a notice, specifically, T. the L. required vacant possession of O. Page 3 of 6  File Number: LTB-T-002954-23 the rental unit F. his parents use, were communicated to the T. by the L. via text messages in in May 2022 A. via a phone call from the L. in March 2022. In making this finding I have had regard to section 202 of the Act which requires the Board to ascertain the real substance of all transactions A. activities relating to a residential complex or a rental unit A. the good faith of the participants. 2023 ONLTB 39831 (CanLII) 12. Although submitted but not entered in evidence, the L.’s written statement asserts T. he didn’t communicate his admittedly false claim T. he needed the unit F. his parents until after the T. signed the N11 agreement. I do not accept this. Given the L. freely testified T. his parents never intended to move in A. T. on my own questioning he admitted to circumventing the system, I do not find the L. to be a credible witness. I accept the T.’s testimony T. he began searching F. a new rental property A. then signed the N11 agreement under the belief T. the L.’s parents were moving into the rental unit. 13. I further accept T. the T. vacated the rental unit as a result of the L.’s communication T. contained the essential elements of an N12 Notice. While the T. signed an N11 Agreement to terminate the tenancy, I find T. he only did so because the L. told him he needed vacant possession. 14. The L. did not dispute the T.’s evidence T. the rental unit was listed F. sale less than a month after the T. vacated. Therefore, pursuant to section 48(5) of the Act there is presumption T. the N12 Notice was served in bad faith 15. I do not find T. the L. has rebutted the presumption of bad faith. At no time did the L. shy away from the fact T. he deceived the T.. Instead, on my own questioning admitted to using the deception to gain possession of the rental unit, A. once he had possession, to sell it within the same month of gaining possession. 16. Accordingly, I find T. the T. has proven all three parts of the test under section 57(1)(a) of the Act, meaning the T5 application is successful. I am satisfied T. the T. has proven T. the L. gave notice under s.48 in bad faith, T. the T. vacated the rental unit as a result of T. notice A. T. persons the L. indicated would occupy the rental unit, namely his parents, did not do so in a reasonable time. Remedies 17. I am satisfied T. the T. incurred $1,975.00 in moving costs when he vacated the rental unit on July 1, 2022 as supported by the receipt entered in evidence. I find T. this was a reasonable out-of-pocket moving expense A. should be awarded pursuant to section 57(3)1.1 of the Act. The L.’s unproven allegation T. the T. caused damage is not a ground F. denying the T. this remedy. If the L. believed T. the T. should have been required to pay compensation F. damages, he should have filed his own application at the Board O. Page 4 of 6  File Number: LTB-T-002954-23 18. I am also satisfied T. the L. should pay the $520.00 difference in rent F. the 12 month period from 1 July 2022 to 1 July 2023 pursuant to section 57(3)1 of the Act. The total amount owing is $6,240.00. I base this on the new lease T. the T. submitted T. confirming he had signed a new lease commencing July 1, 2022 F. $2,670.00 a month. 2023 ONLTB 39831 (CanLII) Substantial Interference A. Harassment 19. Sections 22 A. 23 of the Act states: 22 A L. shall not at any time during a T.’s occupancy of a rental unit A. before the day on which an O. evicting the T. is executed substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it is located F. all usual purposes by a T. or members of his or her household. 23 A L. shall not harass, obstruct, coerce, threaten or interfere with a T.. 20. The alleged substantial interference A. harassment in this case rises from the L.’s bad faith notice A. subsequent communications to hasten the T. to vacate. Given T. I have determined T. the T. is entitled to full requested remedy under the T5 application A. T. the underlying facts are the same, it is not necessary F. me to address this part of the application other than the requested remedy of $16,000.00 in general compensation in the T.’s T2 application. 21. Having reviewed the L.’s text messages, I do agree they were persistent in asserting the L.’s desire to regain possession but at no time were they threatening in nature. The T. actively participated in the negotiations over the date he A. his family would move out. Accordingly, F. this reason I cannot find T. the texts constituted harassment or award the requested remedy of $16,000.00 in compensation. It is ordered T.: 1. The L. shall pay to the T. $1,095.00 representing the moving costs the T. incurred. 2. The L. shall also pay to the T. $10,800 representing the rent differential F. a period of 12 months. 3. If the L. does not pay to the T. the total amount owing of $11,895 on or before June 10, 2023, he shall begin to owe interest. This will be simple interest calculated at 6% annually commencing on June 11, 2023. O. Page 5 of 6  File Number: LTB-T-002954-23 May 30, 2023 Date Issued Kelly Delaney Member, L. A. T. Board 15 Grosvenor Street, Ground Floor, 2023 ONLTB 39831 (CanLII) Toronto ON M7A 2G6 If you have any questions about this O., call 416-645-8080 or toll free at 1-888-332-3234. O. Page 6 of 6