LTB Order LTB-T-076429-23

O. under Subsection 135 Residential Tenancies Act, 2006 2023 ONLTB 78288 (CanLII) Citation: O. v Al-mter, 2023 ONLTB 78288 Date: 2023-12-01 File Number: LTB-T-076429-23 In the matter of: 1017 LAUZON RD WINDSOR ON N8S3M7 Tenant Between: N. O. A. L. A. Al-mter N. O. (the 'Tenant') A. F. an O. D. T. A. Al-mter (the 'L.') collected or retained money illegally (the T1 application). N. O. (the 'Tenant') A. F. an O. D. T. A. Al-mter (the 'L.'):  substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of their household (the T2 application). N. O. (the 'Tenant') A. F. an O. D. T. A. Al-mter (the 'L.') gave a notice of termination in bad faith (the T5 application). This application was heard by videoconference on November 22, 2023. Only the Tenant A. her Legal Representative Brandon Valley attended the hearing. As of 1:17 p.m., the L. was not present or represented at the hearing although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the Tenant’s evidence. Determinations: 1. The Tenant brought this T1 application claiming T. the L. did not use the Tenant’s last month rent deposit to pay F. the last rental period of the tenancy A. did not return the deposit to the Tenant as well as T. the L. did not provide compensation to the Tenant with respect to an N12 notice T. was served. 2. The Tenant’s T2 application claims T. the L. substantially interfered with her reasonable enjoyment of the rental unit because he threatened T. he was going to discard her belongings A. she has not been able to retrieve them.  O. Page 1 of 7 2023 ONLTB 78288 (CanLII)  File Number: LTB-T-076429-23 3. The Tenant’s T5 application claims T. the L. gave a N12 notice of termination in bad faith. F. the reasons T. follow, the Tenant’s applications are partially granted. Background: 2023 ONLTB 78288 (CanLII) 4. The Tenant moved into the rental unit on July 1, 2021 A. paid a last month’s rent deposit to the L. in the amount of $1,850.00 upon signing the lease. 5. The Tenant states T. the L. emailed her on March 26, 2023 stating T. he was moving back into the rental unit A. gave her 60 days to move out of the rental unit. An N12 notice of termination was attached to the email which indicated a termination date of June 1, 2023 A. stated T. the L. intends to move into the rental unit A. occupy it F. at least one year. 6. The Tenant states T. on April 4, 2023, the L. then provided her by email with an N4 notice stating T. she owed rent A. was in arrears. The L. stated T. the Tenant had until April 24, 2023 to vacate the rental unit. 7. The Tenant states T. she then decided to move out right away, staying with a friend, A. did not dispute the notice of termination. The Tenant submits T. she moved out of the rental unit on April 7, 2023, took only a few essential items, left her belongings in the rental unit A. did not return the key to the rental unit to the L.. 8. The Tenant submits T. she had two roommates living with her in the rental unit at the time of the delivery of the notices of termination but she was the only Tenant named on the lease. The Tenant states T. when she left the rental unit, her two roommates remained in the rental unit A. she does not know when they vacated. 9. The Tenant states T. she was having issues with one of her roommates as he had mental health issues A. did not feel comfortable returning to the rental unit even though she still had her key A. all of her belongings were in the rental unit. The Tenant stated T. at no time did she contact her roommates to have her belongings returned but T. some of the belongings were being used by the roommates including kitchen kittens A. furniture. 10. The Tenant testified T. she did attempt to retrieve her possessions by calling the L. but was only able to speak with him in the middle of May when he told her T. she owed rent A. T. if she did not pay the arrears, her belongings “would be put on the road”. 11. The Tenant states T. in June, 2023, the L. listed the rental unit F. lease through multiple websites which listed an increased rent A. T. the L. did not comply with section 48(1) of the Residential Tenancies Act, 2006 (the ‘Act’) by providing compensation to her in the amount of one month’s rent.  File Number: LTB-T-076429-23 Analysis: The T1 application: 12. The Tenant alleges T. the L. did not use her last months rent deposit to pay F. 2023 ONLTB 78288 (CanLII) the last rental period of the tenancy A. did not return the deposit to her. The Tenant also alleges T. the L. gave her an N12 Notice to End your Tenancy Because the L., a Purchaser or a Family Member Requires the Rental Unit (‘N12 notice’) A. did not pay compensation in the amount of $1,850.00, being one month’s rent. The Tenant testified T. she vacated the rental unit as the result of an N12 notice A. did not receive compensation. 