LTB Order LTB-T-048704-22

O. under Section 57 Residential Tenancies Act, 2006 Citation: B. v C., 2023 ONLTB 56707 2023 ONLTB 56707 (CanLII) Date: 2023-08-29 File Number: LTB-T-048704-22 In the matter of: 18 Sympatica Crescent Brantford Ontario N3P1G4 Between: B. B. E. B. T. A. J. C. L. K. R. B. B. A. E. B. (the 'T.') A. F. an O. D. T. J. C. A. K. R. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on July 25, 2023. The L. A. the T. attended the hearing. The L. were represented by C. Boyed A. the T. represented themselves. Preliminary Issues: Legal Counsel: On the morning of the hearing, the T. advised T. they wanted to speak to TDC A. T. they would prefer to hold the matter down until one became available. The hearing was held down A. was heard at 10:36am. When asked, the T. advised T. they did not seek legal counsel prior to the hearing as T. they hoped to have the opportunity to do so at the hearing. On review of the Boards file, we note T. the T.’ application was filed in August 2022 A. T. a copy of the Notice of Hearing was received by the T. in mid-June 2023. we therefore find T. the T. had more than sufficient time to seek legal advice prior to the hearing date but chose not to do so, as such, we proceeded with the hearing. Determinations: 1. The issue to be determined by the Board is whether the L. gave the T. a notice of termination in bad faith. F. the reasons T. follow, we find T. the T. did not prove the allegations contained in the application on a balance of probabilities. Therefore, the application is dismissed. O. Page 1 of 6  File Number: LTB-T-048704-22 Background 2. The residential complex is a one story building with a basement. The property has two self- contained units with their own kitchen A. bathroom, the main floor has two bedrooms A. the basement has one bedroom. 2023 ONLTB 56707 (CanLII) 3. Although the property has two self-contained units with each tenant taking ownership of each, it was agreed T. the T. held one single lease together F. the entire property. 4. It was uncontested T. the Landlord provided the T. with an N12 Notice of Termination F. own use. It was the T. testimony T. when the L. served the N12 notice, the Landlord J. C. stated T. it was due to his deteriorated relationship with Ms. K. R., which necessitated him moving into the rental unit F. his own use. 5. It was agreed T. the T. signed an N11 notice to terminate the Tenancy after receiving an N12 notice with a termination date of November 30, 2021 F. personal use of the property by the Landlord, A. vacated the property on November 13, 2021. 6. It was uncontested T. in July of 2022 the L. re-rented the basement or lower unit of the rental unit to P. Vanderveer (‘PV’). 7. It is the T. position T. the Landlord acted in bad faith as they do not believe T. there was ever a deterioration of the Landlord’s relationship causing him to leave his former home A. it was also bad faith because it was uncontested T. a new tenant, PV moved into the basement portion of the rental unit in July 2022. 8. The remedies requested by the T. in their application are: $12,600.00 F. rent differential, $749.19 in moving expenses, $15,000.00 in general compensation, the $53.00 application filing fee A. any remedy the Board feels appropriate. 9. The T. submitted T. there is a presumption of the L.’ bad faith, as it was agreed T. the rental unit was re-rented to P Vanderveer, 8 months after the T. vacated the unit. Legislation & Analysis 10. Section 57 of the Residential Tenancies Act, 2006 (the ‘Act’) provides T. with a remedy if a L. gives a notice of termination in bad faith, the former tenant vacates the rental unit as a result of the notice, A. the person who is supposed to occupy the unit does not do so within a reasonable time after the former tenant vacates. Bad Faith Allegation 11. On an application to the Board, the person who alleges a particular event occurred has the burden of proof to establish T. it is more likely than not T. their version of events is true. In this application, the burden typically falls on the tenant to establish T. the notice of termination was served in bad faith. O. Page 2 of 6  File Number: LTB-T-048704-22 12. Subsections 57(5) A. 57(6) of the Act establish a rebuttable presumption of bad faith on the following ground: 57(5) F. the purposes of an application under clause (1)(a) A. (c), 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 2023 ONLTB 56707 (CanLII) during the period described in subsection (6) the L., … (b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant; … 57(6) The period referred to in subsection (5) is the period T., (a) begins on the day the L. gives the notice of termination under section 48; A. (b) ends one year after the former tenant vacates the rental unit. 13. On the basis of the uncontested evidence before us, we find T. the L. served the T. with an N12 notice of Termination A. T. the T. vacated the rental unit on the basis of T. notice. 14. We also find, based upon, the agreed evidence, T. the Landlord leased the lower portion of the rental unit to PV in July 2022, 8 months after the T. vacated pursuant to the termination notice, creating a rebuttable presumption T. the L. served the N12 notice in bad faith. In other words, in this case, the burden falls on the L. to establish T. they did not serve the notice of termination in bad faith. Presumption of Bad Faith 15. As the L. re-rented the rental unit within 1 year of the T. vacating the property, section 57(5) of the Act shifts the burden to them to establish T. there was good faith in the termination of the tenancy. 16. As noted above, the L. is presumed to have given the N12 in bad faith because he entered into a new tenancy agreement after the T. moved out. However, F. the reasons T. follow, we find T. the L. have rebutted the presumption A. established T. the N12 was not given in bad faith. 17. The Landlord J. C. (JC) disputed the application of the presumption of bad faith. He testified T. at the time the Notice of Termination was given to the T., he had full intention of residing in the rental unit as his relationship with his common-law-spouse, Ms. Reynold deteriorated in February 2021, A. they had decided T. he would leave their shared home A. move into his own home, the rental unit. 18. The L. testified T. while JC waited F. the Tenant’s to vacate, he continued to live with Ms. R., at her 5 Brian Crest home in a separate bedroom A. T. because the T. vacancy date was taking long, Ms. R. sold 5 Brian Cres A. purchased 86 O. Page 3 of 6  File Number: LTB-T-048704-22 Mission Rd in Brantford, where JC also moved to, but lived separately from Ms. R., in the basement. 