Many of our readers will be familiar with the following statement on "allowable use" for N12 from the LTB Interpretation Guideline 12:
"The landlord must establish that the unit will be used for "residential occupation" as required by section 48 of the RTA. That term is not defined in the RTA but it has been considered in a number of LTB and court decisions.
[...]
Using the basement rental unit for storage of items the landlord uses for her profession and to construct a recreation room was found to be residential occupation: TSL-62768-15-RV2 (Re), 2015 CanLII 100191 (ON LTB), upheld by the Divisional Court, Sertic v. Mergarten, 2017 ONSC 263."
1.
Key points from the referenced decisions:
1)
"21. The Landlord testified that she requires the Tenant’s basement rental unit for the purposes of storage and constructing a recreational room. The Landlord is a costume designer and as such requires additional space for the storage of her material."
2)
"[5] When the second application came before a Vice-Chair of the Board, he raised an issue whether the holding by the Board on the first application was correct. In particular, the Vice-Chair expressed doubt about the conclusion, that using the premises for storage that was related to the landlord’s personal occupation of the premises, did not constitute residential occupation. I note that the premises in question are the basement of a house that the landlord otherwise occupies. The Vice-Chair then adjourned the hearing to allow the parties to make submissions on this issue. The hearing continued on two subsequent dates after which the Vice-Chair made the decision that is now the subject of this appeal.
[...]
[8] I also do not find any basis to interfere with the Vice-Chair’s conclusion as to the proper meaning of the term “residential occupation”. In my view, the Vice-Chair’s interpretation, that requiring the premises for the purposes of storage and other uses directly related to the landlord’s otherwise personal occupation of other portions of the premises meets the requirement of residential occupation, is a reasonable one. I note, on this point, that a tribunal’s interpretation of its home statute is generally to be reviewed on a standard of reasonableness, not correctness: First Ontario Realty Corp. v. Deng, 2011 ONCA 54 (CanLII), [2011] O.J. No. 260 (C.A.)."
2.
However, a few rulings addressed this issue further, and they show how extremely case-specific this can be in practice, sometimes raising additional concerns in regards to the good faith claim.
3)
In this ruling the storage was supposed to be temporary, for the duration of renovations, and this did not qualify as "residential use":
4. The Tenant vacated the rental unit pursuant to order TSL-66766-15 issued on October 28, 2015 which was not reviewed or appealed. Paragraph one of that order indicated that “the Landlord testified that she requires the use of the basement unit for her own use as well for the occasional use of her family.” The affidavit filed in that application provided no additional information.
5. The extent of the Landlord’s own intention to occupy the rental unit remained unexplained in the order and at the hearing before me. More likely than not, the Landlord anticipated that the rental unit would be used for storage because the rental unit required significant work after the Tenant vacated. The Tenant argued that storage is not a use for which a tenant can be evicted for landlord’s own use but this is incorrect as recently determined by the Divisional Court in Sertic v. Mergarten, 2017 ONSC 263 where, in paragraph 4, Nordheimer J wrote:
In my view, the Vice-Chair’s interpretation, that requiring the premises for the purposes of storage and other uses directly related to the landlord’s otherwise personal occupation of other portions of the premises meets the requirement of residential occupation, is a reasonable one.
6. The problem, however, is that this use was to be temporary, for the duration of the work and not beyond, as proven by the Landlord’s eventual re-renting of the unit.
7. Similarly, the Landlord’s intention for her family members (including grandchildren who, incidentally, are not an eligible class in subsection 48(1) of the Act above) was that they would occupy the rental unit only occasionally, where eviction for landlord’s own use has to be in contemplation of full-time and indefinite residential occupation.