13. Based on the uncontested evidence A. submissions before me, I am satisfied, on a balance of probabilities, T. the L. provided an N12 notice pursuant to section 48 of the Act A. did not provide the required compensation to the Tenant pursuant to section 48.1 of the Act which states: A L. shall compensate a tenant in an amount equal to one month's rent or offer the tenant another rental unit acceptable to the tenant if the L. gives the tenant a notice of termination of the tenancy under section 48. 14. As I have found T. compensation equal to one month's rent was not provided to the Tenant, the Tenant shall be awarded one month’s rent compensation in the amount of $1,850.00. 15. Section 105 of the Act states T. the only security deposit T. a L. may collect is a rent deposit collected in accordance with section 106 of the Act. 16. Section 106 of the Act states T. a L. may require a tenant to pay a rent deposit with respect to a tenancy if the L. does so on or before entering into the tenancy agreement. 17. Section 135 of the Act states T. a Tenant or former Tenant may apply to the Board F. an O. T. the L., superintendent or agent of the L. to pay to the Tenant any money the person collected or retained in contravention of this Act. 18. Based on the uncontested evidence A. submissions before me, I find T. the Tenant has not established, on a balance of probabilities, T. the L. failed to not use the last month’s rent deposit, which was collected upon signing the tenancy agreement in July, 2021, to pay F. the last rental period of the tenancy A. did not return the deposit to the Tenant. I say this as the Tenant was still in possession of the rental unit, her roommates were still occupying the unit A. the Tenant had retained the keys to the rental unit. Further, the tenant testified T. she was unaware of when her roommates vacated the rental unit A. did not know if the last month’s rent deposit had been A. or not. I therefore find T. the Tenant has failed to prove on a balance of probabilities, T. the last month’s rent deposit was not A. by the L.. Therefore, no remedy shall be granted.  File Number: LTB-T-076429-23 The T2 application: 19. Based on the uncontested evidence A. submissions before me, the Tenant elected to leave the rental unit on April 7, 2023 rather than on June 1, 2023 (the date indicated in the N12 notice) A. did not return to the rental unit to collect her belongings. While the Tenant 2023 ONLTB 78288 (CanLII) states T. she made multiple attempts to speak to the L. to retrieve her items, A. she states he threatened to put her items on the road in mid-May, 2023, I find T. she did not mitigate her damages. 20. Pursuant to section 16 of the Act, When a L. or a tenant becomes liable to pay any amount as a result of a breach of a tenancy agreement, the person entitled to claim the amount has a duty to take reasonable steps to minimize the person’s losses. 21. In this case, the Tenant chose to leave her belongings behind, some of which her roommates were also using, A. the Tenant did not return to collect them. The Tenant still had possession of the rental unit, she had a key to the rental unit A. she could have collected her belongings. The Tenant also could have contacted her roommates to obtain the belongings but elected not to as she claims they had issues A. she did not feel comfortable going to the rental unit as she did not get along with her roommates. I do not find T. the Tenant took reasonable steps to minimize her losses A. therefore failed to mitigate her losses A. there is no evidence T. the L. actually discarded her items. I find T. the Tenant has not established T. the L. substantially interfered with her reasonable enjoyment of the rental unit. The Tenant’s T2 application shall be dismissed. The T5 application: 22. Pursuant to section 57(1) of the Residential Tenancies Act, 2006, S.O. 2006, c17 (the ‘Act’), the Board may make an O. against a L. if, on application by a former tenant of a rental unit, the Board determines T., (a) the L. gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice … A. no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit. 23. Subsection 57(1) (a) of the Act establishes a three-part test. In O. to be successful in their T5 application, the Tenant 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;  Second, T. the Tenant vacated the rental unit as a result of the N12 notice or Board O. based on 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 Tenant vacated.  