LTB Order LTB-T-003522-23

2023 ONLTB 48876 (CanLII) O. under Section 57 Residential Tenancies Act, 2006 Citation: D. v Do, 2023 ONLTB 48876 Date: 2023-07-10 File Number: LTB-T-003522-23 In the matter of: 1425 Islington Avenue Etobicoke ON M9A3K8 Between: T. T. D. T. A. T. V. Do L. T. T. D. (the 'T.') A. F. an O. D. T. T. V. Do (the 'L.'), gave a notice of termination in bad faith; A., because the L. charged the T. an illegal rent A. did not pay the T. the required one month’s compensation. This application was heard by videoconference on May 16, 2023. The L. T. V. Do, the L.’s representative F. Bari, the T. A. the T.’s representative J. Nieuwhof attended the hearing. Determinations: 1. The T. brought a T5 Application claiming the L. gave him an N12 notice of termination in bad faith A. a T1 Application claiming the L. charged the T. an illegal rent increase. Both applications were filed on August 26, 2022. 2. The T.’s T5 Application claims the L. gave the T. an N12 notice of termination in bad faith. Pursuant to section 57(1) of the Residential Tenancies Act, 2006 (the “Act”), the Board may make an O. against a L. if, on application by a former T. of a rental unit, the Board determines T. the L. gave a notice of termination O. Page 1 of 6  File Number: LTB-T-003522-23 under section 48 in bad faith, the former T. vacated the rental unit as a result of the notice, A. no person referred to in clause 48 occupied the rental unit within a reasonable time after the former T. vacated the rental unit. To be successful in their T5 application, the Tenants must establish all three of the requirements of subsection 57(1)(a) on a balance of probabilities: 2023 ONLTB 48876 (CanLII) First, T. the L. gave a notice of termination under section 48 of the Act (the N12 notice) in bad faith; Second, T. the Tenants vacated the rental unit as a result of the N12 notice or Board O. based on the N12 notice; Third, T. the person named in the N12 notice did not move into the rental unit within a reasonable time after the Tenants vacated. 3. The T. T. T. D. (TD) testified he moved into the rental unit in January 2021 A. vacated the rental unit on June 1, 2022 as a result of notice to terminate tenancy given by the L.. 4. The T. produced text communications from March 29, 2022 whereby the L.’s spouse, Hong Quyen (HQ), whom I find was acting as the L.’s agent in her communications with the T., advised the T. as follows: …In May, my brother will come here from Viet Nam. I intend to let him live in your room….can you find another room in time? 5. Later, on April 3, 2022 at 1:25pm, HQ advised the T. as follows: …Let me rephrase: my brother will come here so I need your room F. him in early June if possible. If you haven’t found a new place yet, you can continue to stay until finding one… 6. The L. maintains there was no notice of termination given to the T., A. states he met in person with the T. at 7:00pm on April 3, 2022. The L. claims the T. advised him he was not moving out “unless he gets an LTB notice”. The L. testified it would take too long to go to the L. A. T. Board A. thus, he claims he advised the T. he did not have to move out A. T. he had “another solution” F. his brother-in-law. O. Page 2 of 6  File Number: LTB-T-003522-23 7. A text was produced from two days after the in-person meeting whereby the T. advised the L.’s spouse/agent T. people often “ask F. a lot of money when they know their L. wants to repossess the house. I have no intention of doing T.. Well, if you really want to take the room back F. your loved ones to use, you can take it. This is your home…You don’t need any papers F. me. If you said the move-out date is at the end of 2023 ONLTB 48876 (CanLII) May, then at the end of May, I will move out. 8. Significantly, there was no correction given by the L.’s spouse re: the use of the rental unit. In fact, the L.’s spouse’s response appears to reaffirm the T.’s understanding the L.’s brother-in-law still sought to move into the rental unit, by saying “I’m so glad you messaged me like T.….Thank you very much.” Based upon this, A. prior text communications, I find there was a “meeting of the minds” between the parties T. the L. sought vacant possession of the rental unit F. use by his brotherin-law. 9. While the text communications from the L. (or the L.’s agent), collectively, do not comply with the legal requirements F. a Form N12 notice of termination, I believe section 57(1)(a) still applies. In this regard, I agree A. adopt the analysis of Vice-Chair Carey in TST-63263-15 (Re), 2014 CanLII 75856 (ON LTB), albeit in the context of the service of an invalid Form N13: …a L. should not be able to escape the consequences of giving bad faith notice just because he or she gave a notice of termination T. turns out to be invalid. 