LTB Order LTB-T-050853-22

O. under Section 57 Residential Tenancies Act, 2006 2023 ONLTB 62541 (CanLII) Citation: W. v S., 2023 ONLTB 62541 Date: 2023-09-19 File Number: LTB-T-050853-22 In the matter of: 3, 200 CANTIN STREET OTTAWA ON K1L6T1 Between: J. W. T. A. C. S. L. L. S. J. W. (the 'T.') A. F. an O. D. T. C. S. A. L. S. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on September 7, 2023 at 09:00 am. The L. Representative Jennifer Drago, the L. A. the T. attended the hearing. Preliminary Issues: 1. At the outset of the hearing the L. Representative requested the matter be adjourned as she had failed to submit to the Board A. provide to the T. the evidence A. submissions she intended to rely upon, citing technical issues with her email. 2. The T. objected to the request testifying T. he had been in contact with the L. Representative F. several months, T. the matter had been ongoing F. over a year A. T. even though he was self represented he had managed to submit A. provide his evidence on time A. expected the same of the L. Representative, a professional paralegal. In support of these statements the T. entered in evidence email correspondence between himself A. the L. Representative dating as far back as May 25, 2023, A. as recent as September 5, 2023. O. Page 1 of 6  File Number: LTB-T-050853-22 3. Having reviewed the email correspondence I noted T. on May 25, 2023 the L. Representative had indicated to the T. she had evidence to support the L.’s case. However, it appears T. the L. Representative made no effort to file or serve the evidence until shortly before the hearing A. she didn’t identify any technical issues to the T. affecting her attempted service until September 5, 2023. I note T. this was 2023 ONLTB 62541 (CanLII) after the T. had asked the L.’s Representative about lack of disclosure on September 3, 2023 via email in which he reminded her the deadline was September 1, 2023. 4. Putting this to the L. Representative, her only response was to reiterate having had technical issues A. T. she wasn’t obligated to provided disclosure any earlier than seven days prior to the hearing in accordance with the Board’s Rules of Procedure. 5. Having considered the circumstances before me, I denied the adjournment request. The L. had ample opportunity to submit evidence more than seven days prior to the hearing. The fact T. the L. Representative waited until the very last minute before attempting to serve the evidence A. then ran into technical issues is not a sufficient reason to adjourn the hearing given the prejudice the T. will suffer as a result of the delay. Further, the L. was present to give oral testimony at the hearing. 6. I therefore directed T. the matter would proceed as scheduled. Determinations: 7. As explained below, the T. proved the allegations contained in the application on a balance of probabilities. 8. The rental unit consisted of an apartment in a three story, multi-unit building which the T. moved into in 2010. On November 20, 2020, the L. gave the T. a N12 Notice to Terminate (N12 Notice) with a termination date of January 31, 2021. The T. did not move out A. the L. filed an eviction application resulting in a hearing before the Board on April 22, 2021 A. the issuance of Board O. EAL-93855-21, terminating the tenancy effective May 31, 2021 issued on May 18, 2021. 9. Following the issuance of T. O., the L. A. T. entered into an agreement to extend the Tenancy to June 30, 2021, A. the T. vacated on July 1, 2021. Copies of the agreement A. Board O. EAL-93855-21 were entered in evidence. 10. At the time the tenancy was terminated the monthly rent was $745.00 a month. 11. The T. filed their application on April 17, 2022 alleging the L. gave the N12 Notice F. their own use in bad faith. T. testimony A. evidence O. Page 2 of 6  File Number: LTB-T-050853-22 12. The T. testified T. after moving out of the rental unit he kept an eye on the property 2023 ONLTB 62541 (CanLII) A. noticed T. in the months T. followed T. a Saturn sedan was in the rental unit’s designated parking spot A. not the pick-up truck he knew the L. to drive. Following this, on April 5, 2022, he saw a F. sale sign in front of the building. Calling the realtor, he was told T. all the units in the building were under lease. He verified this by reviewing the online advertisement on or about April 6, 2022 which stated the building was an excellent investment opportunity A. T. his former unit could be rented F. $1,400.00 a month. A picture of the F.-sale sign A. a screenshot of the realtor listing, showing the building F. sale at $799,000.00 were entered in evidence. 13.The T. also testified T. when he reviewed the listening pictures of the interior of the rental unit showed ladies clothing A. footwear in the closets leading him to believe, in conjunction with what the realtor had told him, T. the L. never moved in. However, on cross examination he agreed T. the clothing could have been staged or belong to the L.’s girlfriend but he believed the L. never moved into the rental unit, reiterating the conversation he had with the realtor. 14. The remedies requested by the T. are as follows: a. Difference in rent F. a period of 12 months at $430.00 a month F. a total of $5,160.00. This was supported by a copy of his new lease agreement showing his new rent to be $1,175.00 entered in evidence; b. $40.00 in gas he used when moving from the rental unit to the new one; c. $600.00 in general compensation to cover the increased utilities as the rental unit included heat whereas the new unit does not. This was supported by hydro bills entered in evidence F. a period of 6 months at $100.00 a month; d. $847.50 in legal fees from the previous hearing, supported by an invoice entered in evidence. L. testimony A. evidence 15. The L. testified T. he did move into the rental unit as stated in the N12 Notice A. T. the clothing shown in the listing was T. of his girlfriend of time as was the Saturn sedan parked in the unit’s designated parking