8. This is confirmed in a number of binding decisions, including MacDonald v. Richard, [2008] O.J. No. 6076 where a landlord unsuccessfully tried to evict a tenant so that a rental unit could be used by the landlord’s daughter on the summer break from university. In another case, Wiazek v. Armstrong, [1994] O.J. No. 2737 (Ont. Ct. Gen. Div.), a landlord sought eviction so that he could occupy the rental unit, a house, with his daughters. The court found however that such occupation would only be occasional, where Gibson J. noted at paragraph 61: “I really do not feel that (the landlord) will be in effect living in his own house on a full-time basis, which would be that he does not ‘require’ the premises for his own living needs”. In yet another case, MacDonald v. Smith, [1993] O.J. No. 1680 (Ont. Ct. Gen. Div), the court determined the landlord wanted to use the rental unit occasionally, that it would not be her main residence, and that “the definition of occupancy under the Act, …is normal residency; that is, use and control of the property for residential purposes as commonly understood as a main residence.”
9. Whether for storage or for her family members, the Landlord’s intention that such use should be merely temporary or occasional is, in my view, indicative of bad faith.
10. Furthermore, the Landlord’s evidence that her family members ended up essentially disliking the rental unit, deciding not to stay there, is further evidence of bad faith. This is because a reasonable landlord would have simply taken her family members through the rental unit in advance to make sure they would, in fact, occupy the rental unit before taking the rather drastic step of evicting a tenant. While it is not expected that the Landlord should have known that the Tenant would have such difficulty finding an alternate unit, the Landlord should have understood that evicting the Tenant (or any tenant) would have serious consequences. Not taking the simplest of steps to determine the viability of her plan suggests she did not take the implications of her actions seriously.
11. The Landlord also testified that she would then have used the unit herself but for recent deterioration in her health which affected her ability to use the stairs to access the unit. This was essentially an attempt to rehabilitate the notice where I was not at all convinced that she had any intention to personally occupy the rental unit other than as above at the time she served the N12 notice of termination.
12. For all of these reasons, I find the Landlord served the notice of termination in bad faith."
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4)
Wrong form (N13 for conversion to commercial use), issues of credibility and good faith:
"1. The Landlord says that on November 13, 2017 she served notice to terminate on the Tenant in Form N13 pursuant to s. 50(1)(b) of the Residential Tenancies Act, 2006 (the 'Act'). The notice says the Landlord intends to convert the rental unit into a non-residential space by painting it and using it for storage.
[...]
Is Storage a “Use for a Purpose other than Residential Premises”?
6. One of the legal issues that arises here is whether or not the Landlord’s proposal to store her possessions in the rental unit constitutes a non-residential use.
7. The Landlord does not intend to turn the rental unit into a commercial storage facility or business. Rather, she says that her grandchildren need more space to run around in and her own basement at home is unavailable for that purpose because of the many items stored in her basement. So she proposes to move her possessions from her basement into the rental unit to give her grandchildren room to run and play.
8. At the hearing I provided the parties with a copy of the Divisional Court’s decision in Sertic v. Mergarten, [2017] O.J. No. 135, 2017 ONSC 263 and invited them to make submissions about it. In that case the tenant occupied a basement unit in the landlord’s home and the landlord sought eviction for landlord’s own use on the basis that the landlord intended to use the extra space for storage. The Court agreed that using the basement for storage comes within the definition of residential occupation for the purposes of s. 48.
9. Neither party offered any submission with respect to the applicability of Sertic v. Mergarten to the situation here.
10. On the one hand, it could be argued that Sertic v. Mergarten is distinguishable on the facts because the Landlord does not live in the residential complex and the decision concerns the interpretation of “for the purpose of residential occupation” in s. 48 rather than the interpretation of “for a purpose other than residential premises” in s. 50. On the other hand, there is little to distinguish the two phrases and one could argue that the intent of s. 50(1)(b) is to address those situations where the character of the use is being changed to things akin to commercial space.
11. I am of the view that in the circumstances here what the Landlord proposes to do with the rental unit does not constitute conversion to a non-residential use. She is not opening a business or altering the unit in any way except painting it. She is planning to reproduce in the unit the same thing that currently exists in her own basement at home. I doubt very much if the Landlord would describe the basement of her own house as non-residential premises.
