RTA subsection 57(1) spells out the test of bad faith for T5 application purposes, and the former tenant would have to prove all three parts of the test.
For example, for landlord's own use, the three-part test from RTA ss. 57(1)(a) is:
So the first part of the test requires proving (on a balance of probabilities) that "the landlord gave a notice of termination under section 48 in bad faith".
But there are some situations when tenants, unfortunately, vacate without getting a proper Board-approved N12 or N13, sometimes under pressure, sometimes due to lack of knowledge about their legal rights and the correct procedure.
Does this mean that these tenants are always left without any recourse for bad faith?
Not always, it really depends.
RTA subsection 57(1) does not require that the notice be in that specific Board-approved "N12" or "N13" form for T5 purposes (plus, there is RTA section 212 about "substantial compliance" with form). Nor does it say that it has to be "valid". It just says "a notice of termination under section 48" (or section 49 or 50, as the case may be).
So, as you can imagine, the standard for landlord's L2 application for eviction based on an N12 could end up being a bit different in practice (it involves using technically correct dates / minimum 60 days' notice, etc) than the standard of N12 for T5 purposes, depending on the facts of the case, depending on how the adjudicator analyzes these facts and interprets the Act, etc.
RTA section 43 specifies the minimum requirements for notices of termination by the landlord, but, as you can see in some LTB rulings below, invalid notices can work for T5 purposes sometimes:
"Notice of termination
43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,
(a) identify the rental unit for which the notice is given;
(b) state the date on which the tenancy is to terminate; and
(c) be signed by the person giving the notice, or the person’s agent. 2006, c. 17, s. 43 (1).
Same
(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,
(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);
(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and
(c) if the landlord applies for an order, the tenant is entitled to dispute the application. 2006, c. 17, s. 43 (2)."
Below are a few LTB examples that show some situations when a T5 (application about bad faith eviction) is filed without a proper N12 form. They show examples of what adjudicators might pay attention to in their analysis, but please note that LTB decisions are not binding on other adjudicators. Get legal advice for your specific case.
These examples show the importance of getting legal advice early, before making any moves. If you find yourself facing a potential N12, please record everything, organize all your evidence, get legal advice immediately, and do not sign anything without getting legal advice first.
List of LTB examples:
1. TST-02463 (Re), 2009 CanLII 74507 (ON LTB), <https://canlii.ca/t/27ff2> (invalid N12 worked for T5 purposes)
3. CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB), <https://canlii.ca/t/hv7lz> (email in substantial compliance with form, worked for T5 purposes)
4. HOT-05616-19-RV (Re), 2020 CanLII 31110 (ON LTB), <https://canlii.ca/t/j6vcf> (no notice, verbally told to vacate, the Board ruled that the tenant was "induced" to vacate and remedies were ordered)
5. TST-86735-17 (Re), 2017 CanLII 142769 (ON LTB), <https://canlii.ca/t/hrx9p> (not an N12, "Board has generally taken the view that any notice indicating that a tenant has to move out for own use is a notice pursuant to subsection 57(1)", worked for T5 purposes)
6. TNT-07318-18 (Re), 2018 CanLII 113860 (ON LTB), <https://canlii.ca/t/hwbl3> ("The fact that he did not use a Board form is irrelevant to the Landlord’s liability under the Act. The Landlord cannot escape the consequences of his actions by refusing to use a Board form.")
7. TST-55077-14 (Re), 2015 CanLII 75420 (ON LTB), <https://canlii.ca/t/gm5gp> (The tenant was induced to vacate, deemed harassment)
8. SOT-02418-19 (Re), 2019 CanLII 126911 (ON LTB), <https://canlii.ca/t/j4jr5> (unsigned text that doesn't identify the rental unit, didn't work for T5 purposes)
9. TNT-86163-16-RV (Re), 2017 CanLII 9491 (ON LTB), <https://canlii.ca/t/gxqb9> (verbal notice didn't work for T5 purposes)
10. CET-76967-18-AM (Re), 2018 CanLII 140427 (ON LTB), <https://canlii.ca/t/hzz91> (notice asking to move "to sell" didn't work for T5 purposes)
11. TST-08560-19 (Re), 2019 CanLII 134498 (ON LTB), <https://canlii.ca/t/j6w2v> (verbal notice didn't work for T5 purposes)
12. CET-76108-18 (Re), 2018 CanLII 88590 (ON LTB), <https://canlii.ca/t/hv7ms> ("the parties both agreed that notice was given verbally at the very least, and accepted as such")
13. TET-94108-18 (Re), 2019 CanLII 86962 (ON LTB), <https://canlii.ca/t/j2gmm> ("Although the Landlords never actually served a valid N12 on the Tenants, I am satisfied that for the purposes of s. 57(1)(a) the correspondence between the parties is “a notice of termination under section 48”. To find otherwise would make a mockery of the protections s. 57 is supposed to confer on tenants.")
