LTB Order LTB-T-049322-22

O. under Section 57 Residential Tenancies Act, 2006 Citation: P. v R. (CHANDIRAMANI), 2023 ONLTB 68653 2023 ONLTB 68653 (CanLII) Date: 2023-10-30 File Number: LTB-T-049322-22 In the matter of: BASEMENT, 2468 RIDEAU DRIVE OAKVILLE ON L6H7R1 Between: J. P. T. A. J. R. (CHANDIRAMANI) L. J. P. (the 'T.') A. F. an O. D. T. J. R. (CHANDIRAMANI) (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on September 11, 2023. The L., the L.’s Legal Representative, Lisa Barder, A. the T. attended the hearing. The L. called Farideh Shabamilalani as a witness. Determinations: 1. The T. brought a T5 application claiming the L. gave her an N12 notice of termination in bad faith. The Application was filed on April 12, 2021. The T. seeks the payment of general compensation in the amount of $1,100.00 from the L.; rent differential in the amount of $7,800.00, as well as expenses related to moving. 2. Pursuant to section 57(1) of the Residential Tenancies Act, 2006 (“Act”), the Board may make an O. against a L. if, on application by a former T. of a rental unit, the Board determines T. the L. gave a notice of termination under section 48 in bad faith, the former T. vacated the rental unit as a result of the notice, A. no person referred to in clause 48 occupied the rental unit within a reasonable time after the former T. vacated the rental unit. 3. To be successful in their T5 application, the T. must establish all three of the requirements of subsection 57(1)(a) on a balance of probabilities: First, T. the L. gave a notice of termination under section 48 of the Act (the N12 notice) in bad faith; O. Page 1 of 5  File Number: LTB-T-049322-22 Second, T. the T. vacated the rental unit as a result of the N12 notice; Third, T. the person named in the N12 notice did not move into the rental unit within a reasonable time after the T. vacated. 2023 ONLTB 68653 (CanLII) 4. F. the reasons outlined below, I find T. the T. has proven, on a balance of probabilities, T. the notice of termination was given in bad faith. 5. The L.’s Form N12 was served by the L. on the T. in late February 2021, with a termination date of April 30, 2021. The Form N12 stated T. the L.’s parent was going to move into the rental unit. 6. The T. testified T. following receipt of the Form N12, she vacated the unit on April 12, 2021. 7. The T. testified T. she believed the main reason she was given the N12 was because her niece had started living with her due to the niece’s mental health issues. Further, the T. testified T. the L. had requested, in a series of text messages, T. the T. pay $30.00 a day F. any guest who stayed longer than 3 days A. T. the L. refused to allow the T. to ever have anyone else move into the unit. 8. The T. further submitted a voice recording T. was taken on or around June, 20, 2023 of a telephone conversation between her A. the L. in which the L. states in part “she goes back A. forth. She stays here every couple of weekends… It doesn’t mean she has to stay here permanently.” The L. goes on to state: “So what if she’s not living there, she comes back A. forth. So what if she’s not living there, she comes back A. forth. She comes on weekends. It doesn’t mean she has to live there” 9. After vacating the unit, the T. states T. she contacted two of the neighbours who lived across the from the rental unit A. both neighbours stated T. they had not seen an elderly lady living at the unit. While this evidence is hearsay, the L. did not dispute T. his mother does not live in the unit full-time. 10. The L. testified T. previously, his mother was residing full time with his sister but his sister was no longer able to care F. his mother full time A. they could not afford to put her into a nursing home. Therefore, he A. his sister started sharing the responsibility of caring F. their mother. 11. The L. testified T. he brings his mother in through the garage A. down to the basement unit when they return from errands A. medical appointments A. so the neighbours would not have seen his mother often. The L. further testified T. she had not moved in F. about a month as he had to do some repairs to the unit to make it suitable F. his mother to live in the unit. 12. The L.’s witness, Farideh Shabamilalani, a PSW F. the L.’s mother, testified T. she has been attending the unit to care F. the L.’s mother approximately 25 hours a week since June 2021 A. this was done mostly on weekends. O. Page 2 of 5  File Number: LTB-T-049322-22 13. The L. submitted T. there was no law T. required his mother to live in the unit everyday of the month A. T. because his mother is technically the owner of the house, she can come A. go as she pleases. 2023 ONLTB 68653 (CanLII) 14. To the extent T. the L. submits T. occasional use of the rental unit constitutes “residential occupation” within the meaning of section 48 of the Act, I disagree. 