- The rental unit that is the subject of the landlord’s application consists of a single family home with 4 rental units. At the time that the landlord’s application was filed in or about June 2023, the Member determined that there were two empty rental units located in the basement and the upper floors. The tenant resided in the main floor unit.
- The landlord purchased the rental unit as a single-family residence approximately 30 years ago and resided there with his family. The landlord is now 67 years old. The landlord had renovated the property to created four separate rental units.
- Over the past four years, the landlord has begun converting the garage into a rental unit. When the application was filed, the garage had no central heat or air conditioning and had not been permitted for residential occupancy by the City of Toronto.
- In or about June 2023, the landlord suffered a heart and stroke that has severely affected his quality of life. As a result of his medical condition, the landlord has been unable to complete the required renovations to the garage and decided to move back into the main floor of the rental complex to live in a more comfortable unit. The landlord stated that he decided to move into the main floor unit because it was totally finished, and he would be able to avoid having to traverse stairs.
- On or about April 25, 2023, the landlord served a Form N12 on the tenant seeking a termination of the tenancy for personal use.
- On June 7, 2024, the Member dismissed the landlord’s L2 application for the following reasons:
- the landlord stated during his testimony on December 5, 2023, that the Tenant being transgender was interfering with his lifestyle;
- The Landlord has resided in the garage-turned-unit for four years and given how cold Canadian winters can be, I prefer the evidence of the Tenant that the Landlord has heating and air conditioning in the unit despite his claims that he is away from December to March each year.
- Even if there is no heat or air conditioning in the Landlord’s unit, as of the hearing date, there were two vacant units in the rental home but despite the urgent concerns for his health, the Landlord chose to place them for rent rather than immediately occupy them.
- I find that the letter from the Landlord’s doctor dated September 6, 2023, indicating that he is ‘extremely stressed and living in a garage on his property without air conditioning or heat’ issued after the N12 was served, is based on information provided by the Landlord in hopes of boosting his chances of success in this application
FACT and LAW
- Guideline 8 of the Landlord and Tenant Board Guideline states that a ground for a review includes an error of fact and an unreasonable exercise of discretion which results in an order outside the usual range of remedies or where there are no reasons explaining the result.
- The landlord submits that the Member made errors in dismissing his application and in doing so, has granted a result outside the usual remedies granted by the LTB. Further to this, the Member has erred in misinterpreting material facts of the case in coming to her conclusion.
- The landlord submits that the Member’s disregard of the medical evidence and the fact that the landlord suffered a life changing heart attack and stroke in June 2023 is an unreasonable exercise of discretion which resulted in an order outside the usual range of remedies or resulted in a decision unsupported by the facts and law of the case.
- The landlord further submits that if the Member had placed more weight on the medical evidence and the life changing effect resulting from the landlord’s heart attack and stroke rather than the items referred to in paragraph 6 above, the landlord’s application would have resulted in a decision that the application was based upon his good faith intention to terminate the tenancy for his own personal use.
- In Feeney v. Noble, 1994 CanLII 10538 (ON SC), the Court held that the test of good faith is genuine intention to occupy the premises and not the reasonableness of the Landlord’s proposal. This principle was upheld in Salter v. Beljinac 2001 CanLII 40231 (ON SCDC) where the Court held that the “good faith” requirement simply means that the Landlord sincerely intends to occupy the rental unit. The Landlord may also have additional motives for selecting a particular rental unit, but this does not affect the good faith of the Landlord’s notice.”
- The landlord submits that the Member misinterpreted the term “good faith” to mean “good intention to occupy” and not “real intention to occupy”. As set out in Salter,
the “good faith” requirement simply means that the Landlord sincerely intends to occupy the rental unit. The Landlord may also have additional motives for selecting a particular rental unit, but this does not affect the good faith of the Landlord’s notice. - As the Board noted in SWT-32638-12:
[W]hile there may have been difficulties between these parties before the N12 Notice was served, in my respectful view, these were not such as to immediately bring the good faith of the Landlord into question. Neither does the existence of difficulties between parties place a reverse onus on a landlord to show that s/he has not acted in bad faith. The test is whether, “in good faith”, the landlord intends to occupy the unit for residential purposes, not good faith untainted by any hint of difficulty with the tenant. If that were the legal test, then an N12 Notice could only be served in circumstances where the landlord and tenant relationship was completely unblemished by any problems at all and that is not the law.3 [Emphasis in original]
- With respect to paragraph 6(a) above and the Member’s analysis at paragraph 14 of her order, where she highlights the allegation made by the tenant that,
The Landlord claims he served the N12 notice with the intention of moving into the rental unit but the Tenant believes the notice was served in retaliation for coming out as transgender in March 2023. Although the Landlord denied this claim, he did state during his testimony on December 5, 2023, that the Tenant being transgender was interfering with his lifestyle. - The landlord submits that the Member’s reliance on the tenant’s allegation that the N12 was served because “the tenant being a transgender was interfering with his lifestyle”, is contrary to the direction of the Divisional Court in Salter, and should not have been a determinant in the analysis of “good faith”.
- Further to the landlord’s submission related to the “good faith” issue, it is submitted that the Member erred in fact when she misinterpreted the landlord’s testimony at paragraph 14 of her order that, “the Tenant being transgender was interfering with his lifestyle”. This was an error of fact as the landlord’s testimony stated that he did not care what the tenant did as long as it did not interfere with his lifestyle. The landlord did not state that the tenant’s lifestyle was interfering with him.
- With respect to 6(b)(c)(d) of the Member’s determination of the condition of the garage and that the landlord was “extremely stressed” living in the garage, the landlord submits that the Member’s disregard of the medical evidence that he had a heart attack and stroke in June 2023 is an unreasonable exercise of her discretion that resulted in an order outside the usual range of remedies or where there are no reasons explaining the result.
- The landlord further states that the Member’s disregard of the evidence provided by Mbient Designs confirming the condition of the garage is also an unreasonable exercise of her discretion that resulted in an order outside the usual range of remedies or where there are no reasons explaining the result.
- The Member failed to recognize and/or accept that a heart attack and stroke is a life-changing event that would cause a significant change in the landlord’s way of life. The landlord may have been able to reside in the garage for the past four years but after sustaining a heart attack and stroke, it would be unreasonable to expect the landlord would continue to live in a garage. The Member failed to give any weight to the landlord’s medical condition that related to his heart attack and stroke and further erred in fact by misinterpreting the landlord testimony that there was no heat or air conditioning in the garage. In fact, the landlord testified that he did not have central air and heat in the garage and had to rely upon a space heater.
- With respect to the Member’s determination at paragraph 15 that,
“Even if there is no heat or air conditioning in the Landlord’s unit, as of the hearing date, there were two vacant units in the rental home but despite the urgent concerns for his health, the Landlord chose to place them for rent rather than immediately occupy them”
The landlord submits that this determination by the Member is based upon a test of “reasonableness” and thereby contrary to the direction set out in Guideline 12 of the RTA and Feeny v. Noble, 1994 CanLII 10538 (ON SC). - The landlord further submits that notwithstanding the arguments set out in paragraph 18 above, the Member erred by unreasonable exercise of her discretion when she disregarded or failed to accept the unchallenged evidence from the landlord that his medical condition would not allow him to reside in a rental unit that required stairs for ingress and egress.
- As a result of the foregoing, the landlord respectfully requests that the order of Member dated June 7, 2024 be set aside and the application of the landlord be granted or in the alternative, that the review be granted and a hearing de novo be scheduled.