spot. He didn’t dispute T. he had listed the apartment A. building F. sale on April 5, 2022. O. Page 3 of 6  File Number: LTB-T-050853-22 16. It was his testimony T. due to the delay in gaining possession of the rental unit he incurred penalties from his mortgage lender A. the lender withdrew the mortgage after the first year A. he had depleted all of his savings. As a result, he listed the building F. sale only F. the period when he was trying to obtain a new mortgage A. took it off the market once he did on July 15, 2022. He then testified T. he would not have accepted 2023 ONLTB 62541 (CanLII) any offers T. required him to vacate the rental unit. 17. He further testified T. he had purchased the property with the intent of moving into the rental unit, his mother into another A. using the income from the remaining units to offset their cost of living. It was his position T. the fact he was still living in the rental unit gave credence to his argument T. there was no bad faith on his part as alleged by the T.. He further iterated this would all be supported by his evidence if it had been submitted. 18. On cross examination he testified T. it was the Realtor’s idea to state on the listing A. to respond to inquiries T. all the units were under lease to make the property more attractive to potential buyers but he was steadfast in his position T. he wouldn’t have accepted any offer T. required him to vacate the rental unit, even if it meant a substantial profit A. financial stability. 19.The L. Representative then submitted there was no bad faith on part of the L. submitting T. the L. did move into A. still resides in the rental unit in accordance with N12 Notice. Analysis 17. This “bad faith” application was filed pursuant to subsection 57(1)(a) of the Residential Tenancies Act, 2006 (the ‘Act') which requires the T. to prove each of the following on a balance of probabilities: (1) The L. gave a notice of termination under section 48 of the Act (i.e. F. L.’s own use) in bad faith; (2) The T. vacated the rental unit as a result of the notice; A. (3) The person listed in the N12 Notice did not occupy the rental unit within a reasonable time after the former T. vacated the rental unit. 18. Sections 57(5) A. 57(6) of the Act creates a rebuttable presumption T. an N12 was served in bad faith if a L. takes steps to re-rent or sell the rental unit within one year of the T. vacating. 19. In this case the L. did not dispute T. he served the N12 Notice A. T. the T. vacated because of T. N12 Notice. O. Page 4 of 6  File Number: LTB-T-050853-22 20. What he did dispute was the T.’s assertion T. did not occupy the rental unit after the 2023 ONLTB 62541 (CanLII) T. vacated, claiming T. the realtor only stated the unit was under lease to make it more appealing to potential buyers A. T. the clothing A. vehicle depicted was T. of his girlfriend at the time. I do not accept this explanation. I find it highly unlikely T. a licensed realtor would falsely tell potential buyers T. all units in the building were under lease only to disclose later T. T. was not the case. Furthermore, notwithstanding the disclosure issues, there was no reason why the L. couldn’t have had the realtor or his girlfriend at the time present to testify in support of his statement. Therefore, I am satisfied on the balance of probabilities T. the second A. third part of the test contained in subsection 57(1)(a) have been proven. 21. With respect to the remaining issue of bad faith, the L. didn’t deny listing the apartment building F. sale less than one years after the T. vacated. Accordingly, there is a rebuttable presumption T. the N12 Notice was served in bad faith. I find T. the L. has not rebutted this presumption. I don’t accept his explanation as to why he listed it F. sale or his statement T. he would had refused any offer T. would have required him to vacate. I think it more likely than not if his financial situation was as bad as he claimed he would have taken any reasonable offer. 22. Therefore, the T. has proven al three parts of the test contained in subsection 57(1)(a) of the Act A. what is left F. me to determine the remedies to award the T.. Remedies 22.Given the testimony A. evidence above, I find T. a rent differential of $5,160.00 is appropriate in the circumstances. Specifically, there was no dispute as to what the monthly rent was prior to when the T. moved out of the rental property, A. I accept the T.’s evidence as to his current rent. Further, given the presumption of bad faith A. the fact the rental unit was advertised as generating double the amount the T. last paid, I am satisfied T. the 12 months of rent differential requested is reasonable. 23. Similarly, I am satisfied T. the $600.00 difference in heat is also reasonable given the circumstances, the evidence submitted in support A. the fact the L., nor their Representative challenged this claim. 24. As to the remaining remedies sought, it is not the Board’s practice to reimburse legal fees, A. in the absence of a receipt or any other supporting documentation I am not satisfied T. awarding reimbursement F. the gas claimed is reasonable. It is ordered T.: O. Page 5 of 6  File Number: LTB-T-050853-22 1. The total amount the L. shall pay the T. is $5,760.00. This amount represents: • $5,160.00 F. increased rent the T. has incurred F. the one-year period from July 1, 2021, to June 30, 2022. 2023 ONLTB 62541 (CanLII) • $600.00 F. the addition expenses T. the T. has incurred to heat his new rental unit F. 6 months as a result of having to move out of the rental unit. 2. The L. shall pay the T. the full amount owing by September 30, 2023. 3. If the L. does not pay the T. the full amount owing by September 30, 2023, the L. will owe interest. This will be simple interest calculated from October 1, 2023 at 6.00% annually on the balance outstanding. September 19, 2023 ____________________________ Date Issued Kelly Delaney Member, L. A. T. 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