12. The application could be dismissed on this basis alone. But in case I am wrong in this regard, I invited the parties to lead evidence and submissions in the alternative.
Relief from Eviction
13. Assuming that I am incorrect in applying Sertic v. Mergarten to this application, I would still dismiss the Landlord’s application because having considered all of the circumstances I find that it would not be unfair to refuse to grant the application. I say this for the following reasons.
14. As stated above, the Landlord intends to use the rental unit for storage. For the purposes of these reasons I am prepared to accept that this is true although the Tenant disputes her intention is genuine.
15. In response to my questions the Landlord concedes she could rent a storage locker in a nearby commercial facility or use the empty unit on the first floor of the residential complex. She states that she could rent a storage locker and the cost would be about the same as the loss of income from the Tenant’s unit. So that is a viable option. But using the first floor unit would not be desirable because there are a couple more stairs going up to that unit than there are going down to the basement.
16. In the course of the hearing I discovered that the Landlord has other reasons for wanting to evict the Tenant.
17. Somehow the residential complex came to the negative attention of the municipality for by-law infractions. It is not zoned as a legal triplex even though the Landlord was renting out three units in it. Only two are allowed. She applied for a variance to the zoning by-law, but then discovered how complicated and expensive that process was. So when the tenant on the first floor was evicted she simply left that unit vacant and withdrew the application for a variance. The main floor unit is more desirable to renters than the basement so if one of the units has to be vacant it would obviously be more favourable economically for it to be the basement.
18. The Landlord is also disapproving of the decorating and work the Tenant has done in the rental unit. Without consent the Tenant has set about making the rental unit his home by: painting the trim throughout, the bathroom vanity, and the ceilings black or some other very dark colour; and installing furniture, plants, curtains and rugs. The Tenant presented numerous photographs at the hearing of what the unit looked like when he moved in and what it looks like now. Although not everyone would like the Tenant’s aesthetic sense, the photographs show the unit has not been damaged by the decorating. It is quite stylish and the work the Tenant has done would be considered to be improvements by many if not all.
19. At heart, relief from eviction under the Act is about weighing and balancing the parties’ respective interests to do what is fair.
20. If the Landlord’s application is denied she will have to use the main floor unit for her storage purposes and climb a few more steps or rent out a commercial storage space. But if the application is granted the Tenant will lose a great deal. He has invested time and money into decorating and furnishing this home. He has not actually paid off the cost of doing so and being evicted will set him back on his efforts to improve himself and his life for his non-resident four children.
21. Given all of the circumstances here, the balance of fairness clearly rests with the Tenant. The Landlord has multiple easy options available to her for her storage needs whereas evicting the Tenant will cause him financial hardship and distress.
22. As a result, of all of the above, the Landlord’s application shall be dismissed."
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5)
Issues around credibility and good faith (based on drawing inferences from conduct and motives), plus mandatory dismissal (under RTA ss. 83(3)(a)) because the landlord was in "serious breach" of his maintenance obligations (more on this topic):
"1. The residential unit is a basement unit in the Landlord’s single family home occupied by the Tenant and his girlfriend, LG. The Landlord lives in the main part of the house.
2. The Landlord’s application was preceded by an N12 Notice of Termination for his own use bearing a termination date of June 30, 2018 (“the N12”).
3. In his oral evidence at the hearing, the Landlord has described that he plans to retire from work and he “…no longer wish[es] to rent to anyone”.
4. Section 48(1) requires that, in order to be successful in this application, the Landlord must satisfy me that at the time of the service of the N12 Notice, it was served, in good faith, for the purposes of the Landlord’s own residential use.