10. Based upon the text communications between the parties, I find on a balance of probabilities the T. vacated the rental unit as a result of the representation T. the L.’s brother-in-law would be moving into the rental unit. While the T. did not insist upon receipt of a formal N12 notice, I find this is because the T. trusted the L. A. accepted his reason F. wanting to reclaim the rental unit. 11. The T. testified the L.’s brother-in-law did not move into the rental unit A. in fact, produced online advertisements posted by the L. immediately after vacating the rental unit, seeking $850-$1000 in rent F. the rental unit A. vacant possession was required. The T. also produced text correspondence between his acquaintances A. the L.’s spouse following his departure, confirming the availability of the rental unit. 12. I find all three requirements under section 57(1) are satisfied. In particular, I find based on a balance of probabilities T. a notice was given to the T. in bad faith A. the person (i.e. the “L.’s brother-in-law”), did not move into the rental unit. Moreover, based upon the text communications between the parties, it is clear the T. vacated the rental unit because of the L.’s representations. O. Page 3 of 6  File Number: LTB-T-003522-23 13. The next issue to be determined is remedies. The T. seeks a rent abatement of $8,400.00; rent differential compensation in the amount of $7200.00; compensation F. moving A. storage expenses of $212.93; A., general compensation F. mental stress A. exhaustion in the amount of $8,400.00. 2023 ONLTB 48876 (CanLII) 14. The T.’s 12 month rent abatement claim A. general compensation claims are denied, as the T. did not sufficiently particularize the underlying basis F. such claims, nor did the T. differentiate the basis F. such claims in light of the other remedies requested. 15. The T.’s rent differential compensation claim is granted, in part. The T. produced a copy of a signed lease F. a rental unit, commencing June 1, 2022, at a cost of $1300/month. The condominium unit, including use of the balcony, is shared with one other person, whereas the rental unit was located in a home with multiple other residents. As such, the new unit is admittedly more private. Moreover, the T. now has access to a living room, which he acknowledged he did not have at the rental unit. As the shared use of the condominium unit appears to be a more desirable residence, I do not find the T. should be entitled to the rent differential F. the entire increase in rent paid. Instead, I find it would be more reasonable F. the T. to be granted the rent differential between the amount the T. was paying ($700), A. a discounted rate of $1000/month, F. a total abatement of $3,600.00. 16. The T. seeks moving A. storage expenses in the amount of $212.93 A. produced a gas receipt F. a rented car in the amount of $87.15; A. a car rental cost receipt in the amount of $125.78 F. moving items. I find the T. should be entitled to these costs which are attributed to the bad faith eviction. 17. The T. also requested T. the L. pay a fine. According to the Board’s Interpretation Guideline 16, fines are typically only imposed where the L. has shown “blatant disregard” F. the Act A. other remedies will not provide adequate deterrence. Given the other remedies awarded in this application, I do not find T. a fine is required in the circumstances. T1 Application 18. The T.’s T1 Application seeks the return of the illegal rent charged by the L. in the amount of $400.00 A. compensation in the amount of $700.00 because the L. gave a notice to end tenancy A. did not pay one month’s compensation by the termination date in the notice. O. Page 4 of 6  File Number: LTB-T-003522-23 19. With respect to the illegal rent claim, the T. testified the monthly rent was $700/month from January 1, 2021 through to December 31, 2021. On December 16, 2021, the L. requested T. the T. begin paying $800.00/month, commencing January 1, 2022. It was not disputed T. the T. paid the additional $100/month F. the months of January through to April 2022 A. T. a notice of rent increase was never provided, nor 2023 ONLTB 48876 (CanLII) was the increase in rent in accordance with the rent increase guidelines. The T. shall therefore be entitled to the return of the illegal rent increase, in the amount of $400.00. 20. The T. also seeks one month’s compensation, as no such compensation was provided to the T. in accordance with section 55.1 of the Act. Given my findings T. the L. served the T. a notice of termination in bad faith, the T. shall also be entitled to the one month’s compensation from the L.. It is ordered T.: 1. The L. shall pay to the T. $3,812.93. This amount represents the rent differential A. moving expenses compensation. 2. The L. shall pay to the T. $700.00. This amount represents the one month’s compensation. 3. The L. shall pay to the T. $400.00. This amount represents reimbursement of the unlawful rent increase. 4. The L. shall also pay to the T. $53.00 F. the cost of filing the application. 5. The total amount the L. owes the T. is $4,965.93. 6. If the T. does not pay the L. the full amount owing on or before July 21, 2023, the T. will start to owe interest. This will be simple interest calculated from July 22, 2023 at 6.00% annually on the balance outstanding. July 10, 2023 ____________________________ Date Issued Peter Nicholson Member, L. A. T. Board 15 Grosvenor Street, Ground Floor, 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 5 of 6 File Number: LTB-T-003522-23 2023 ONLTB 48876 (CanLII) O. Page 6 of 6