14. Duarte v. 2132338 Ontario Ltd., 2021 CanLII 146522 (ON LTB), <https://canlii.ca/t/jngbr> (a proper N12 was not issued, a T2 was filed, the landlord was found to have acted in bad faith and to have substantially interfered with the tenant's reasonable enjoyment)
15. TST-08560-19 (Re), 2019 CanLII 134498 (ON LTB), <https://canlii.ca/t/j6w2v> (T5 failed because there was no written notice, so the former tenant failed the first part of the three-part test of bad faith under RTA s. 57)
16. Paranuik v Verma, 2022 CanLII 61516 (ON LTB), <https://canlii.ca/t/jqg46> (T5 succeeded, because the landlord sent an email to the tenant confirming conversation where "the Landlord clearly told the Tenant he had to vacate the rental unit because the Landlord's family member was moving in", see also RTA s. 212 (substantial compliance sufficient) and RTA s. 202 (findings of the Board))
17. Easton v Hoang, 2021 CanLII 144577 (ON LTB), <https://canlii.ca/t/jn11w> (T5 succeeded, the landlord texted the tenant that he needed to vacate for landlord's uncle or uncle-in-law to move in and the landlord got the tenant to sign an N11 whereas the tenant thought it was going to be an N12, see also RTA s. 202 (findings of the Board))
18. CET-28082-12 (Re), 2013 CanLII 4275 (ON LTB), <https://canlii.ca/t/fvzt1> (T5 failed because the notice by email did not specify the rental unit and was not signed by the landlord (it was ruled that it was not in substantial compliance (RTA s. 212) with notice requirements under RTA s. 43) and because the tenant did not vacate as a result of the notice)
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Excerpts from rulings:
I. Some examples of LTB decisions that went in tenants' favour:
1)
TST-02463 (Re), 2009 CanLII 74507 (ON LTB), <https://canlii.ca/t/27ff2>
"The Landlord took the position that because the N12 was not valid, the T5 should fail. The gist of the Landlord’s argument was that a void notice could not have been a notice given in bad faith as it was not in fact a notice.
It is inconceivable that a landlord should be able to escape liability in a T5 because the N12 upon which it is based is void. Such a finding would have potentially absurd consequences, where a landlord could indiscriminately serve faulty N12 notices of termination in the hope a tenant would vacate in good faith, as I am satisfied occurred here, without any consequence. That cannot have been the intention of the legislature.
Moreover, the wording of subsection 57(1) of the Act makes no reference to valid or invalid notices where it says “the Board may make an order…if, on application by a former tenant of a rental unit, the Board determines that, (a) the landlord gave a notice of termination under section 48 in bad faith…” Even defective notices can be given in bad faith. If the Tenants relied on the N12 and vacated, the Landlord should not be entitled to rely on the fact it was a void N12 to avoid a finding of bad faith for that reason alone."
____________________________
2)
TET-84356-17 (Re), 2017 CanLII 94045 (ON LTB), <https://canlii.ca/t/hq25c>
"1. On May 1, 2017 the Tenants received a letter from the Landlord dated April 30, 2017. It says:
Due to personal circumstances, the landlords will be occupying the property on August 1st, 2017. The last month’s deposit of $1850 will be used for the month of July 2017. The remaining post dated cheques will be returned on the day of moving (on or before July 31st, 2017.)
We do hope that three (3) months notice is sufficient to transition.
Thank you for your understanding and cooperation.
2. The Landlord orally told the Tenants that she and her family were living with her parents. The parents were planning to sell their own home so the Landlord needed the rental unit to live in.
3. The letter from the Landlord clearly does not constitute proper notice to terminate under section 48 of the Residential Tenancies Act, 2006 (the 'Act'). It is not in the form approved by the Board (see subsection 43(1)) nor does it inform the Tenants of their right to dispute the termination (see subsection 43(2)). But the Tenants did not know that so they set about organizing a move. The Tenants moved out on August 1, 2017.
4. Although the letter given by the Landlord does not constitute proper notice under section 48 of the Act, it is a notice of termination under section 48 for the purposes of s. 57(1)(a). In other words, the Tenants are entitled to make this application. A tenant should not be deprived of the remedies available when a bad faith notice is served just because the landlord failed to serve the notice in the proper form and in compliance with the Act. To decide otherwise would defeat the purpose of section 57 and produce an unjust result.
5. After the Tenants moved out of the rental unit they discovered from a neighbour that the Landlord put up a for sale sign on September 3, 2017.
6. The Tenants also entered into evidence a copy of an MLS listing for the rental unit dated September 11, 2017. It says the rental unit is vacant, an open house was to be held on September 16, 2017, and the Landlord is a licensed real estate agent handling the listing personally. As of the date of this order, the MLS listing for the rental unit is still posted on the internet site for the real estate company the Landlord works for.
7. Based on the evidence before the Board I am satisfied that the Landlord did not move into the rental unit within a reasonable period of time after the Tenants vacated and the Landlord served the notice of termination on the Tenants in bad faith."
