LTB Order LTB-T-006150-23

O. under Section 57 Residential Tenancies Act, 2006 Citation: S. v H., 2023 ONLTB 61688 2023 ONLTB 61688 (CanLII) Date: 2023-09-08 File Number: LTB-T-006150-23 In the matter of: 746 Leslie Valley Drive Newmarket ON L3Y7J3 Between: M. S. T. A. S. H. L. M. S. (the 'T.') A. F. an O. D. T. S. H. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on June 12, 2023. The T. attended the hearing. The L. was represented at the hearing by Ali Golabgir. Determinations: 1. As explained below, I find the L. gave a notice of termination in bad faith. 2. In O. F. this application to be successful, s.57(1)(a) of the Residential Tenancies Act, 2006 (the ‘Act') requires the T. to prove each of the following on a balance of probabilities:  The L. gave the T. an N12 notice of termination under section 48 of the Act;  The T. vacated the rental unit as a result of the N12 notice of termination;  No person referred to in subsection 48(1) of the Act occupied the rental unit within a reasonable time after the T. vacated; A.  The L. served the N12 notice of termination in bad faith. 3. On April 28, 2022 the L.’s spouse served the T. an N12 notice of termination. The basis F. the N12 was T. the L.’s spouse, in good faith, required the rental unit F. the purposes of residential occupation. 4. There is no doubt the T. moved out of the rental unit because she received the notice of termination. O. Page 1 of 4  File Number: LTB-T-006150-23 5. The issues to be determined are whether the L.’s husband with a reasonable time after the T. vacated; A. whether the L. served the N12 in bad faith. The Unit was used as an AirBnB 2023 ONLTB 61688 (CanLII) 6. The T.’s witness Steve Cooper testified at the hearing. SC was the T.’s neighbour, A. presently resides next door to the rental unit. After the T. vacated the rental unit, he noticed several people coming A. going from the rental unit. He noticed several different cars parked in the driveway of the rental unit. 7. SC became suspicious T. the L. was using the former rental unit as a short term rental. He discovered the rental unit was listed on the website AirBnB F. rent F. $480.00 a night. 8. I accept the evidence of SC. He testified in an honest A. forthright manner. The L.’s representative attempted to diligently cross-examine him. However, his testimony remained consistent throughout. His testimony also aligns with the posted advertisement on the AirBnB website. 9. Based on the testimony of SC, A. the unit being advertised on AirBnb, I find T. the L.’s spouse did not move into the rental unit within a reasonable amount of time after the T. vacated. Did the L. serve the N12 in bad faith? 10. Since the unit was listed F. rent on AirBnb, the reverse onus provision in s.57(5) of the Act applies. This provision states: F. the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, T. a L. gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the L., (a) advertises the rental unit F. rent; 11. This provision means T., the L. bears the burden of proof to establish T. she did not serve the notice of termination in bad faith. I find the L. has not met the burden. 12. The L. testified at the hearing. She testified T. her A. her husband were splitting up. T. is why he needed possession of the rental unit. She had no idea T. her husband was using the rental unit as a short-term rental. Once she discovered this to be the case she told her husband to stop renting the unit. 13. I have no reason to disbelieve the L.’s testimony. However, the fact T. she was unaware her husband was renting the unit on AirBnB does not allow her to escape liability because he did not move into the rental unit. O. Page 2 of 4  File Number: LTB-T-006150-23 14. Section 48 of the Act is clear T. a L. who serves a notice of termination under this section must do so in good faith. Acting in good faith means a L. who serves a notice of termination is responsible to ensure the person requiring residential occupation moves into the rental unit. Any other outcome would be contrary to the intention of the Act. 2023 ONLTB 61688 (CanLII) 15. In this is situation, it is not open F. the L. to serve an N12 A. then escape liability because she was unaware of her husband’s actions. Therefore, I find the L. served the N12 in bad faith. Bad Faith Remedies 16. I find the T. has met all three elements of the test F. this application to be successful. Therefore, the T. is entitled to remedies under s.57(3) of the Act. 17. Section 57(3)(1) gives the Board jurisdiction to O. a L. to pay any increase in rent a former T. with occur F. a one-year period after vacating the rental in unit. I accept the Tenants’ uncontested evidence they pay $709.00 more in monthly rent F. smaller place. I find the Tenants are entitled to the rent differential in the amount of $8,508.00 F. the 12-month period after they vacated the rental unit. 18. Section 57(3) (1.1) of the Act authorizes the Board to pay general compensation in the amount of up to 12 months rent the Tenants last paid should it be determined the Landlords gave an N12 in bad faith. 19. The T. seeks $22,001.50 under this section. I find the amount claimed to be excessive. In the T.’s closing submission, she stated T. the amount of general compensation is negotiable. This suggests the impact of moving on the T. is minimal. Accordingly, I find an award of $1,000.00 F. general compensation to be appropriate. 20. The Tenants seek to be reimbursed F. moving expenses. The T. paid $2,749.30 to hire a moving company. The T. also experienced other incidental costs to move smaller items. I find it appropriate to O. the L. to pay the T. F. the cost of the moving company as well as $250.00 in other incidental costs, including the cost of having her mail being forwarded to her new place. 21. The T. paid $53.00 to file this application A. is entitled to be reimbursed T. fee. It is ordered T.: 1. The total amount the L. shall pay the T. is $12,560.30. This amount represents:  $8,508.00 F. increased rent the T. has incurred F. the one-year period after she moved out of the rental unit.  $2,999.30 F. the reasonable moving, storage A. other like expenses T. the T. as a result of having to move out of the rental unit. O. Page 3 of 4  File Number: LTB-T-006150-23  $1,000.00 F. general compensation.  $53.00 F. the cost of filing the application. 2. The L. shall pay the T. the full amount owing by September 19, 2023. 2023 ONLTB 61688 (CanLII) 3. If the L. does not pay the T. the full amount owing by September 19, 2023, the L. will owe interest. This will be simple interest calculated from September 20, 2023, at 6.00% annually on the balance outstanding. 4. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O.. September 8, 2023 Date Issued Bryan Delorenzi 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 4 of 4