LTB Order LTB-T-009456-23

O. under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 71133 (CanLII) Citation: P. v A., 2023 ONLTB 71133 Date: 2023-11-08 File Number: LTB-T-009456-23 In the matter of: 2452 ROSEDROP PATH OSHAWA ON L1L0L2 Between: K. P. T. A. A. A. L. K. P. (the 'T.') A. F. an O. D. T. A. A. (the 'L.') collected or retained money illegally. This application was heard by videoconference on October 18, 2023. Only the T. attended the hearing. As of 1:20pm, the L. was not present or represented at the hearing although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the T.’s evidence. Determinations: 1. As explained below, the T. did not prove the allegations contained in the application on a balance of probabilities. Therefore, the application is dismissed. 2. The T.’s T1 application claims the L. gave them an N12 notice A. did not pay them compensation by the termination date. At the hearing, the T. acknowledged T. the L. never served them a formal written N12 notice A. only demanded them to leave by phone call A. WhatsApp text messages. 3. Section 49 of the Residential Tenancies Act, 2006 (the “Act”) states: 49 (1) A L. of a residential complex T. contains no more than three residential units who has entered into an agreement of purchase A. sale of the residential complex may, on behalf of the purchaser, give the T. of a unit in the residential  complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit F. the purpose of residential occupation by, O. Page 1 of 3 2023 ONLTB 71133 (CanLII) File Number: LTB-T-009456-23 (a) the purchaser; (b) the purchaser’s spouse; (c) a child or parent of the purchaser or the purchaser’s spouse; or (d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 4. Section 49.1 of the Act states: 49.1 (1) A L. 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, (a) the L. gives the T. a notice of termination of the tenancy on behalf of a purchaser under subsection 49 (1) or (2); A. (b) the notice of termination is given on or after the day the Protecting Tenants A. Strengthening Community Housing Act, 2020 receives Royal Assent. 5. While the L. never gave the T. a formal written N12 notice of termination, sections 202 A. 212 of the Act state: 202 (1) In making findings on an application, the Board shall 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 A. in doing so, (a) may disregard the outward form of a transaction or the separate corporate existence of participants; A. (b) may have regard to the pattern of activities relating to the residential complex or the rental unit. 212 Substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient. [emphasis added]  6. These sections were A. in CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB) at paras 4-6 to find T. an email was in substantial compliance with an N12 notice of termination under s. 48. However, this case involved an N12 notice F. the L.’s own use (rather than F. a purchaser’s use as in this application) A. the email was submitted into evidence so substantial compliance could be ascertained. 2023 ONLTB 71133 (CanLII) 7. The facts of this application are more analogous to CET-76967-18-AM (Re), 2018 CanLII 140427 (ON LTB) where the Board Member stated at paras 16-18: 16. Subsection 49(1) of the Act contemplated T. a L. has already entered into an agreement of purchase A. sale A. T. the purchaser (or spouse, child, parent, File Number: LTB-T-009456-23 spouse’s parent) requires the unit F. the purpose of residential occupancy before this type of notice can be served. 17. Given T., I am not satisfied T. the email the Tenants received amounted to a notice pursuant to this subsection. The email does not contain all the material elements required by subsection 49(1) of the Act. The email simply inferred T. the L. intended to sell the premises, given T. they state they can place a ‘F. sale’ sign A. show the unit to prospective buyers. 18. A cause of action cannot be established when there is no certain date as to when the sale of the property would be completed thus precipitating when the purchaser would require possession of the unit F. the purposes of residential occupancy. There is no starting point. It would be absurd to find T. a notice simply stating an intent to sell a rental unit is sufficient F. a bad faith argument under section 57 of the Act, as the unit may not sell F. years. [emphasis added] 8. While ss. 202 A. 212 were not considered in this case, it is clear T. the Member would not have found substantial compliance as there was merely an intention to sell the property rather than an actual purchaser who required possession of the rental unit. 9. I cannot apply ss. 202 A. 212 to this application because an intention to sell the rental unit cannot establish substantial compliance with section 49(1) of the Act which requires an actual purchaser who signed a purchase A. sale agreement A. requires possession of the rental unit. 10. In addition, the T. did not submit the L.’s text messages A. notice to leave into evidence. Therefore, I am unable to ascertain whether there is substantial compliance as in the first case cited above where the email was submitted into evidence. It is ordered T.:  1. The T.’s application is dismissed. November 8, 2023 ____________________________ Date Issued Elan Shemtov Member, L. A. T. Board 2023 ONLTB 71133 (CanLII) 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.