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3)
CET-74019-18 (Re), 2018 CanLII 88562 (ON LTB), <https://canlii.ca/t/hv7lz>
"Did the Landlord give a notice of termination under section 48?
2. The Tenant did not receive an N12 notice of termination which is the relevant Board form when a Landlord seeks possession of the unit for their own use. Instead, the Landlord’s Agent sent the Tenant an email dated April 12, 2017 informing the Tenant that this was “a formal 2 months’ notice to terminate the month to month lease agreement…effective June 14, 2017 as landlord requires vacant possession of the property”. The Tenant submitted this email into evidence. VP testified that the Landlord spoke with him by telephone and told him that his son is moving into the unit and he needed possession of the premises by a certain date.
3. Section 48 of the Act permits a landlord to give notice to terminate the tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by the landlord, landlord’s spouse, a child or parent of the landlord or landlord’s spouse or a person who provides or will provide care services.
4. Section 212 of the Act states that substantial compliance with the Act respecting the contents of forms, notices or documents is sufficient.
5. Section 202 requires the Board to ascertain the real substance of all transactions and activities relating to a residential complex or rental unit and the good faith of the participants and in doing so, may disregard the outward form of a transaction and may have regard to the pattern of activities relating to the residential complex or residential unit.
6. The email notice of termination from the Landlord substantially complies with section 48. The notice informs the Tenant that it is a sixty day notice for the monthly tenancy and the reason for the notice was that the Landlord required possession. Although the email did not state that the possession was for the Landlord’s son, this detail was provided through a phone conversation with the Landlord. Although the termination date in the notice is not the last date of a rental period, subsection 57(1)(a) does not state that the notice of termination must be valid but rather that it is given under section 48 in bad faith. "
___________________________
4)
HOT-05616-19-RV (Re), 2020 CanLII 31110 (ON LTB), <https://canlii.ca/t/j6vcf>
"Review Hearing
9. The Tenant alleged that she had vacated the unit because the Landlord told her that the Landlord planned to sell the unit. The Landlord also indicated that by giving the Tenant 60 days notice, that Landlord was within her rights to compel the Tenant to vacate.
10. The Tenant relied on this information from the Landlord and, believing that she was compelled to vacate, did so on a relatively expedited basis.
11. Shortly after the Tenant vacated, the Landlord rented the unit out for a higher monthly rent.
12. The Tenant is now paying higher rent than she had paid for the unit she vacated and seeks compensation for the additional rent and out of pocket costs of moving.
13. The relief sought by the Tenant is analogous to the relief which would have been available in a T5 application for a bad-faith N12 notice if such a notice had been given. No such notice was given. I proceeded to assess, in the hearing, whether the Landlord had induced the Tenant to vacate the unit by way of a misrepresentation about the Landlord’s intent to sell the property and about the Landlord’s right to evict the Tenant.
14. I find, as follows, that the Tenant was induced to leave the unit on the basis of those misrepresentations and, in the result, find that the Landlord substantially interfered with the Tenant’s reasonable enjoyment of the unit.
15. The relevant uncontested facts are as follows:
a) The tenancy had originally been for a fixed term which ended on May 31, 2019;
b) The Landlord notified the Tenant that she intended to sell the unit. The Landlord testified that this intention was genuine at the time as she could not afford to keep the property;
c) The Landlord gave the Tenant 60 days notice of her intent to sell the unit and gave the Tenant until May 31, 2019 to vacate;
d) The Tenant was not aware of her rights under the Residential Tenancies Act, 2006 (the ‘Act’) with respect to N12 notices of termination. The Tenant understood that the Landlord’s 60 days’ notice was sufficient to compel the Tenant to vacate the unit on or before May 31, 2019;
e) The Landlord understood that all she needed to do to properly terminate the tenancy was to give the Tenant 60 days notice of her intention to sell the property. She understood that she was within her rights to terminate the tenancy at the end of the fixed term as long as she gave 60 days notice of that termination. She was not aware that the tenancy would, under the provisions of the Act, automatically convert to a month to month tenancy. She did not understand that she did not have the right to unilaterally terminate the Tenancy in the manner she sought to do and she did not understand that, even if she had planned to sell, she could seek eviction only once she had a purchaser who intended to take occupation of the unit for that purchaser’s own use;
f) The Landlord did not have a purchaser at the time she gave the notice such that there was no basis for her to have given the requisite N12 notice even if she had given any such notice;
g) The Landlord changed her plan to sell the unit after she notified the Tenant of the requirement to vacate. The Landlord received some financial assistance from her brother so that she was able to retain the unit. She did not advise the Tenant of this change of plan as she had mistakenly understood that she was within her rights to terminate the tenancy in the way that she did;
h) The Tenant was paying $1,680.00 in rent when she vacated in May 2019;
i) The Tenant took a new unit with a lease beginning May 1, 2019, at a rental rate of $2,650.00 per month, being $970.00 per month higher than the $1, 680.00 which she had been paying at the unit; and
j) The Landlord rented out the unit for $1,950.00 per month after the Tenant vacated.