5. The law is clear that with respect to single family dwellings such as this one, a Landlord’s reintegration of a formerly independent unit back into the main home –even for purposes of storage –qualifies as “residential use” for the purposes of s.48(1) of the Residential Tenancies Act, 2006 (“the Act”) (see Sertic v. Mergarten 2017 ONSC 263 (ONSCDC)).
6. However, even in circumstances such as this one, the N12 must be served in good faith. The law is also clear that I may draw inferences about the Landlord’s good faith from the Landlord’s conduct and motives (Fava v. Harrison 2014 ONSC 3352 (ONSC DC) (“Fava”)).
7. Here, based upon the totality of evidence before me, and drawing inferences from the evidence as I am permitted to do in Fava; I am not satisfied that the N12 Notice was served in good faith. While perhaps a fine distinction, the mere act of ousting the Tenant from his incumbency will make the unit available for the Landlord’s residential use. However, I am satisfied, based upon the evidence provided, that the service of the N12 was done to evict this Tenant, rather than a desire on the part of the Landlord to re-integrate the separate parts of his home for his own living use.
8. While the Landlord described that he simply wants to retire and stop being a Landlord, he conceded in response to questions, that he rents out two other properties to tenants in Brampton. He qualified this original statement in his affidavit – required under s.72(1) of the Act – but I find this does not burnish the credibility of his evidence.
9. On the totality of evidence provided, I prefer the evidence of the Tenant and LG to the Landlord. The Tenant described that he and the Landlord had a reasonably amicable relationship until about the Fall of 2017 when the Landlord discovered that LG had moved into the unit and the Tenant and LG were living there as a couple. The Tenant described that the Landlord’s initial negative reaction to LG living in the unit is reflected in the N7 Notice of Termination served upon the Tenant by the Landlord in or about February 2018 (which was submitted into evidence at the hearing). In that notice, the Landlord contended “The Landlord rented the basement to the Tenant with the expectation [that] only one person would reside there, since the Landlord pays the utilities he can show the Board the utilities have increased as a result of another person [LG] living their [sic]…”
10. The totality of evidence before me leads me to an inference that the N12 was served, not to reclaim the unit for the purposes of residential use, but to oust this tenant. I do not believe this constitutes “good faith” for the purposes of the Act.
11. The Landlord’s application fails the good faith requirement under s.48(1) of the Act and it must be dismissed.
12. Further and in any event, the Tenant has led persuasive evidence that the Landlord is in serious breach of his obligations to maintain a sufficient temperature in the unit. Refusal of this application is mandatory under s.83(3)(a) of the Act where I am satisfied that the Landlord is in serious breach of his responsibilities under the Act.
13. The Landlord has an obligation to provide a heating system capable of maintaining a room temperature of 21 degrees. The Tenant presented persuasive evidence, including various temperature readings across a wide number of dates, showing that the temperature in the unit was far below this required level required under the Toronto Municipal Code and stayed that way.
14. While the Landlord did not seriously dispute the Tenant’s allegations that the furnace in the home is not capable of generating a sufficient amount of heat for the unit, he contended that the Tenant’s temperature readings resulted from the Tenant holding open the door to the unit during his exterior smoke breaks. I do not find this evidence from the Landlord to be credible or compelling or in any way responsive to the Tenant’s allegations of serious breach.
15. Based upon the totality of evidence before me, I am satisfied that the Landlord is in serious breach of his obligations under the Act as the residential complex does not have a heating system capable of maintaining a temperature in the unit of 21 degrees. As such, under s.83(3) of the Act, notwithstanding my conclusions re: the good faith of the notice, refusal of this application is mandatory in any event.
16. In light of my conclusions above, the application shall be dismissed. It is unnecessary for me to address the myriad of other grounds raised by the Tenant at the hearing for dismissing this application."
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6)
Issues around credibility and good faith (based on drawing inferences from conduct and motives):
"7. The Landlord testified that her plan is to simply re-incorporate the residential unit into the rest of her home and use it as storage.
8. She affirmed that she plans to keep the basement as part of her home “forever”. She specified that she has no plans to re-rent the unit.
