LTB Order LTB-T-007509-23

O. under Section 57 Residential Tenancies Act, 2006 Citation: B. v O., 2023 ONLTB 53057 2023 ONLTB 53057 (CanLII) Date: 2023-07-28 File Number: LTB-T-007509-23 In the matter of: 2, 344 Charlton Avenue West Hamilton Ontario L8P2E7 Between: S. B. T. Z. De S. J. 28, 2023 A. N. G. O. L. S. B. A. Z. De S. (the 'T.') A. F. an O. D. T. N. G. O. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on July 13, 2023. The first named T., the Tenants’ legal representative Cindy Coon A. witness F. the Tenants Alison Farmer A. the L. attended the hearing. The first named T. confirmed he has authorization to speak on behalf of the second named T.. Determinations: 1. As explained below, the Tenants did not prove the allegations contained in the application on a balance of probabilities. Therefore, the application is dismissed. 2. The rental unit is the middle unit of a triplex. 3. The tenancy began around November 2017. 4. The tenants moved out around December 3, 2021 5. The T.’s filed a T5 application September 29, 2022. O. Page 1 of 4  File Number: LTB-T-007509-23 6. The Tenants assert the L. gave an N12 notice to terminate the tenancy in bad faith A. the L. did not move into the rental unit. 7. Subsection 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: 2023 ONLTB 53057 (CanLII)  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. 8. There is no dispute T. the L. served the Tenants with a notice of termination under s.48 of the Act nor T. the Tenants moved out because they received this notice. 9. The central factual dispute is T. the L. served the notice of termination in bad faith. Presumption of Bad Faith 10. There is no dispute T. the L. served the Tenants with an N12 notice of termination on or around August 24, 2021 with a termination date of October 31, 2021. The N12 notices states T. the L. intends to move into the rental unit A. occupy it F. at least one year. There is no dispute T. the L. did not proceed with filing the L2 application with the Board. 11. The Tenants submit T. the L. did not move into the rental unit, T. frequent drive by visits indicate the unit is dark with no signs of anyone living there, no car in driveway, curtains always drawn, an accumulation of mail A. notices from the City of Hamilton affixed to the property in various spots. 12. The Tenants’ witness testified T. she is often home A. does not believe T. the L. moved into the rental unit as it appears to be vacant A. no signs of coming A. going by the L.. She cites many of the same details as above. 13. The Tenants did not lead any evidence T. the L. did not intend to move into the rental unit. 14. I would observe at this point T. the reverse onus provision in subsection 57(5) of the Act applies to this situation. 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; O. Page 2 of 4  File Number: LTB-T-007509-23 (b) enters into a tenancy agreement in respect of the rental unit with someone other than the former T.; (c) advertises the rental unit, or the building T. contains the rental unit, F. sale; 2023 ONLTB 53057 (CanLII) 15. It was the testimony A. evidence of the L. T. he served the Tenants with the N12 notice as he had received similar notice from his L. A. had to move out. However, he said his L. withdrew the application but he decided to pursue his N12 notice as he had lost his job A. moving into this rental unit was more affordable. 16. The L. testified T. he has not listed the unit nor the residential complex F. sale nor F. rent A. has not rented the unit to any other tenants. 17. The L. testified T. he moved into the rental unit around January 8, 2022 A. acknowledged T. he does not stay at the rental unit on a regular basis. He said T. his job requires significant A. extended travel A. he finds it practical to stay at this girlfriend’s home A./or his parents’ home in the Toronto area. 18. On the date of the hearing, the T. participated from Dallas where he was staying with his family. Although he did not have access to physical documentation, he did provide evidence by way of bank details A. the L.’s name A. address F. this rental unit was identified. He said T. he has also transferred his insurance A. other services to reflect this unit as his residence. The L. acknowledged T. his drivers’ licence shows the address of his parents’ property. 19. Based on the facts presented at the hearing A. on a balance of probabilities, I find T. the L. successfully rebutted the presumption under s.57(5) of the Act. 20. I further find T., based on the evidence before me, the L. served the N12 notice in good faith because he moved into the unit A. although he does not stay at the rental unit with any consistency, he has not entered into a new tenancy agreement nor has listed the unit F. rent F. the complex F. sale nor has the L. commenced any renovations. 21. Accordingly, the T.’s applications must be dismissed. 22. This O. contains all of the reasons F. the decision within it. No further reasons shall be issued. It is ordered T.: 1. The Tenants’ application is dismissed. July 28, 2023 Date Issued Dana Wren Member, L. A. T. Board O. Page 3 of 4  File Number: LTB-T-007509-23 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. 2023 ONLTB 53057 (CanLII) O. Page 4 of 4