File Number: LTB-T-076429-23 24. On an application to the Board, the person who alleges a particular event occurred has the burden of proof to establish T. it is more likely than not T. their version of events is true. In this application, the burden typically falls on the Tenant to establish T. the notice of termination was served in bad faith. 2023 ONLTB 78288 (CanLII) 25. However, the fact T. the rental unit was listed F. lease on June 7, 2023, just a few days after the termination date indicated on the N12 notice T. was served on the Tenant creates a rebuttable presumption T. the L. served the N12 notice in bad faith. In other words, in this case, the burden falls on the L. to establish whether or not the rebuttable presumption applies. Rebuttable Presumption of Bad Faith 26. Subsections 57(5) A. 57(6) of the Act establishes a rebuttable presumption of bad faith on the following ground: (5) F. the purposes of an application under clause (1)(a), it is presumed, unless the contrary is proven on a balance of probabilities, T. a L. gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the L., … (c) advertises the rental unit, or the building T. contains the rental unit, F. sale; (6) The period referred to in subsection (5) is the period T., (a) begins on the day the L. gives the notice of termination under section 48; A. (b) ends one year after the former tenant vacates the rental unit. 27. The Tenant’s application asserts T. the L. served the N12 notice in bad faith as they had listed the house F. lease A. never had the intention of residing in the rental unit F. residential purposes, F. a period of at least one year; it was always the L.’s intention to re-rent the house. 28. On the uncontested evidence A. submissions before the Board, I find T. the L. served an N12 notice on the Tenant, the Tenant moved out of the rental unit as a result of the N12 notice A. the L. had the property listed F. lease, intended to re-rent the property, A. did not intend to move into the rental unit F. residential purposes F. a period of at least one year. On a balance of probabilities, I therefore find T. the L. served the N12 notice of termination in bad faith. 29. The Tenant seeks general compensation in the amount of $24,700.00. The Tenant’s Legal Representative submits T. the amount of $22,200.00 represents 12 months of the last rent charged A. requests this amount pursuant to section 57(3) 1.1. of the Act as well as an additional amount of $2,500.00 which represents general damages F. mental stress.  File Number: LTB-T-076429-23 30. There was insufficient evidence at the hearing to substantiate the Tenant’s claim F. monies to be awarded F. mental stress A. I am therefore not prepared to O. this requested remedy. 31. As the Tenant testified T. she had no intention of vacating the rental unit but F. the 2023 ONLTB 78288 (CanLII) N12 notice. I see no reason not to award her the twelve months of general compensation requested, totalling $22,200.00. An O. shall issue accordingly. 32. The Tenant also requested the Board O. the L. to pay an administrative fine F. breach of the Act. The Board’s Interpretation Guideline 16 provides insight into the Board’s use of fines A. states T. an administrative fine is a remedy to be used to encourage compliance with the Act A. to deter landlords from engaging in similar activity in the future. “This remedy is not normally imposed unless a L. has shown a blatant disregard F. the Act A. other remedies will not provide adequate deterrence A. compliance.” 33. In this case, as the Tenant has been awarded a substantial monetary remedy, I find T. this provides sufficient deterrent. The request F. an O. F. an administrative fine is denied. 34. The Tenant paid $48.00 to file her application A. is entitled to reimbursement of those fees. 35. This O. contains all of the reasons within it A. no further reasons will be issued. It is ordered T.: 1. The L. shall pay to the Tenant the amount of $1,850.00. This amount represents compensation not paid to the Tenant pursuant to section 48.1 of the Act. 2. The L. shall pay to the Tenant the amount of $22,200.00. This amount represents an amount not exceeding the equivalent of twelve months of the last rent charged to the Tenant. 3. The L. shall pay to the Tenant the amount of $48.00 F. the cost of filing the application. 4. The total amount the L. owes to the Tenant is $24,098.00. 5. The L. shall pay the Tenant the full amount owing by December 12, 2023. 6. If the L. does not pay the Tenant the full amount owing by December 12, 2023, the L. will owe interest. This will be simple interest calculated from December 13, 2023 at 7.00% annually on the balance outstanding. December 1, 2023 Date Issued Heather Chapple Member, L. A. Tenant Board  File Number: LTB-T-076429-23 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. 2023 ONLTB 78288 (CanLII)