9. The Landlord continued that she does not plan to make any physical changes. She indicated she plans to take the lock off the door separating the unit in the basement from the rest of the house.
10. She noted that the Tenant is not the first renter of the unit. Two previous tenants preceded him. She denied that the application is motivated by anything other than a desire to return the home to the way it used to be before the basement was rented out.
11. The Landlord continued that she is experiencing some health issues, including arthritis in her shoulder, knees and ankles; as well as osteoarthritis. However, she indicated that she is able to negotiate the 8-10 steps to the basement using her hands for support.
12. The Landlord admitted that she had previously brought an application to the Board to evict the Tenant supported by an earlier N12. She acknowledged that this application had been dismissed on the grounds that her proposed use of the unit was commercial and not “residential occupation”.
13. The Landlord denied the Tenant’s suggestion that she is planning to re-rent the unit. She responded that the N12 was served because she no longer wants to be a landlord.
14. She acknowledged that the basement had been renovated in 2015, with a new kitchen and new washroom.
15. The Landlord conceded that on October 11, 2017, she approached the Tenant to temporarily vacate the unit due to a water leak which caused it to be “unhealthy”.
16. The Landlord admitted that the problem identified in October 2017 with excessive moisture in the unit has not been completely rectified. However, she rejected the Tenant’s suggestion that her asthma prevents her from using the basement. The Landlord noted that she plans to “use” the basement space; she is not going to “live” in it. The Landlord indicated that she plans to fully finish the wet basement issue when the Tenant is evicted and she can undertake the complete project (which she has been advised involves tearing up the floors).
17. The Landlord dismissed the Tenant’s suggestion that “a wet basement” would not affect her. She denied that her proposed repossession of the unit would expose her to possible harm, indicating that she does not expect to have problems.
18. The Landlord denied the Tenant’s proposition that the N12 was served simply to get rid of him and that since the summer, she has deliberately tried to make life in the unit uncomfortable for the Tenant, including by turning off the air conditioning in the building.
Evidence of the Tenant
19. The Tenant testified that the N12 was not served in good faith.
20. He outlined that the Landlord has been trying to evict him from the unit since 2017.
21. He submitted into evidence Member Solomon’s decision in TSL-83485-17 issued on March 15, 2017 (“the Solomon decision”) consenting to the withdrawal by the Landlord of an L2 application based upon an N5 Notice of Termination for substantial interference.
22. The Tenant also provided a copy of Member Pilon’s decision in TSL-87599-18 issued on October 13, 2017 (“the Pilon decision”) in which the Landlord’s application to evict was denied on the basis that the Landlord intended commercial use “…and not residential occupation” (para. 3).
23. The Tenant indicated that the basement is a fully furnished unit. He finds it unfeasible that the Landlord would recently renovate it, furnish it and then simply stop renting it and use it for storage.
24. The Tenant summarized that he is paying $1,220.00/month for the unit. He believes that the Landlord can re-rent the unit for a rent of about $400.00 more a month than that.
25. The Tenant described that he is confident that “she will re-rent [the unit] as soon as [the Tenant leaves].”
26. The Tenant added that he is not a permanent resident of Canada and the loss of an ongoing residence may be consequential for him. He expressed that he may have some difficulty with finding a new place to live given his poor credit.
Analysis
27. Under s.48 of the Act, a landlord may serve a notice of termination where a landlord requires the unit in good faith for residential occupation.
28. The courts have made clear that the test of good faith genuine intention to residentially use the premises.
29. In his submissions in support of this application, DS clarified, with reference to the Divisional Court’s decisions in Sertic v. Mergarten 2017 ONSC 263 (ONSCDC)(“Sertic”); and Muszak v. Recchia 2013 ONSC 1686 (ONSCDC) (“Muszak”), that the Divisional Court has interpreted the term “residential occupation” as it is used in s.48(1) of the Act very broadly. In Sertic, the Court concluded that using premises for storage was a reasonable interpretation of “residential occupation” for the purposes of s.48(1) of the Act (para. 8). In Muszak, the Divisional Court highlighted that s.72 of the Act refers to “use” of the premises, rather than “residential occupation” (para. 4).
