LTB Order LTB-T-059420-22

O. under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 64981 (CanLII) Citation: B. v L. P., 2023 ONLTB 64981 Date: 2023-09-29 File Number: LTB-T-059420-22 In the matter of: 204, 746 LAFLN ST CORNWALL ON K6J3M5 Between: E. B. T. A. S. L. L. E. B. (the 'T.') A. F. an O. D. T. M. L. P. A. S. L. (the 'L.') collected or retained money illegally. This application was heard by videoconference on September 6, 2023. The L.’s Representative, Shannon KIekens, the L.’s Agent, Robert J. Edwards, A. the T., E. B. (“EB”) attended the hearing. Determinations: Preliminary Issues 1. The L. requested T. M. L. P. be removed as a party to the application. S. L. is the L. who received the T.’s payments A. M. L. P. is a direct employee of the L. A. should not be named as a L.. 2. The definition of L. pursuant to section 2 of the Residential Tenancies Act, 2006 (the “Act”) includes: (a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a T. who occupies a rental unit in a residential complex A. who permits another person to also occupy the unit or any part of the unit, (b) the heirs, assigns, personal representatives A. successors in title of a person referred to in clause (a), A. (c) a person, other than a T. occupying a rental unit in a residential complex, who is entitled to possession of the residential complex A. who attempts to enforce any of the  O. Page 1 of 5 2023 ONLTB 64981 (CanLII)  File Number: LTB-T-059420-22 rights of a L. under a tenancy agreement or this Act, including the right to collect rent; (“locateur”) 3. I do not find M. L. P. to be a L. in the context of this application A. as such, I have amended the application pursuant to section 187(2) of the Act which states 2023 ONLTB 64981 (CanLII) the Board may add or remove parties as the Board considers appropriate. 4. EB requested an adjournment to amend his T1 application. After speaking to T. Duty Counsel, EB submitted T. Reason 4 on the application may be more appropriate. The application was filed F. Reason 2. EB admitted T. Reason 4 would also not be completely accurate as the L. did not refuse to allow him to move into the rental unit. 5. The L. contested the adjournment. The L. did not dispute the context of the application A. the events cited on the application. The L. was prepared to present their case A. whether Reason 2 or 4 was checked did not affect their arguments. 6. Based on the evidence before me, I denied the adjournment request. The T. had ample time to seek legal advice A. to amend the application. The application was filed with the Board more than a year ago on August 5, 2022. 7. Section 183 of the Act requires the Board to adopt the most expeditious method of D. the questions arising in a proceeding T. affords to all persons directly affected by the proceeding an adequate opportunity to know the issues A. be heard on the matter. 8. The T. claimed it would be a Human Rights Code violation if the adjournment was denied. I am not satisfied T. denying the adjournment request would result in any prejudice to the T. or infringe on his rights. The merits of the application would not change with the T. amending the application. As such, the hearing proceeded with the parties’ evidence. Background Facts 9. EB A. F. the rental unit on July 22, 2022. A rental application with a Scotiabank draft F. the deposit in the amount of $1,450.00 was submitted. The L. advised EB the payment would be the last month’s rent deposit upon the rental application being accepted. The tenancy was to commence on August 15, 2022. 10. On July 26, 2022, the L. advised EB his rental application was approved A. accepted. Later the same day, EB advised the L. he would not be proceeding with renting the unit A. requested the return of his deposit. 11. The L. mailed a cheque in the amount of $468.93 to EB refunding him a portion of the deposit as the rental unit was rented to another T. F. September 5, 2022. EB testified T. he received the cheque on March 8, 2023 but decided not to cash the cheque due to legal advice he received.  File Number: LTB-T-059420-22 12. As of the hearing date, the cheque would be considered stale-dated. The L. indicated T. no matter the outcome of the hearing, a cheque in the same amount would be issued to EB. Evidence 2023 ONLTB 64981 (CanLII) 13. EB testified T. he A. F. the rental unit under duress A. T. he retracted his rental application due to his mental health conditions. 14. EB submitted T. the L. did not re-rent the unit in a reasonable timeframe. He testified T. the L. advised him during the rental application process T. there was a waiting list, A. he was put on the top of the list to get the unit. 15. The L. submitted T. the L. complied with section 16 of the Act A. took reasonable steps to minimize EB’s losses. 