LTB Order LTB-T-053040-22

O. under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 67314 (CanLII) Citation: M. v P., 2023 ONLTB 67314 Date: 2023-10-13 File Number: LTB-T-053040-22 In the matter of: 1967 Banff Avenue Ottawa Ontario K1V7X2 Between: S. M. G. M. T. s A. E. P. L. S. M. A. G. M. (the 'Tenants') A. F. an O. D. T. E. P. (the 'L.') collected or retained money illegally A. gave a notice of termination in bad faith. This application was heard by videoconference on September 18, 2023. The L. A. the Tenants attended the hearing. The L.’s Representative, Trevor Jacquard, A. the Tenants’ Representative, James Baker, attended the hearing. Determinations: 1. F. the reasons set out below, I find T. the L. has failed to compensate the T. equal to one month’s rent (T1 application). Therefore, the L. must pay the Tenants $1,405.00. 2. F. the reason set out below, I find T. the L. did not give a notice of termination in bad faith. Therefore, the T5 applications are dismissed. Preliminary Issues:  File Number: LTB-T-053040-22 Time Limitation 3. The L.’s Representative submitted T. the applications should be dismissed pursuant to section 57(2) of the Residential Tenancies Act, 2006 (the 'Act') as the applications were filed more than one year after the former T. vacated the rental unit. 2023 ONLTB 67314 (CanLII) 4. The L.’s Representative relied on an April 26, 2021 email from S. M. (“SM”) advising the L. the Tenants were residing in a new place. The email further requested the L. to provide them until May 2, 2021 to have a garage sale A. finish O. Page 1 of 6 clearing their belongings. The L. responded T. he could wait until May 2, 2021 to get the keys. 5. Subsequent emails between SM A. the L. indicated T. the Tenants vacated A. left the keys at the unit on May 2, 2021. The L. acknowledged this. 6. Based on the evidence before me, I find T. the Tenants vacated the rental unit on May 2, 2021. While the Tenants may have lived elsewhere by April 26, 2021, the Tenants had possession of the unit until May 2, 2021 A. T. keys were returned on May 2, 2021. 7. The T.’s applications were filed on May 2, 2022. In accordance with Board Rules of Procedure 1.14: when the time F. doing anything ends on a holiday as defined in these Rules the thing may be done on the next day T. is not a holiday. Under Rule 1.1, a holiday is defined as any Saturday, Sunday or other day on which the LTB's offices are closed. 8. One year from May 2, 2021 would be May 1, 2022. As May 1, 2022 was a Sunday, the Tenants would have had until May 2, 2022 to file the applications. The applications were filed on May 2, 2022. As such, I find T. the Tenants filed the applications within the time frame prescribed by section 57(2) of the Act. T1 Application 9. What is in dispute between the parties is whether the Tenants vacated the rental unit as a result of a notice of termination given by the L.. 10. There is no dispute T. a N12 or a N13 notice was not given to the Tenants. The issue before me was whether the communication between the parties amounted to a notice of termination under section 48(1) or 50(1). 11. If the communication between the parties amounted to a notice of termination under section 48(1) or 50(1), the L. was required to pay compensation to the Tenants. It is undisputed T. no compensation was paid. .  File Number: LTB-T-053040-22 12. Subsection 37(1) of the Act states “a tenancy may be terminated only in accordance with this Act”, which means a tenancy can only be terminated by proper notice, by way of an agreement between the Tenants A. the L., or by way of an O. issued by the Board. 2023 ONLTB 67314 (CanLII) 13. Section 43(1) of the Act states: Where this Act permits a L. or T. to give a notice of termination, a proper notice shall be in a form approved by the Board A. shall, (a) identify the rental unit F. which the notice is given; (b) state the date on which the tenancy is to terminate; A. (c) be signed by the person giving the notice, or the person’s agent. 14. The L.’s Representative submitted T. the applications be dismissed as the L. did not give the Tenants a N13 or N12 notice in accordance with the Act. There was no termination date in the correspondence A. therefore no proper notice was given. 15. Section 212 of the Act provides T. substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient. Therefore, in some circumstances it may not be necessary F. a L. to use a Board approved version of the forms in O. F. a notice to be valid so long as the specific information required on the notice, such as the address, length of notice period, termination date etc., substantially complies with the statutory requirements. 