LTB Order LTB-T-051147-22

O. under Section 57 Residential Tenancies Act, 2006 Citation: B. v K. S. A., 2023 ONLTB 75618 2023 ONLTB 75618 (CanLII) Date: 2023-11-16 File Number: LTB-T-051147-22 In the matter of: 95 Mccann Crescent Bradford Ontario L3Z0M5 Between: A. B. T. A. E. K. S. A. L. A. A. S. E. A. B. (the 'T.') A. F. an O. determining that E. K. S. A. A. A. A. S. E. (the 'L.') gave a notice of termination in bad faith. This application was heard by videoconference on August 21, 2023. The L., the L.’s representative T. Sandukhchyan, the T. E. K. S. A. A. the T.’s representative B. Dilisi attended the hearing. Determinations: 1. The T. brought a T5 Application claiming the L. gave them an N12 notice of termination in bad faith. 2. The T. seeks expenses related to moving A. storage in the amount of $820.00; general compensation in the amount of $24,000.00; A. general damages in the amount of $10,000.00. 3. Pursuant to section 57(1) of the Residential Tenancies Act, 2006, the Board may make an O. against a L. if, on application by a former T. of a rental unit, the Board determines that 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. 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, that the L. gave a notice of termination under section 48 of the Act (the N12 notice) in bad faith; O. Page 1 of 4  File Number: LTB-T-051147-22 Second, that the T. vacated the rental unit as a result of the N12 notice or Board O. based on the N12 notice; Third, that the person named in the N12 notice did not move into the rental unit within a reasonable time after the Tenants vacated. 2023 ONLTB 75618 (CanLII) 4. F. the reasons outlined below, I find on a balance of probabilities the Form N12 was served in bad faith, the T. vacated the rental unit as a result of the Form N12 received, A. that the Landlords did not move into the rental unit within a reasonable time thereafter. 5. It is not disputed, the Landlords served the T. with a form N12 on October 21, 2021 with a termination date of December 20, 2021. Due to a procedural defect in the initial notice A. following some discussion with the T., a second form N12 was served on the T. on October 28, 2021, with a termination date of January 1, 2022 (the “Form N12”). The Form N12 stated the Landlords were going to move into the rental unit. 6. While the initial burden falls on the T. to establish that the notice of termination was served in bad faith, it is presumed, unless the contrary is proven on a balance of probabilities, that a L. gave a notice of termination under s. 48 in bad faith if, within one year after the former T. vacates the rental unit, the L. advertises the rental unit F. rent A./or enters into a tenancy agreement in respect of the rental unit with someone other than the former T.. Here, approximately one month after the T. vacated the rental unit, the Landlords listed the rental unit F. sale A. the property was sold on March 10, 2022, with a closing date of May 2022. The Landlords did not move into the rental unit, as initially purported. 7. F. the reasons that follow, I find on a balance of probabilities that the Form N12 was given in bad faith A. that the T. vacated the rental unit as a result of this notice. 8. The timeline of events in this case is important in ascertaining the Landlords’ intent. The L., E. K. S. A. (EA) testified the Landlords’ entered into an agreement to sell their family residence in the fall of 2021. The closing date F. the sale of the Landlords’ personal residence was January 4, 2022. 9. The T. vacated the rental unit on January 30, 2022. On November 25, 2021 - approximately 4 weeks after the Form N12 was served upon the T. A. approximately 2 months prior to the T. vacating the rental unit - the Landlords signed a one-year residential lease, commencing January 1, 2022 (the “November Lease”). EA testified the T.’s changing intentions regarding when they would be vacating the rental unit resulted in the Landlords entering into the November Lease so they had a place to live when their family residence was sold on January 4, 2022. The T. was not made aware of the November Lease, prior to vacating. 10. While the Landlords renewed the rental unit mortgage F. a 5-year term in May 2021 thus suggesting the Landlords intended to keep the rental unit, when considered alongside the balance of other evidence presented, I find on a balance of probabilities the Landlords served the Form N12 in bad faith. O. Page 2 of 4  File Number: LTB-T-051147-22 11. After the T. vacated the rental unit on January 30, 2022, EA testified the Landlords reached out to their new L. in O. to end the November Lease early. EA testified this request was refused, thus causing the Landlords financial distress. According to EA, the Landlords thus decided to sell the rental unit in late February/early March 2022 due to 2023 ONLTB 75618 (CanLII) the financial