30. However, the threshold issue in this application is: was the N12 served in good faith? The Divisional Court has also made clear that I may draw inferences about whether or not the N12 was served in good faith based upon the conduct and motives of the Landlord (Fava v. Harrison (2014 ONSC 3352 ONSC DC) (“Fava”).
31. Here, based upon the totality of evidence provided, I am not persuaded that the Landlord served the N12 in good faith. After weighing the evidence of the Landlord and the Tenant, and drawing inferences from it – as I am permitted to do under Fava, I prefer the evidence of the Tenant which suggests that the N12 was served to rid the Landlord of this Tenant and to re-rent the unit.
32. I am alive to the reality, as ably summarized by DS in his submissions, that “residential occupation” is broadly interpreted, but the Divisional Court decisions submitted by DS do not, in my view, empower a landlord to evict a specific Tenant and thereafter then have residential space to use.
33. I was not impressed by the lack of detail in the Landlord’s evidence about her proposed future use of the unit. Balanced against the specific evidence of the Tenant who detailed two previous attempts to end the tenancy in the Solomon order and the Pilon order, and the suggestion in the affidavit by the Landlord that she finds “…dealing with the tenant incredibly difficult”; I am persuaded on a balance of probabilities that the Landlord wants the Tenant, this Tenant, out of the unit. I think that this conclusion is a reasonable inference from the totality of evidence before me, including the agreed facts that the unit is a newly-renovated, furnished unit. I find it compelling and persuasive the Tenant’s evidence that if he were to be evicted, the unit would be quickly re-rented at a higher rate.
34. As I am not satisfied, on a balance of probabilities, that the N12 Notice was served in good faith, the requirements of s.48(1) are not satisfied and the application must fail.
35. The application will be dismissed. Given the fact that the Tenant received, and rejected, compensation under s.48.1, it is unnecessary under the circumstances, to order that any money be returned by the Tenant to the Landlord."
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Notes:
From other cases cited above on temporary and intermittent residential use not being sufficient for N12 eviction purposes:
7)
MacDonald v. Richard, 2008 CarswellOnt 638, [2008] O.J. No. 6076, 164 A.C.W.S. (3d) 516
"1. For purposes of this decision we will accept, without specifically deciding, that the standard of correctness will apply, as that is the standard more advantageous to the appellant. We are of the view that the Review Decision by Member Ellacott on June 19, 2007 that "temporary full-time occupancy for four months does not constitute the purpose of residential occupation as contemplated by the Residential Tenancies Act, 2006" is correct. That conclusion is supported by case law directly on point that has held that a landlord is not entitled to evict an existing tenant in order to provide accommodation for his daughter on summer break from university: Wiazek v. Armstrong, (1994) O.J. No. 2737 (Ont. Gen. Div.)[9] . See also, McDonald v Smith, (1993) O.J. No. 1680 (Ont. Gen. Div.)[11] . It is also an interpretation that is consistent with the intention of the legislation, which is remedial in nature and directed towards the protection of tenants, including protecting the security of tenure for tenants. Accordingly, this appeal is dismissed. Costs fixed at $ 1000.00 payable by the appellant."
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8)
[9] The Landlord submits that the Member erred in law in determining that he was bound to dismiss the application by virtue of the decision in MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which he said was “binding precedent providing that occasional occupation is not what is intended” by s. 48(1) of the Act.