16. The Tenant testified that she felt pressed to find new accommodation by May 31, 2019. It was important to her to have new accommodation as her son had special needs and would have been particularly vulnerable to uncertainty about accommodation. She acknowledged that the new unit was larger than the unit she had vacated but that she had been unable to obtain suitable smaller accommodation in the limited time available to her. She also acknowledged that she did not approach the Landlord to ask for more time to find new accommodation and did not seek advice to assess what her rights with respect to the termination of the tenancy might be.
17. I find that the Tenant’s decision to vacate the unit resulted directly from the Landlord’s false representations, initially about her intent to sell the property and subsequently about the Landlord’s right to terminate the tenancy by May 31, 2019 on the mere basis of a 60 day notice.
18. I find that the Tenant was induced by the Landlord’s conduct to vacate the unit such that I may, in addition to any other remedy, order that that the Landlord pay a sum to the Tenant for some or all of any increased rent which the Tenant has incurred or will incur over a one-year period after the Tenant vacated. I may also order that the Landlord compensate the Tenant for the Tenant’s reasonable out-of-pocket moving, storage and other like expenses."
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5)
TST-86735-17 (Re), 2017 CanLII 142769 (ON LTB), <https://canlii.ca/t/hrx9p>
"9. The Landlord notified the Tenant that she had to move out so that his father could move in. The Tenant vacated the rental unit and the father did not move in.
10. Subsection 57(1)(a) of the Act provides that “the Board may make an order...if, on application by a former tenant of the rental unit, the Board determines that, the landlord gave a notice of termination…in bad faith, the tenant vacated the rental unit as a result of the notice…and no person (in the notice) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit.”
11. Although the Landlord’s notice of termination was not in the form of an N12 notice of termination, the Landlord and Tenant Board has generally taken the view that any notice indicating that a tenant has to move out for own use is a notice pursuant to subsection 57(1) of the Act.
12. The Landlord testified his father would not move in because he has heart issues and the condition of the rental unit would have been unhealthy for him, even after the Landlord had spent time repairing it.
13. I find this to amount to bad faith for two reasons.
14. First, the Landlord had an obligation to ensure that the rental unit was suitable for the intended use before telling the Tenant to vacate where a simple inspection might have revealed that the rental unit was not suitable. Very simple steps could and should have been made before displacing the Tenant in this way.
15. Second, the Landlord testified that he had spent substantial money in repairing the rental unit after the Tenant vacated, yet there was no independent evidence before me that even after that expenditure his father could not live there.
16. It is not open to landlords to serve speculative notices of termination for own use. There has to be a realistic plan in place to ensure the person intending to occupy actually does."
__________________________
6)
TNT-07318-18 (Re), 2018 CanLII 113860 (ON LTB), <https://canlii.ca/t/hwbl3>
"11. I find that the Landlord gave the Tenant a Notice of Termination in bad faith. The fact that he did not use a Board form is irrelevant to the Landlord’s liability under the Act. The Landlord cannot escape the consequences of his actions by refusing to use a Board form."
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7)
TST-55077-14 (Re), 2015 CanLII 75420 (ON LTB), <https://canlii.ca/t/gm5gp>
"Analysis Regarding the Illegal Eviction Allegation
76. Pursuant to s. 37(1) a tenancy can only be terminated in accordance with the Act. This means that there must either be a valid notice to terminate, an agreement to terminate, or an order of the Board.
77. Neither the Landlord’s oral notice of January 16, 2014, nor his e-mail of January 22, 2014, constitutes valid notice to terminate a tenancy under the Act. This is because section 43 says:
(1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,
(a) identify the rental unit for which the notice is given;
(b) state the date on which the tenancy is to terminate; and
(c) be signed by the person giving the notice, or the person’s agent.
(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,
(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);
(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and
(c) if the landlord applies for an order, the tenant is entitled to dispute the application.
78. It is also worth noting that the Act does not permit a landlord to give notice to terminate for the stated reasons the Landlord had here. If the Landlord had intended to live in the rental unit and make it his home he could have served notice to terminate for landlord’s own use; if he had entered into an agreement of purchase and sale and the purchaser intended to move in he could have given notice for purchaser’s own use. If he planned renovations that were so extensive that vacant possession and a building permit were required he could have served notice to terminate under s. 50 but would have to have given 120 days’ notice at least and the Tenants would have had the option to return after the renovations were completed. But a landlord is not permitted to terminate a tenancy so he can do renovations for the purpose of selling the building.
79. I would also note at this point that I accept that the Landlord had no idea he was not entitled to terminate the tenancy in this manner. But ignorance of the law is not a defence. A landlord is a business-person, a professional who is selling a product to a customer. At a minimum he or she should be aware that there is law applicable to the relationship and make some effort to become familiar with it and to follow it.