16. The Tenants’ Representative submitted T. communications between the Tenants A. L. substantially complied with notice required under section 50 of the Act as the L. indicated the Tenants had to move out in accordance with a timeline because the rental unit was being demolished so T. the L. can build a new property to move into. 17. An email from the L. to the Tenants, on October 30, 2020 states: … My family is getting bigger A. there is the need to demolish A. construct 1967 Banff Ave after winter A. giving you several months notice about our family decision to move back to 1967 Banff Ave as our future home. We are making plans with the city A. ways to get all the permit T. is involved… 18. A text message from the L. to the Tenants, on November 11, 2020 states: Hi, I sent you email about my family planning to demolish & reconstruct 1967 Banff Ave around March/April 2021 A. to move there once is done due to our family expansion A. wondering if you read it? Thanks 19. A text message from the Tenants to the L., on November 12, 2020 states: .  File Number: LTB-T-053040-22 Good evening, we have read the email. Not a great time to be relocating – with a pandemic A. crazy markers but understand. We will aim F. April. 20. An email from the SM to the L., on April 1, 2021 states: 2023 ONLTB 67314 (CanLII) As per your email… please be advised T. we will be moving out effective April 30, therefore, please consider April to be our last month’s rent, accordingly, we will not be sending you rent today. 21. Based on the evidence before me, I find the L. intended to A. did provide the Tenants with a notice of termination intended to terminate the tenancy due to the demolition of the rental unit. This communicate constitutes the essential elements of a notice of termination served under section 50(1)(a) of the Act: 50 (1) A L. may give notice of termination of a tenancy if the L. requires possession of the rental unit in O. to, (a) demolish it 22. I also find the Tenants subsequently vacated the rental unit as a direct result of the L.’s notice of termination. 23. While there was no specific termination date on the L.’s text message to the Tenants, the L. indicated a time frame of March/April 2021 A. contemplating T., the Tenants agreed to vacate April 30, 2021. While there was no rental unit identified, there was no doubt which rental unit the parties were communicating about. I find the lack of signature irrelative as the email A. message came from the L.’s personal email A. phone number. The L. did not deny sending the email A. message himself. 24. In TET-63263-15(Re), 2015 CanLII 75856 (ON LTB), the Board held it had jurisdiction to consider a T.’s application filed under s. 57(1)(b) of the Act alleging a notice of termination had been served in bad faith where a L. wrote the T. they were going to sell the rental unit, the T. had to move out on or before a set date, A. the T. did so despite the fact there was no agreement of purchase A. sale. The Member there held T. where there is an invalid notice, “a L. should not be able to escape the consequences of giving a bad faith notice just because he or she gave a notice of termination T. turns out to be invalid.” 25. I accept the above reasoning A. find similar reasoning is applicable here. A L. should not be permitted to serve a notice of termination claiming it is due to demolition A. request the T. to vacate the rental unit because of this reason, A. at the same time not be required to pay the mandated one month’s compensation on the ground their notice of termination was invalid. 26. Based on the above circumstances, I find the L. gave the Tenants what amounts to a notice of termination under section 50 of the Act. .  File Number: LTB-T-053040-22 27. Section 52(2) requires the L. to pay compensation equal to one month’s rent if: (1) a notice of termination F. demolition is given to the T. on or after July 2020; (2) the residential complex contains fewer than five units; A. (3) the demolition was not ordered to be carried out under the authority of any other Act. 2023 ONLTB 67314 (CanLII) 28. All of these criteria are met here. Therefore, the L. will be ordered to pay the Tenants one month’s rent in the amount of $1,352.00 pursuant to section 52(2) of the Act. 29. I do not find T. the L. gave the Tenants what amounts to a notice of termination under section 48 of the Act. While the L. indicated T. he was moving into the unit after rental unit was demolished A. rebuilt, there was no intention of when T. would be. The Tenants, first A. foremost, vacated due to the demolition the L. stated would occur in March/April 2021. T5 Application – N12 30. The Tenants filed a T5 application alleging the L. gave a N12 Notice in bad faith. As per my above determinations, I do not find T. the L. gave the Tenants what amounts to