[10] The Landlord submits that the proposed occupation of the unit by the landlord’s daughter in MacDonald was a temporary 4 month occupation only and that this use was distinguishable from the case at bar, as Sedat would be living in the unit occasionally (on weekends during the school year and during the summer months) for 5 years. Amicus agrees with the Landlord that the Member was not bound by the MacDonald case, which involved temporary occupancy. Amicus submits that Sedat’s indefinite part-time occupancy may well fit within the Landlord’s s. 48(1) rights if that use is regular and structured.
[11] In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act."
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9)
Wiazek v. Armstrong, 1994 CarswellOnt 3734, [1994] O.J. No. 2737, 51 A.C.W.S. (3d) 944
"50. The authorities make it quite clear that the burden is upon the landlord to establish, on the balance of probabilities, on credible evidence, that he genuinely requires possession of the premises for occupation by him or certain members of his family, which, of course, would include his daughters.
51. Clearly, Kim, from a practical standpoint, is not involved. Tanya could only be on a part-time basis, and if upon graduation she did not obtain employment in Toronto, she would only be living in the house on an occasional basis.
52. The evidence of Gisella is that she would like to live in the house, together with her boyfriend, however it is only her position that must be considered in law, since her boyfriend is not within the category of people for whom the landlord can obtain possession for their occupation.
53. Wiazek, while he testified that he would live in the house on a full-time basis, I find it hard to accept this evidence at its full face value. He conceded that he will be continuing his relationship with Ms. Bradshaw (as is clearly their privilege) and that he will be with her on some basis, however I really do not feel that he will be in effect living in his own house on a fulltime basis, which would mean that he does not "require" the premises for his own personal living needs. I sympathize with his personal desire to re-establish a close personal relationship with his daughters, and this seems to be something both Gisella and Tanya desire also. One thing that concerns me is that there is no evidence as to why this desire manifested itself at the end of July (which is when he served the second Notice of Termination) as distinct from some earlier time. Wiazek had commenced the application with respect to arrears of rent, as clearly his relationship with the tenants had resulted in an impasse. He had served the Notice of Termination for arrears on the same date, but did not see fit to go ahead with the application in respect of personal possession, only for arrears. Wiazek did not give any evidence in this area, and I am left with the somewhat unsettling feeling that he was using the application for personal possession as a back-up position in the event he was not successful on the arrears situation, and once he saw that the tenants were determined to defend the application for arrears, he then advised me that he wished to proceed with the application for personal possession.
54. Considering all of the evidence, I am not satisfied that the landlord has demonstrated, on the balance of probabilities, that he "genuinely requires" his home for occupation by himself and Gisella. She has her own place to live in, as he does, and while I think there is an element of credibility to his desire to reestablish his relationship with his daughters, such is not sufficient to evict a family who have experienced considerable trials to put his house into better condition so as to make it a place for them and their children to live in comfortably."
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10)
McDonald v. Smith, 1993 CarswellOnt 4222, [1993] O.J. No. 1680
"2. The applicant does not, in my view, wish the premises for occupancy; and in accordance with the definition of occupancy under the Act, which is normal residency; that is, use and control of the property for residential purposes as commonly understood as a main residence.
3. It would appear from the facts that the landlord wants to use the property occasionally when she travels this way when she is working, or occasionally she may want to make the property available to her friends or to her family, or she may want to visit it on weekend.
4. On the evidence, I find that this is not intended to be the main residence of the landlord; and for those reasons the case is dismissed."
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11)
"[3] The tenant takes issue with the Board’s finding of good faith. In effect, he asks this Court to reweigh the evidence. That is not our task. The Board identified the governing legal principles, including the onus on the landlord to demonstrate good faith. There was adequate evidence to support the Board’s finding that the landlord required the unit on a full time basis for his family. Accordingly, this ground of appeal raises no question of law.
[4] The only question remaining is whether the affidavit required by s. 72 of the Act must be provided by the son. The affidavit is to be sworn by the person who, in good faith, requires the unit for his or her personal use. The Act says “use” not occupation. Here, the Board accepted that the landlord requires the unit for his personal use. He seeks to use it himself along with his wife and son, who the Board found will live there on a full time basis. The requirement that the affidavit be provided as a confirmation of good faith is met. In our view, the affidavit was sufficient. Moreover, we note that the tenant failed to raise any issue of the sufficiency of the affidavit before the Board."