15. The Board’s Interpretation Guideline 12: Eviction F. Personal Use, Demolition, Repairs A. Conversion refers to a number of Board A. court decisions in which occasional or infrequent use has been held not to constitute residential occupation within the meaning of section 48 of the Act. 16. In MacDonald v. Richard, [2008] O.J. No. 6076, the Divisional Court held T. the Board had not erred in finding T. a temporary 4-month occupancy did not constitute residential occupation. In Kohen v. Warner, 2018 ONSC 3865, the L.’s son wished to occupy the rental unit on the weekends during the school year A. full-time in the summer. The Divisional Court similarly confirmed T. the Board had not erred in concluding T. this was occasional occupation T. did not satisfy section 48. Guideline 12 refers to a number of other Board cases drawing similar conclusions. 17. Board decisions are not binding on me, but they can offer helpful guidance. There is a consistent line of Board decisions interpreting A. applying MacDonald as meaning T. where a L.'s intended use of the rental unit is to live in it temporarily or on an occasional basis, the L.'s intended use is not "residential occupation" F. the purposes of s.48 of the Act. I see no reason to depart from this line of case law. 18. These cases generally addressed whether the L. required the rental unit F. the purposes of residential occupation. This application, however, is F. an O. T. the L. served a notice of termination in bad faith. To be successful, the T. must establish, among other things, T. the L. served the N12 in bad faith A. also T. his mother did not occupy the rental unit within a reasonable period of time. In my view the T. has established both. 19. Here, the L. is representing his mother’s residential occupation as temporary A. occasional. I find T. this proposed temporary A. intermittent use of the rental unit does not satisfy the “residential occupation” requirement of section 48. In my view, the T. has proved its case because the L.’s N12 sought possession F. a purpose other than residential occupation within the meaning of section 48. T. also means T. when his mother “moved in”, they did not “occupy” F. he unit within the meaning of section 57(1)(a). To find otherwise would, in my view, ignore legislative intent T. good faith N12s be served F. the purpose of “residential occupation”. F. these reasons, I am satisfied tha the T. has proven its case. Remedies 20. The T. claimed a rent differential between her former rental unit A. her new unit. The T. established on the balance of probabilities T. the rent differential between his O. Page 3 of 5  File Number: LTB-T-049322-22 current “new” accommodation A. the rental unit was $650.00 per month. I find T. the units are comparable A. the differential was established through the T.’s evidence. Therefore, I will O. the L. to pay the T. $7,800.00 F. the increased rent T. the T. has incurred or will incur F. a one-year period after the T. moved out of the rental unit because of the L.’s N12 notice. 2023 ONLTB 68653 (CanLII) 21. The T. also claimed moving expenses. The T. established on the balance of probabilities, through receipts entered into evidence, T. she had incurred moving expenses of $1,391.37. I find these expenses to be reasonable. Therefore, I find T. the L. must pay the T. $1,391.37 F. the reasonable out-of-pocket moving expenses T. the T. has incurred as a result of the L. serving a notice of termination in bad faith. 22. The T. claimed lost wages in the amount of $400.00 from taking time off work to move. This was substantiated by evidence presented at the hearing. I find this reasonable A. warranted as this was incurred as a direct result of the T. having to move out of the rental unit. I find T. the L. must pay the T. $400.00 F. lost wages. 23. While the T. made a claim F. general compensation F. two weeks of lost wages as a result of contracting COVID, I did not find T. the T. led sufficient evidence to support her claim T. she contracted COVID as a result of the L. serving the notice of termination in bad faith. As she failed to meet the burden of proof to establish entitlement to general compensation, this claim is denied. 24. This O. contains all of the reasons in this matter A. no further reasons will be issued. It is ordered T.: 1. The total amount the L. shall pay the T. is $9,644.37. This amount represents: • $7,800.00 F. increased rent the T. has incurred F. the one-year period from May 2022 to April 2022. • $1,391.37 F. the reasonable moving, storage A. other like expenses T. the T. has incurred as a result of having to move out of the rental unit. • $400.00 F. lost wages. • $53.00 F. the cost of filing the application. 2. The L. shall pay the T. the full amount owing by November 15, 2023. 3. If the L. does not pay the T. the full amount owing by November 15, 2023, the L. will owe interest. This will be simple interest calculated from November 16, 2023 at 7.00% annually on the balance outstanding. O. Page 4 of 5  File Number: LTB-T-049322-22 October 30, 2023 Date Issued Colin Elsby Member, L. A. T. Board 15 Grosvenor Street, Ground Floor 2023 ONLTB 68653 (CanLII) 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 5 of 5