80. Given the above, I am satisfied that by demanding the Tenants move out of the rental unit without proper notice the Landlord substantially interfered with their reasonable enjoyment of the rental unit. I am also satisfied the Landlord breached section 23 of the Act as any reasonable landlord ought to know such behaviour would be most unwelcome to any tenant.
81. Again, the Tenants’ application seeks abatement of the rent, moving costs and an administrative fine.
82. The Tenants were paying for the right to live in the rental unit without being subject to illegal eviction demands. They did not receive what they were paying for so they are entitled to some abatement of the rent for the period January 16, 2014 to March 4, 2014. During that period the Tenants had to find a new place to live, pack, and move. The Tenants e-mail of February 8, 2014, referred to above, states in part:
Your decision to evict us has meant many sleepless and worried nights for us, particularly [the first-named Tenant above]. She is under a great deal of pressure right now running an international organization with a key festival event starting May 2nd, expecting over 50 thousand participants.
83. This e-mail is corroborative of the Tenants’ evidence before me. The move could not have happened at a worse time and was very inconvenient. On the date of the move itself, the first-named Tenant was simply unavailable to help out as she had to be at work that day.
84. Given all of the evidence before me and my knowledge of prior like cases before the Board, I believe a reasonable abatement of the rent would be about 40% during the relevant period or $1,170.00. This amount recognises the serious impact that the unanticipated and badly timed eviction had on the Tenants but also takes into account that during the period in question they continued to have full use of the rental unit.
85. Pursuant to s. 31(2)(b) of the Act a tenant is entitled to reasonable out-of-pocket moving, storage and other like expenses which the tenant has incurred or will incur where the Board determines that the tenant was induced by the conduct of the landlord to vacate the rental unit.
86. The evidence here clearly establishes that but for the Landlord’s illegal eviction notice the Tenants would not have moved out of the rental unit when they did. As stated above, the first-named Tenant above works for a charity whose big annual event occurs in the spring every year so moving at the beginning of March was the most inconvenient time possible for her. The Tenants paid $319.79 to their movers to move on March 4, 2014. That is a more than reasonable amount, so I am satisfied the Tenants are entitled to an order for moving costs in the amount of $319.79. An order will issue accordingly.
87. Finally, the Tenants seek an administrative fine. I do not believe a fine is warranted in these circumstances. I say this for the following reasons.
88. Pursuant to the Board’s Interpretation Guideline # 16 “Administrative Fines”:
An administrative fine is a remedy to be used by the Board to encourage compliance with the Residential Tenancies Act, 2006 (the “RTA”), and to deter landlords from engaging in similar activity in the future. This remedy is not normally imposed unless a landlord has shown a blatant disregard for the RTA and other remedies will not provide adequate deterrence and compliance.
89. I believe the Landlord here breached the Act because of inexperience and a lack of knowledge with respect to his obligations. As stated above, ignorance of the law is no excuse, but it does mean that his behaviour was more akin to wilful blindness then a blatant disregard for the Act. More importantly, I believe the remedies awarded to the Tenants in this order will be more than sufficient deterrence to prevent a reoccurrence of this type of behaviour in the future. As a result, no administrative fine will be ordered."
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II. Some examples of LTB decisions that went in landlords' favour:
8)
SOT-02418-19 (Re), 2019 CanLII 126911 (ON LTB), <https://canlii.ca/t/j4jr5>
"3. The evidence before me is that the notice given by the Landlord is the following text message sent January 14, 2018: Hi [Tenant], I wanted to let you know sooner rather than later that I will need to terminate our lease effective May 1st 2018 – I hope 101 days is enough notice for you but I will be moving into the unit so wanted to give you a fair heads up.
4. This text message is not a notice as it is not in a form approved by the Board, it does not identify the rental unit and it is not signed by the person giving the notice. It therefore does not meet 3 of the 4 requirements for notices under subsection 43(1) of the Act. In addition, it does not inform the Tenant of the consequences of vacating or not vacating the rental unit in accordance with the notice or that the Tenant is entitled to dispute the notice as required by subsection 43(2). Nor does the notice provide all of the details and reasons required under section 48 of the Act.
5. The requirement to pay compensation under section 48.1 and the remedies under section 57 require a notice under section 48 to be given. As no such notice was given, the compensation and remedies sought are not available to the Tenant.
6. The Tenant submitted two Board cases, TST-86735-17 and TNT-07318-18 in support of the Tenant’s argument that a notice in the Board’s form is not required.
7. In TST-86735-17, the member held at paragraph 11:
Although the Landlord’s notice of termination was not in the form of an N12 notice of termination, the Landlord and Tenant Board has generally taken the view that any notice indicating that a tenant has to move out for own use is a notice pursuant to subsection 57(1) of the Act.
8. In TNT-07318-18, the member held at paragraph 11:
I find that the Landlord gave the Tenant a Notice of Termination in bad faith. The fact that he did not use a Board form is irrelevant to the Landlord’s liability under the Act. The Landlord cannot escape the consequences of his actions by refusing to use a Board form.