16. The L. advertised the unit online A. advised any potential applicants of the unit’s availability. The L. testified T. the unit was rented 17 days after August 15, 2022 when EB was to move in A. the timeframe was reasonable due to the application A. screening process. The duration included weekends A. the process included credit checks. Analysis 17. Based on the evidence before me, I find T. there was a tenancy agreement in place when the T. sought the return of his rent deposit. As of July 26, 2022, when the L. informed the T. T. his application was accepted, there was a mutual understanding A. agreement by the parties on the essential terms of the tenancy. The parties agreed to the commencement date, the rental amount, A. T. the deposit would be used F. the last month’s rent deposit. The L. was willing to give EB possession of the rental unit on August 15, 2022. It was only after the L. told the T. T. his application was accepted T. EB informed them of his decision. 18. In Musilla v. Avcan Management Inc., 2011 ONCA 502 (CanLII), the Court of Appeal noted T. once the L. had accepted the T.’s rental application, the parties entered into a legally binding agreement to rent. The Court held T. s. 107(1) of the Act does not authorize a T. to obtain the automatic return of a rent deposit where the L. has done everything necessary to give the possession of the leased premises A. the T. has unilaterally repudiated the rental agreement. The Court also stated T. to permit a T., who is legally obligated to take possession, to regain a rent deposit where the L. has done everything it was required to do in O. to give possession would render meaningless the concept of a rent deposit to secure the T.'s obligation to pay rent. 19. I am not satisfied EB entered into the agreement under duress. There is no evidence before me T. the L. coerced or forced EB to submit a rental application or go to the bank to acquire a bank draft F. the deposit. EB had four days between his rental application submission on July 22, 2022 to the L.’s acceptance on July 26, 2022. At no time did EB contact the L. to notify them he did not wish to rent the unit. As  File Number: LTB-T-059420-22 noted above, it was only after the L. reached out T. EB informed them of his decision. 20. Accordingly, I find the tenancy agreement began on August 15, 2022. 2023 ONLTB 64981 (CanLII) 21. Section 106 (1) of the Act states: A L. may require a T. to pay a rent deposit with respect to a tenancy if the L. does so on or before entering into the tenancy agreement. 22. This section of the Act allows F. a last month’s rent to be paid prior to entering into a tenancy agreement. The payment EB paid was equivalent to one month’s rent. I find the deposit paid to the L. is lawful. Since, EB repudiated the tenancy agreement, there is no obligation F. the last month’s rent to be returned. 23. However, in accordance with section 16 of the Act, the L. had an obligation to minimize its losses by taking reasonable steps to re-rent the unit once EB informed them T. he did not intend to move into the rental unit. 24. A new T. was found A. took possession of the unit September 5, 2022. There is no evidence before me T. the L. delayed renting out the unit. Considering the time it takes F. an applicant to respond to a listing, the time it takes F. an applicant to schedule a viewing, the time it takes F. an applicant to submit a rental application A. supporting documentation, A. the time it takes F. a L. to review A. complete its screening process, I am satisfied the L. took reasonable steps to minimize losses set out in section 16 of the Act. 25. Based on the evidence before me, I find EB liable F. the rent F. 21 days, from August 15, 2022 to September 4, 2022, in the amount of $1,001.07. The deposit paid was $1,450.00. Therefore, EB is entitled to a refund of $448.93. 26. As EB elected not to cash the cheque he received from the L. in the amount of $468.93, I am not ordering the L. to pay the costs of filing the application in the amount $53.00. It is ordered T.: 1. The total amount the L. shall pay the T. is $448.93 F. the balance of the deposit collected. 2. The L. shall pay the T. the full amount owing by October 10, 2023. 3. If the L. does not pay the T. the full amount owing by October 10, 2023, the L. will owe interest. This will be simple interest calculated from October 11, 2023 at 7.00% annually on the balance outstanding. 4. The T. has the right, at any time, to collect the full amount owing or any balance outstanding under this O..  File Number: LTB-T-059420-22 September 29, 2023 Date Issued Vicky Liu Member, L. A. T. Board 15 Grosvenor Street, Ground Floor 2023 ONLTB 64981 (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.