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12)
"[12] Counsel for the landlords argues that Board Member Van Delft committed neither error. He submits that the motives of the landlord in seeking possession are not relevant and that the only issue is whether the landlord genuinely requires possession for his or her own use. Counsel relies particularly on Salter v. Beljinac (2001), 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th)744(Ont. Div. Ct.) and Feeney v. Noble (1994), 1994 CanLII 10538 (ON SC), 19 O.R. (3d) 762 (Div. Ct.).
[13] Counsel submits that the time at which a determination must be made as to whether the landlord was in serious breach of his or her responsibilities under the Act is at the time the order of the tribunal is made. He submits that by the time the order on review was made by Board Member Van Delft, any default on the part of the landlords had been corrected. Thus, he submits, it was not necessary for Board Member Delft to determine whether the landlords were in breach at the time of the original order because it was no longer relevant. Once Board Member Delft had decided that there was a potential serious error on the first ground, it was open to the Board Member to conduct a de novo hearing, at which both issues would be determined.
[14] It is common ground that an appeal to this Court from an order of the Board can be brought only on a question of law. Section 210(1) of the Residential Tenancies Act provides as follows:
210(1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
[15] It has been determined by the Court of Appeal, and by this Court, that while an appeal on a question of law suggests that the appropriate standard of review is correctness, it actually is on a standard of reasonableness where the interpretation of the Act is in issue: see First Ontario Realty Corp v. Deng (2011), 2011 ONCA 54 (CanLII), 330 D.L.R. (4th) 461 (Ont. C.A.) and Marineland of Canada Inc. v. Olsen, 2011 ONSC 6522 (Div. Ct.).
[16] The question, then, before this Court is whether it was unreasonable for Board Member Van Delft to decide, as required by Board Rule 29.17, that the original order contained one or more serious errors in law justifying review. In our view, it was unreasonable for Board Member Van Delft to so conclude.
[17] We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.
[18] In this case, Board Member Beckett made a finding of fact that the notice that one of the landlords wished to occupy the property was not given in good faith. She decided that the credibility of the landlords was undermined because one of the landlords took the position that she wished to live in the house notwithstanding the other landlord’s belief that the unit was unsafe. In our view, the Board was entitled to take this into account in assessing the landlord’s credibility and in assessing the landlord’s good faith. In our view, Board Member Van Delft’s conclusion restricts the meaning of the term “good faith” to an unreasonable degree. By excluding any consideration of the landlord’s motives in deciding whether the landlord has acted in good faith, she has unduly restricted the consideration the Board must give to that term. We see nothing in Salter or Feeney, supra, to the contrary.
[19] It was also unreasonable of Board Member Van Delft to fail to consider the question of whether the landlord’s review application should have been refused by Board Member Beckett because the landlords were in serious breach of their responsibilities under the Act.
[20] Even if we accept the submission of counsel for the Respondents that it was open to Board Member Van Delft to find that the landlords were not in breach of their responsibilities at the time of the review hearing (a conclusion that is not mentioned in Board Member Van Delft’s decision), in order for Board Member Van Delft to order a review in the first place she had to find a serious error in Board Member Beckett’s decision. Board Member Beckett made a clear finding that, on the date of her decision, the landlords were in breach of their responsibilities under the Act. Thus, it was unreasonable of Board Member Van Delft to fail to address the issue of whether the landlords were in breach of their responsibilities on the date of Board Member Beckett’s decision.
[21] For these reasons, we hold that Board Member Van Delft erred in law by making an unreasonable decision and in undertaking the review, contrary to the requirements of the Board’s rules.
[22] Accordingly, the appeal is allowed and the order of Board Member Beckett is restored."
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