9. Neither of these cases provides reasons for ignoring the clear requirements for notices under the Act other than to say that the Board generally looks the other way in this type of situation or to say that the form of a notice is irrelevant. I am not persuaded by these cases. Any Landlord attempting to enforce a text message as notice under the Act would be unsuccessful.
10. As I am unable to determine that the Landlord gave a notice of termination under section 48 of the Act, none of the remedies sought by the Tenant are available to her.
11. The remedy under section 57 is for Tenants who have received a notice of termination under section 48. The remedy for Tenants who have not received a notice of termination under the Act is to simply not move out."
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9)
TNT-86163-16-RV (Re), 2017 CanLII 9491 (ON LTB), <https://canlii.ca/t/gxqb9>
"7. The first requirement in subsection 57(1) of the Act has not been met.
8. The Landlord did not serve the Tenant with a N12 notice of termination under section 48 of the Act. This is undisputed.
9. In fact, in her T5 application, the Tenant crossed out the reason for the application stating that the Landlord gave a N12 notice of termination and hand wrote that the Landlord gave a verbal notice.
10. Sections of the Act cannot be read in isolation. Upon reading section 48 of the Act together with section 43 of the Act, it is clear that a notice of termination from a landlord must be in writing since it must be signed by the person giving the notice. Obviously a verbal notice cannot be signed.
11. There is no dispute that the Landlord never gave the Tenant a written notice to end the tenancy. No formal N12 notice was ever given to the Tenant. No written notice of any kind was given.
12. The facts of this case are undisputed. In November 2015, almost eight months before the fixed one year term lease ended on June 30, 2016 the Landlord verbally told the Tenant that she would not be renewing the one year lease because she planned to have her son move into the rental unit.
13. Section 38 of the Act states that a fixed term tenancy is deemed renewed as a month-to-month tenancy if it is not renewed for another fixed term.
14. At the review hearing, the Tenant stated that she was not aware that the tenancy would continue on as a month-to-month tenancy if the one year lease was not renewed.
15. The Landlord asked the Tenant to sign an N11 agreement to end the tenancy after she told her the lease would not be renewed but the Tenant refused to sign it, as was her right. The Tenant stated that she spoke to a lawyer friend and was advised that she did not have to sign the agreement.
16. The fact that the Landlord asked the Tenant to sign an agreement to end the tenancy after she verbally told her the lease would not be renewed for another one year term shows that some additional step was needed to end the tenancy other than the verbal notice that the lease was not being renewed for another fixed term.
17. The fact that the Landlord verbally told the Tenant that she did not intend to renew the one year lease for another one year term did not terminate the tenancy. This is clear from section 38 of the Act. It also did not act as a notice to terminate the tenancy for the purpose of section 57 of the Act.
18. Section 43 of the Act requires a notice of termination to be in a form approved by the Board. For the purpose of section 48 of the Act, that form is the N12 notice of termination.
19. Section 212 of the Act states that “substantial compliance with this Act respecting the content of forms, notices or documents is sufficient”.
20. Therefore, if a written notice was given that substantially complies with the requirements of section 43 (notice identifies rental unit, sets out a termination date and is signed by the person giving the notice) then it could be found that the notice substantially complies with the requirements of the Act despite the fact that it was not on an official N12 notice form.
21. However, the Landlord verbally telling the Tenant the one year lease would not be renewed about 8 months before it expired can certainly not be found to substantially comply with the requirements of the Act.
22. Since the requirements of section 57 of the Act have not been met, the application should have been dismissed and the remedy of one year’s increased rent and moving expenses should not have been ordered."
___________________________________
10)
CET-76967-18-AM (Re), 2018 CanLII 140427 (ON LTB), <https://canlii.ca/t/hzz91>
"13. There was no dispute that the Landlord did not provide the Tenants with a notice of termination pursuant to section 49 of the Act in the N12 form approved by the Board. The Tenants received an email from the Landlord on January 21, 2017 which stated:
“As per agreement to Lease dated September 28, 2015, you are tenants at the above mentioned property. The above lease is expiring on April 30, 2017. Kindly take note that our client will not extend this lease and you must vacate the property on April 30, 2017. Please be reminded that se per Schedule to Agreement to Lease, our client can affix a for sale sign on the property 90 days before expiry of lease and our client can show the property to prospective buyers by giving 6 hours’ notice. Our client will exercise her right of affixing for sale sign and showing the property. Kindly make sure you co-operate with our client for the above two covenants and violation of same will result in recovering all the damages/losses from you. (sic)”
14. The Tenants argued that this email contained all the elements as required by a notice pursuant to section 49 of the Act. The email identified who it was from, who it was for, stated a termination date and provided the reason for termination being the Landlord wanting to sell the unit.
15. Subsection 49(1) of the Act states the following:
A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,
(a) the purchaser;
(b) the purchaser’s spouse;
(c) a child or parent of the purchaser or the purchaser’s spouse; or
(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
16. Subsection 49(1) of the Act contemplated that a landlord has already entered into an agreement of purchase and sale and that the purchaser (or spouse, child, parent, spouse’s parent) requires the unit for the purpose of residential occupancy before this type of notice can be served.