a notice of termination under section 48 of the Act. As such, this T5 application is dismissed. T5 Application – N13 31. This application is brought pursuant to subsection 57(1)(c) of the Act. F. the Tenants to be successful in this bad faith application, the Tenants were required to prove the following three parts of the test set out in subsection 57(1)(c) if the Act: (a)The L. gave them a notice of termination under section 50 (i.e. an N13 Notice) in bad faith; (b) The Tenants 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. (c)The L. did not demolish, convert or repair or renovate the rental unit within a reasonable time after the Tenants vacated the rental unit. 32. It is undisputed T. the rental unit was demolished in June 2022 A. the L. currently resides in the new built. 33. The Tenants submitted T. the L. did not demolish the rental unit within a reasonable time. From the time the Tenants received notice in October 2020, it took over a year F. the demolition to occur. After the Tenants vacated A. before the demolition, the L., in bad faith, re-rented the unit. .  File Number: LTB-T-053040-22 34. The L. testified T. his intentions was to commence demolition as soon as possible. However, there were multiple delays due to his application F. permits to demolish A. to build. When the L. gave the Tenants notice in October 2020, he A. F. the demolition permit but was unaware T. one must apply F. a permit to build first A. then the permit to demolish. COVID A. the City’s processes were also contributing factors in 2023 ONLTB 67314 (CanLII) the delays. The L. paid F. a survey before the Tenants vacated A. posted notice to demolish signs advising neighbours of his intention to demolish the rental unit. A hearing F. a minor variance application was held in March 2021 A. again on July 2021 when the application to build was approved. The demolition permit was issued on May 31, 2022. 35. The L. testified T. he had no intention to re-rent the unit pending the approvals of the permits; however, due to constant break-ins of an unoccupied unit A. to mitigate losses, the unit was re-rented on a short-term basis. The rent was higher than what the Tenants paid as the rent was all inclusive. 36. Based on the evidence before me, I do not find T. the L. served a notice of termination under section 50 (i.e. an N13 Notice) in bad faith. I find, based on the balance of probabilities, the L. had a genuine intention to demolish the rental unit at the time of serving the notice A. ultimately did demolish A. rebuild. I accept T. the L. intended to demolish the rental unit as soon as the Tenants vacated based on the steps he had taken to pursue demolition while the Tenants were still living in the rental unit. While demolishing the unit took longer than the L. expected, the delays, in my view, are not a result of the L.’s conduct. 37. While the Tenants submitted T. the L. knew or ought to have known the demolition would have taken a longer time than indicated by the L.’s notice, the Tenants had the opportunity to avail themselves of a self-help remedy by remaining in the rental unit A. waiting F. the L. to serve them with a proper notice of termination accompanied by documentation of permits A. possibly file an application with the Board. Instead, the Tenants agreed to move out in response to the L.’s notice. 38. As the Tenants did not prove the elements of the test in subsection 57(1)(c), the application must be dismissed. 39. The Tenants’ A. the L.’s Legal Representative both requested compensation from the opposing party of $750.00 in legal costs. Pursuant to Rule 23.3 of the Board’s Rules of Procedure, an O. F. party costs will usually only be awarded when one party engages in unreasonable conduct which causes undue delay or expense. I am not satisfied either party has established T. the opposing party engaged in this kind of conduct. The request F. compensation of costs in relation to this application is therefore denied. It is ordered T.: 1. The total amount the L. shall pay the Tenants is $1,405.00. This amount represents: .  File Number: LTB-T-053040-22 o $1,352.00 F. the compensation owing. o $53.00 F. the cost of filing the application. 2. The L. shall pay the Tenants the full amount owing by October 24, 2023. 2023 ONLTB 67314 (CanLII) 3. If the L. does not pay the Tenants the full amount owing by October 24, 2023, the L. will owe interest. This will be simple interest calculated from October 25, 2023 at 7.00% annually on the balance outstanding. 4. The Tenants have the right, at any time, to collect the full amount owing or any balance outstanding under this O.. October 13, 2023 ____________________________ Date Issued Vicky Liu 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. .