pressure of being forced to “stay in” their $3500/month November Lease A. pay the mortgage at the rental unit. 12. I do not find the Landlords’ reason F. not moving in the rental unit believable. While not determinative, there was no correspondence produced in support of the alleged discussion between EA A. her new L.. The Landlords also sold their family residence in January 2022 A. undertook renovations at the rental unit almost immediately after the T. vacated the rental unit, presumably at some financial cost (although EA indicated that her spouse did most of the work). Furthermore, notwithstanding the fact the L. had entered into the November Lease, the L. did not advise the T. of the possibility they could remain in the rental unit F. a longer period of time A. thus, offset some of the financial burden. The decision to sell the rental unit at the “end of February/ beginning of March (2022)” was also only one month after the T. vacated the rental unit. The Landlords also did not provide any convincing evidence of alternative attempts to offset the purported financial burden, such as by seeking a shorter lease term, or finding a sublet…etc., thus making their purported change in circumstances less believable. 13. I also find on a balance of probabilities that the T. vacated the Rental Unit as a result of the Form N12. It is not disputed the T. purchased a property A. moved into this property when the T. vacated the rental unit on January 30, 2022. The T. testified he entered into an agreement of purchase A. sale F. the property after being given the Form N12. The L. countered there was a mutual intention to end the tenancy, because both the T. A. Landlords entered into purchase A. sale transactions F. their respective properties. Upon hearing the evidence, I find the T.’s evidence more believable that he had been “passively” looking to purchase a property but ultimately entered into a purchase agreement after being given the Form N12. It is simply not believable the L. would serve a Form N12 A. pay the T. the required compensation, if the Landlords believed the T. had purchased a property A. was going to be ending the lease regardless. 14. As such, F. the reasons noted, I find on a balance of probabilities the Form N12 was served in bad faith, the T. vacated the rental unit as a result of the Form N12 received, A. that the L. did not move into the rental unit within a reasonable time thereafter. Remedies 15. The next issue to be determined is remedies. The T. seeks expenses related to moving A. storage in the amount of $820.00; general compensation in the amount of $24,000.00; A. general damages in the amount of $10,000.00. 16. The T. produced a receipt F. moving expenses in the amount of $450.00, F. which the T. should be reimbursed as it is directly attributable to the eviction. O. Page 3 of 4  File Number: LTB-T-051147-22 17. The T. also seeks $24,000.00 in general compensation A. $10,000.00 in general damages. In this regard, the T. indicated he was forced to move earlier than he originally intended, A. states, he was forced to live in the newly purchased property while renovations were undertaken. In this regard, the T. testified he was forced to “live in 2023 ONLTB 75618 (CanLII) a room” F. some time after move-in because the home was in “terrible condition”. While I am satisfied the T. suffered unnecessary inconvenience as a result of the forced relocation from their home A. neighbourhood, the overall impact/hardship of the relocation upon the T. lacked particulars. The T. did not produce any documentation or photographs that speak to the condition of the newly purchased property A. purported unfavourable living conditions the T. was forced to live in. Moreover, while the T. indicated he was in the process of selling one of his properties in Windsor, Ontario A. was only “passively” looking F. a property to purchase with the Form N12 was served, very little evidence was given as to impact, if any, the eviction had on either the T.’s sale of the Windsor property, or the purchase decision. I find an award of $1,500.00 F. general compensation is warranted in the circumstances. It is ordered that: 1. The total amount the L. shall pay the T. is $2,003.00. This amount represents:  $1,500.00 F. general compensation;  $450.00 F. the reasonable moving, storage A. other like expenses that the T. has incurred as a result of having to move out of the rental unit; A.,  $53.00 F. the cost of filing the application. 2. The L. shall pay the T. the full amount owing by November 27, 2023. 3. If the L. does not pay the T. the full amount owing by November 27, 2023, the L. will owe interest. This will be simple interest calculated from November 28, 2023 at 7.00% annually on the balance outstanding. November 16, 2023 Date Issued Peter Nicholson 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 4 of 4