17. Given that, I am not satisfied that the email the Tenants received amounted to a notice pursuant to this subsection. The email does not contain all the material elements required by subsection 49(1) of the Act. The email simply inferred that the Landlord intended to sell the premises, given that they state they can place a ‘for sale’ sign and show the unit to prospective buyers.
18. A cause of action cannot be established when there is no certain date as to when the sale of the property would be completed thus precipitating when the purchaser would require possession of the unit for the purposes of residential occupancy. There is no starting point. It would be absurd to find that a notice simply stating an intent to sell a rental unit is sufficient for a bad faith argument under section 57 of the Act, as the unit may not sell for years.
19. Subsection 57(1)(b) of the Act has a three part test that must be met before any remedies pursuant to subsection 57(3) of the Act can be ordered. In these circumstances, first, the Tenants must establish that the Landlord gave a notice of termination pursuant to section 49 of the Act in bad faith. Second, the Tenants must establish that they vacated the rental unit as a result of the notice. Third, the Tenants must establish that no person listed in the notice moved into the rental unit within a reasonable time after the Tenants moved out.
20. Regardless of the limitation period set out in subsection 57(2) of the Act, the Tenants have not established that the Landlord gave a notice pursuant to section 49 of the Act, and could not establish whether or not the person listed in the notice (as no one was listed) moved into the unit within a reasonable time after the Tenants moved out. Therefore, the requirements of section 57 have not be met."
__________________________________
11)
TST-08560-19 (Re), 2019 CanLII 134498 (ON LTB), <https://canlii.ca/t/j6w2v>
"10. On the basis of the facts before me, I find that the first requirement in subsection 57(1) of the Act has not been met. The Landlord did not serve the Tenants with a N12 notice of termination under section 48 of the Act. This was undisputed by the parties.
11. In applying the Act, sections of the Act may not be read in isolation the sections must be read in harmony with each other. It is clear that a valid notice of termination under section 48 of the Act, considering the requirements of section 43, must be in writing and it must be signed by the person giving the notice. Verbal notice or “notice” that does not meet the Act’s formal requirements will not be found to meet the requirements of the Act.
12. There is no dispute that the Landlord never gave the Tenants a written N12 notice to end the tenancy.
13. The facts of this case are undisputed. In July 2018, the Landlord told the Tenant that she would not be renewing the one year lease because she planned to have her daughter move into the rental unit.
14. The fact that the Landlord told the Tenant that she did not intend to renew the one year lease for another one year term did not terminate the tenancy and did not act as a notice to terminate the tenancy for the purpose of section 57 of the Act.
15. Section 43 of the Act requires a notice of termination to be in a form approved by the Board, that form is the N12 notice of termination.
16. The Tenants’ evidence was insufficient to prove that the Landlord served the Tenants with a notice of termination under section 48 of the Act. As a result, it is not necessary to address further evidence in the test under section 57 of the Act."
_________________________________
12)
CET-76108-18 (Re), 2018 CanLII 88590 (ON LTB), <https://canlii.ca/t/hv7ms>
"6. While the Landlord stated there was an N12 notice served, neither party was able to produce any such notice at the hearing. Nevertheless, the parties both agreed that notice was given verbally at the very least, and accepted as such. As well, both parties indicated they came to an agreement that the Tenants would vacate by March 15, 2018.
[...]
21. Based on the undisputed submissions, I find the Landlord served an N12-equivalent notice on the Tenants and the Tenants did move out of the rental unit because of that notice.
[...]
25. So, I find that on a balance of probabilities, that the Landlord did have a good faith intention to have his parents move into the rental unit. Going further, I find (again on a balance of probabilities), that the Landlord’s parents have moved into the rental unit.
26. The fact that there is a temporary rental arrangement with GS does not take away from the parents currently living in the rental unit, neither does it diminish the Landlord’s declaration that he and his family still fully intend to move into the unit.
27. Since the first and third test fail, I find the Tenants’ application cannot succeed."
_________________________________
13)
TET-94108-18 (Re), 2019 CanLII 86962 (ON LTB), <https://canlii.ca/t/j2gmm>
"7. When the initial lease expired in 2017 the Landlords told the Tenants the second-named Landlord wanted to sell. The Tenants told them they wanted to stay so the Landlords said the Tenants could remain in the unit but they would have to accept a rent increase from $2,000.00 to $2,200.00. The Tenants knew that this was an illegal rent increase but they agreed because they wanted to stay. So the parties then signed a new fixed term tenancy agreement for a year commencing June 1, 2017. The monthly rent charged was $2,200.00.
8. On April 13, 2018 the first-named Landlord above sent an e-mail to the Tenants saying:
On behalf of the Landlord… this is an official notice to you as Tenants… that the Landlord is hereby given sixty (60) days notice to you to move out from the said unit in accordance to the Agreement to Lease.