19. When the T. questioned the L. as to why they were still spending time together after the breakup, Ms. R. testified T. JC has a great relationship with her 2023 ONLTB 56707 (CanLII) children, throughout their long-term relationship, since they were 9 years old A. is a father figure F. her daughters. 20. The L. further testified T. Mr. C. moved into the rental unit at the end of November 2021 as he needed time to repair some damage left by the T. A. T. he moved his items into the rental unit gradually, by van A. car. 21. JC testified T. he did move in A. resided in the rental unit, his car was parked there A. T. after some time there was a change in his circumstances as A. Ms. R. reconciled their relationship sometime between February 15-20, 2022 A. he moved back to Mission Road with Ms. R. after T. date. 22. JC testified T. he continued to use the upstairs unit as an office after February 2022 A. T. the basement unit was left vacant from February 2022 to July 2022 when Ms. Vanderveer was rented the unit. Ms. R. also provided evidence A. confirmed the statements made by Mr. C.. 23. The Tenant testified T. they did not believe T. the Landlord J. C. separated from his partner A. moved into the rental unit at any time. The Tenant testified T. their two witnesses never saw lights on in the rental unit, did not see the L.’ cars in the driveway A. never saw the Landlord move in to take occupancy of the rental unit. On this basis, they believe the Landlord did not take possession of the rental unit within a reasonable period of time. 24. In support of their case, the T. provided witnesses who reside on the street of the rental unit, P.M Vanderveer (‘PV’) who moved into the basement unit of the property, J. Pedley (‘JP) a next-door neighbour A. R. Dibaldi (‘RD’) who is the superintendent of the apartment complex on the same street as the rental unit. 25. It was undisputed T. PV moved into the property on July 1, 2022, A. currently occupies the lower unit of the T.’ rental unit A. pay’s $1,300.00 a month in rent. 26. RD testified T. she lives at 18 Sympatica Cres F. 12 years. She stated T. she has never spoken to the L. but is aware T. the L. drives a gold SUV A. a red van A. T. until PV moved into the lower unit there were never any lights on at the property A. no vehicles were parked in the driveway overnight A. or on weekends. In cross examination, RD advised T. it was possible T. the L. could have moved in while she was at work or while she was not looking out the windows. JP testified T. he is a Superintendent of a residential complex located at 15 A. 17 Sympatica Cres A. also resides in a unit at 15 Sympatica, which does not face the rental unit. He testified T. he can see the rental unit from across the street from the inside of other residents’ units, when he is in those units performing his work duties or performing landscaping. He testified T. from November 2021 to July 2022, no one lived on the property as there were no cars O. Page 4 of 6  File Number: LTB-T-048704-22 parked overnight A. the lights were on in the property; A. T. when it snowed, the driveway did not appear to have been driven on, there were never any tire tracks. In cross examination, JP advised T. he does not see the rental unit at night A. he was unable to provide dates of when he noted the lights were off in the unit or when snow had or had not been removed from the property. He also stated T. it was possible F. the Landlord to 2023 ONLTB 56707 (CanLII) move into the property when he was not looking at the property. 27. We are satisfied on a balance of probabilities T. the L. had a genuine good faith intention to occupy the rental unit when they served the T. the N12 notice. We are persuaded by the Landlord’s evidence T. he intended to move into the rental unit because he A. his common law partner had separated. We further accept his evidence T. he moved into the unit shortly after the T. vacated A. moved out in February 2022 when he reconciled his relationship with K. R. A. after T. time as he had moved back in with Ms. R., he rented out the basement part of the unit in July 2022. 28. We find T. there is sufficient evidence T. rebuts the presumption of bad faith as there was a change of circumstances in the Landlord’s life which led to him vacating the rental unit, after he moved in, A. led to him renting the basement of the unit to another Tenant. We find T. the T. failed to provide evidence T. established a bad faith intention or T. failed to rebut the L.’ evidence regarding the change of life circumstances. 29. Therefore, the burden of proof remains with the T. to establish T. the requirements of s. 57(1)(a) of the Act have been met. Subsection 57(1)(a) T.’ Burden of Proof 30. As the rebuttable presumption has been successfully addressed by the Landlord, it is the T.’ obligation to prove on a balance of probabilities the 3 elements contained in subsection 57(1)(a) of the Act, as outlined above. 31. The second A. third elements of subsection 57(1)(a) are uncontested; the parties agree T. the T. moved out due to the N12 notice A. it was uncontested T. the Landlord re-rented the rental unit, due to a change of life circumstances. 32. The burden is on the T. to establish the first element of subsection 57(1)(a), T. the Landlord gave the N12 notice in bad faith. 33. F. the reasons set out above, A. based on the evidence before us, we find the evidence of the Landlord to be straightforward, detailed A. consistent; the evidence was presented without hesitation A. was credible T. there was a relationship breakdown T. initiated the request to recover possession of the rental unit. We find T. the L.’ explanations were reasonable A. on a balance of probabilities T. the L. provided the N12 notice in good faith but T. circumstances legitimately changed. 34. As the T. did not establish the bad faith of the L. in serving the N12 notice, the application must be dismissed. O. Page 5 of 6  File Number: LTB-T-048704-22 It is ordered T.: 1. The T. application is dismissed. August 29, 2023 2023 ONLTB 56707 (CanLII) Date Issued Mayra Sawicki Member, Landlord A. Tenant Board Nicola Mulima Vice Chair, Landlord A. Tenant 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 6 of 6