LTB Order LTB-T-048983-22

O. under Section 30 of the Residential Tenancies Act, 2006 2023 ONLTB 33742 (CanLII) Citation: K. P. v S. G., 2023 ONLTB 33742 Date: 2023-05-23 File Number: LTB-T-048983-22 In the matter of: 7, 169 Elm Ridge Drive Kitchener Ontario N2N1L7 Between: K. P. T. R. P. A. S. G. L. E. P., K. P., L. P., A. R. P. (the 'Tenant') A. F. an O. determining that S. G. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on April 20, 2023. The Tenant, K. P., A. the L. attended the hearing. The L.'s witness A. father, E. G. (EG), was also present at the hearing. L. P. A. E. P. are removed as parties to the application. Determinations: T.’ Evidence 1. The Tenant testified that in July 2021 they received a Notice to End your Tenancy Because the L., a Purchaser, or a Family Member Requires the Rental Unit (N12) from the L. with a termination date of September 30, 2021. The L. indicated in the notice that his father intends to move into the unit A. occupy it or at least one year. 2. The T., who moved into the unit on May 1, 2015, vacated the unit on August 31, 2021. They later discovered that the unit was placed on sale in March 2022 A. subsequently sold in May 2022. 3. The Tenant requested an O. F. the L. to pay the difference in rent F. a year, an amount which totaled $12,564.36 because while the rent F. the rental unit was $1,252.97, they currently pay $2,300.00 monthly. Both units contain three bedrooms A. while the listing F. the new unit showed it was between 1,100 to 1,500 sq. ft., the rental unit is described as between 1,100 to 1,199 sq. ft. in listings. The L. argued that the unit has also been described as 954 sq. ft. O. Page 1 out of 4 4. The Tenant also requested moving A. storage costs of $2,053.43 A. an O. F. the L. to pay a fine to the Board. L.’s Evidence 2023 ONLTB 33742 (CanLII) 5. The L. testified that he had no intention of selling the rental unit when his father, EG, moved in because EG was expected to reside in the unit F. up to 2 years. EG usually spends half his time in Canada A. the other half in Thailand. F. the past 10 years, EG has resided in China F. 5 years A. the last five in Thailand but is in Canada from 2 to 4 months a year between May A. August. 6. Following the death of EG’s mother on May 26, 2021, he returned to Canada on June 18, 2021 A. although he usually resided at his mothers’, a family conflict caused him to move into an Airbnb in August 2021. This conflict led the L. to serve the T. with the notice of termination. 7. The L. provided receipts showing EG resided in an Airbnb from August 1, 2021 to September 2, 2021 although he claimed EG stayed in the Airbnb until September 15, 2021. EG moved into the rental unit on September 15, 2021 A. stayed there F. eight months. 8. EG inherited vacant land from his mother which he originally planned to sell but decided to join the L. to construct properties on the land. The L. presented a land parcel document showing land transferred from EG to both their names in June 2022. 9. The rental unit was listed F. sale in March 2022 due to the significant change in the property market which meant that the rental unit had increased 30% in value. Also EG’s mother’s estate was settled in February 2022 A. EG was no longer required to be in the country as anything else could be done remotely. He returned to Thailand in June 2022. 10. EG testified that he intended to reside in the unit F. a year but moved out prior because he had plans with the L. to sell the unit A. the settling of his mother’s estate did not require him to remain in the country. Analysis 11. This application is brought pursuant to section 57 (1) of the Residential Tenancies Act, 2006 (the Act) which provides: Former tenant’s application where notice given in bad faith 57 (1) The Board may make an O. described in subsection (3) if, on application by a former tenant of a rental unit, the Board determines that, (a) the L. gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or O. made by the Board based on the notice, A. no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit. 12. There is no dispute that the T. in this case moved out of the rental unit because the L. gave them a notice of termination claiming that his father required possession of O. Page 2 out of 4  the rental unit F. a period of at least one year. According to the L., his father moved into the unit on September 15, 2021 but due to unforeseen circumstances, the rental unit was placed on sale in March 2022, less than a year later A. sold in May 2022. 13. On the issue of bad faith, section 57(5) of the Act provides that there is a presumption of 2023 ONLTB 33742 (CanLII) bad faith if the L. advertises the rental unit, or places the building that contains the rental unit, F. sale. Here, the rental unit was sold less than a year after the T. moved out. 14. Given the legal presumption, the L. must demonstrate that the N12 was served in good faith. The L. gave the notice of termination stating that his father intended to reside in the unit F. at least one year even though he knew that in the last 10 years, EG had not resided in the country F. more than four months at most. The claim that EG was required to stay in the country F. at least two years to settle his mother’s estate is unconvincing given the possibilities of getting things done remotely A. of course, EG’s living arrangements in the last 10 years. No evidence was provided to substantiate the claim that the estate was expected to close in two years. 15. Based on all the evidence, I am satisfied that the L. served the notice of termination in bad faith. I find on a balance of probabilities that the L., knowing EG could not possibly reside in the country F. a period of one year, set in motion a plan to evict the T. who had resided in the unit F. over six years, A. listed the unit F. sale in March 2022. 16. Having succeeded in proving the notice was given in bad faith, the T., pursuant to section 57(3) (4) of the Act are entitled to the difference ($1,047.03) between the rent F. the rental unit ($1,252.97) A. the rent F. the current unit ($2,300.00) F. a period of twelve months in the total amount of $12,564.36. I am satisfied from the evidence that the rental unit A. the current unit are comparable three-bedroom homes. 17. On the issue of moving A. storage costs, the Tenant requested $2,053.43, but a review of the invoices shows it includes utility bills. The L. will be ordered to pay $106.70 F. a U-Haul rental on August 31, 2021; $43.90 F. boxes purchased on July 28, 2021; $163.85 incurred F. waste removal services on August 26, 2021; A. $847.50 F. moving services on August 30, 2021 F. a total of $1,161.95 18. The T. requested that the L. be ordered to pay an administrative fine to the Board. This request will not be granted as it is hoped that the L. will not repeat this conduct in the future. It is ordered that: 1. The L. shall pay to the T. $12,564.36. This amount represents the increased rent that the T. incurred F. the period from September 2021 to August 2022. 2. The L. shall also pay to the T. $1,161.95, F. the reasonable out-of-pocket expenses that the T. incurred F. moving A. storage costs. 3. The Landlords shall also pay to the T. $53.00 F. the cost of filing the application. O. Page 3 out of 4  4. The total amount the Landlords owe the T. is $13,779.31. 5. If the L. does not pay the T. the full amount owing by June 3, 2023, the L. will owe interest. This will be simple interest calculated from June 4, 2023 at 6.00% annually on the outstanding balance. 2023 ONLTB 33742 (CanLII) May 23, 2023 Date Issued Jitewa Edu Member, L. 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 4 out of 4