9. The Tenants knew enough about the Act to know this was not proper notice to terminate so they e-mailed back on April 13, 2018 saying that until proper notice was served, they were going to ignore the Landlords’ request they leave.
10. But the Landlords kept insisting the Tenants would have to leave. So on May 25, 2018, the Tenants sent an e-mail with a link to the Board’s web site so the Landlords could find the proper form. The e-mail also explains that the Act requires the Landlords to pay one month’s compensation (under s. 48.1), and warns the Landlords that acting in bad faith can have serious consequences.
11. On May 26, 2018 the first-named Landlord above sent the Tenants another e-mail with a letter attached from the second-named Landlord. The attached letter says in part:
I am writing to inform you that my family decided not to renew the lease agreement… My daughter is attending college in Toronto this September. We would like to keep this suite as her main residence.
12. On May 31, 2018 the first-named Landlord above sent the Tenants another e-mail which says in part:
This is to confirm with you that the Letter of Notice from the Landlord is also a legal binding Notice to notify you the end of your tenancy to be on July 31, 2018 in accordance to the Landlord and Tenancy Act but as per your request the landlord will also sign the form N12 – Notice to End you Tenancy as a supplement for the Notice. The Landlord has agreed to compensate you with the one month rental of $2,200.00 as per your request. In accordance to the Landlord and Tenancy Act there is no need to show her daughter’s University acceptance letter and is also for personal confidentiality reason since she is entitled to move into the unit without any specific reason.
13. The Landlords never in fact served an N12 notice to terminate on the Tenants but the Tenants accepted the demands they move, so they moved out of the rental unit on or about July 31, 2018. They did so because they believed the second-name Landlord was being truthful and if they had to move, they wanted to get settled into a new home before the school year started in September.
14. On August 2, 2018 the Landlords listed the rental unit for sale on MLS. The Tenants discovered the advertisement on-line four days after moving out.
15. The Landlords say the second-named Landlord’s daughter was hoping to get into university but her application for admission was denied. The rental unit has not in fact been sold and no showings are being arranged because the second-named Landlord above still hopes her daughter will come to the city for school.
Analysis
16. This application is based on section 57(1)(a) of the Act which says:
The Board may make an order described in subsection (3) if, on application by a former tenant of a rental unit, the Board determines that,
(a) the landlord gave a notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and 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;
17. Although the Landlords never actually served a valid N12 on the Tenants, I am satisfied that for the purposes of s. 57(1)(a) the correspondence between the parties is “a notice of termination under section 48”. To find otherwise would make a mockery of the protections s. 57 is supposed to confer on tenants.
18. I am also satisfied that Tenants moved out as a result of the notice, and the personal Landlord’s daughter did not move into the rental unit within a reasonable time.
19. So the issue for the Board is whether or not the notice was served in bad faith.
20. Based on the evidence provided at the hearing, I am satisfied the notice was served in bad faith. I say this for the following reasons.
21. The evidence that the personal Landlord is not currently showing the unit, despite the fact it is still listed, could arguably support the proposition she still wants it for her daughter, but it is equally consistent with a real estate speculator waiting on the market.
22. I would also observe that it is likely that the second-named Landlord knew or ought to have known her daughter was denied admission to university before the Tenants vacated and yet she said nothing to the Tenants.
23. More importantly, the second-named Landlord did not attend the hearing to testify, did not request the opportunity to testify via telephone, did not provide an affidavit as to her intentions at the time the notice was served, and failed to produce and file into evidence any documentation indicating her daughter applied to attend university in the city as she claims. So there really is no direct evidence before the Board that suggests the second-named Landlord genuinely intended her daughter to move into the rental unit.
24. Given all of the above, I find that it is more likely than not that the Landlords gave the notice to terminate to the Tenants in bad faith."
_________________________________
_________________________________
_________________________________
“I wanted to send a transcript of our verbal conversation over the phone following your email message regarding confirmation and acknowledgement to end your tenancy at Condominium Suite – 3402, 15 Grenville Street Toronto, M4Y 0B9. As mentioned during our phone conversation you are going to move out the property on January 15, 2020. I am in complete acknowledgement with the arrangement stated during our conversation since I want to use the property for personal and family use. As per the tenancy contract I affirm that I will pay one month rent $1934.00 CAD with the satisfactory inspection of the unit at the time you hand over possession back to myself on the said date (15th January 2020)”
_________________________________
17)
Easton v Hoang, 2021 CanLII 144577 (ON LTB), <https://canlii.ca/t/jn11w>
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More:
Yesterday's blog post about the dangers of invalid notices of termination: If you sign an invalid notice, could it still end up being enforced? (example)
Timing of bad faith / Is the good faith requirement limited only to the time when the N12 is given?
What if a landlord asks you to vacate for a sale? (At risk of N12)
Can an N12 be used for storage purposes?
Can a landlord sue their tenant for failure to vacate based on an N12?
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