Eligibility for N12 / What if the eligible relative who moves in is not the same relative who is listed on the N12?

 


1. Who qualifies as a "spouse"?
2. What qualifies as "care services"?
3. What if the eligible relative who moves in is not the same relative who is listed on the N12? Is it bad faith?

We know that the RTA allows the use of N12 only for own residential use by landlords (who must be individuals, not corporations, as per RTA ss. 48(5)) or purchasers or their eligible family members, i.e. children, parents, spouses, spouses' children or parents, or "persons who provide or will provide care services" for any of the above "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".

We also covered in a recent post that if a sale falls through, but there is now a new buyer, a new N12 would need to be issued (e.g. see CEL-00894-21). Adjudicators check dates on N12 and agreements of purchase and sale (APS) to make sure that the N12 was not issued *before* the current APS was signed.

Now, let's look at definition of (1) "spouse", (2) "person who provides or will provide care services" and (3) what happens if the eligible relative listed on the N12 is not the same one who ends up occupying the unit for residential use.

1. Definition of a "spouse"

From RTA section 2 ("Interpretation"):
"“spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)."

2.
Definition of "care services"

From RTA section 2 ("Interpretation"):
"“care services” means, subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living; (“services en matière de soins”)"
O. Reg. 516/06 section 2 provides a list of care services included in this definition: https://www.ontario.ca/laws/regulation/060516#BK2

An LTB example that goes into some detail in regards to what might qualify for "care services":
TST-84913-17 (Re), 2017 CanLII 60859 (ON LTB), <https://canlii.ca/t/h5zpl>

"The Landlord’s caregiver did not move into the rental unit

8.      CM is the Landlord’s friend and she, together with EG, have been appointed powers of attorney for the Landlord’s property and personal care. Both CM and EG testified that they have observed a decline in the Landlord’s mental health over the past two or three years. CM testified that the Landlord was recently diagnosed with mild to moderate dementia by her family doctor. CM testified that she and EG sought to be appointed powers of attorney for the Landlord after they observed that the Landlord was unable to manage her clothing business effectively. In her testimony, CM focused on the Landlord’s inability to operate her business lucratively. CM testified that the Landlord is unable to pay her suppliers and she has been sued by construction companies that did work on her store. CM testified that the Landlord continues to work in the store every day; she just cannot operate a solvent business.

9.      CM testified that she helped the Landlord prepare the N12 so that EG could move into the rental unit and help her.  When asked what type of help EG provides the Landlord, CM testified that EG prepares meals for the Landlord, she goes to the bank with the Landlord, she helps the Landlord with her finances and she provides emotional support.

10.   EG is also the Landlord’s friend. EG testified that she moved into the rental unit on December 9 or 10, 2016 and since then she has been helping the Landlord in various ways. EG testified that the help she provides includes taking the Landlord to medical appointments, bringing the Landlord food, offering emotional support, helping with the Landlord’s banking and taking inventory for the Landlord’s store.

11.   EG testified that she typically spends half hour to one hour with the Landlord each day, although she spends much longer with the Landlord when EG takes her to doctor appointments. EG testified that she does not work for the Landlord and the Landlord does not pay her. EG testified that she works full-time as a front-line addiction worker. EG testified that she pays rent to live in the rental unit. EG testified that when she first moved into the rental unit she was paying $1,500.00 per month but she subsequently began found a roommate and together they pay the Landlord $1,800.00 per month. EG testified that she is still living in the rental unit.

12.   Based on the evidence presented, I am not satisfied on a balance of probabilities that EG can be considered the Landlord’s “caregiver” as contemplated by the Act. Section 48(1)(d) of the Act allows a landlord to serve a tenant notice of termination if he or she in good faith requires possession of the rental unit for the purpose of residential occupation by a person who provides or will provide care services to the landlord.

13.   Section 2(1) of the Act defines “care services” as, subject to the regulations, health care services, rehabilitative or therapeutic services or services that provide assistance with the activities of daily living.

14.   Section 2(1) of the General Regulation, O. Reg. 516/06, provides the following list of specific services that are included in the definition of “care services” in subsection 2(1) of the Act: nursing care, administration and supervision of medication prescribed by a medical doctor, assistance with feeding, bathing assistance, incontinence care, dressing assistance, assistance with personal hygiene, ambulatory assistance, and personal emergency response services.

15.   Section 2(2) of O. Reg. 516/06 provides an additional list of services that are considered “care services” if they are provided along with any services set out in section 2(1) of the regulation – recreational or social activities, housekeeping, laundry services and assistance with transportation.

16.   When the above provisions of the Act and the regulation are read together, I find that the legislation contemplates that “care services” is meant to capture intensive, regular supports. Based on EG’s testimony, I find that the supports that she provides the Landlord do not rise to the level of involvement and intensity to be considered “care services” and they do not justify evicting the Tenants. While there is no dispute that EG provides some help to the Landlord in the form of bringing her food at the end of the day and helping her manage her financial affairs, these supports are provided on a more part-time and casual basis. I am not convinced that EG must live in the residential complex in order to provide this help to the Landlord.

17.   In making my determination that EG does not provide care services to the Landlord, I also considered the following evidence:

        CM’s testimony that the Landlord still works in her store all day on her own. This indicates that the Landlord is capable of functioning independently and does not require “care services”.

        No medical evidence was submitted to confirm that the Landlord has dementia. CM and EG submitted a letter from the Landlord’s doctor which only confirms that the Landlord is a patient of her clinic and is receiving medical care. Therefore, there is no evidence before me to suggest that the Landlord requires intensive supports to manage in her activities of daily life.

        CM and EG submitted a document called “letter of opinion regarding capacity to manage/make decisions regarding property”. The report was prepared by a social worker and it provides an opinion regarding whether a power of attorney for property should be appointed for the Landlord. Although the report recommends a power of attorney, it only deals with the Landlord’s ability to manage and make decisions about her property. The report does not talk about the Landlord’s need for a caregiver or for supports that may be considered “care services”. Even with respect to her property, the report states “Although [the Landlord] demonstrated cognitive deficiencies, she appeared to have some understanding of her financial and business affairs to be able to grant a Power of Attorney if she so chose.” This statement suggests that the Landlord’s mental health is not so bad that a Power of Attorney is necessary, only if the Landlord so chose.  

        In the report, the social worker wrote “[The Landlord] stated that if she were to decide to grant a Power of Attorney for Property, she would most likely choose [EG] ‘because she has no family and lives upstairs. She helps me now sometimes’” [emphasis added]. The report was prepared in March, 2017, after EG had moved into the rental unit. The Landlord did not attend the hearing to explain what she meant by this statement or to describe what, in particular, EG does to help her. Therefore, I am left with the plain meaning of the Landlord’s words in this report, which suggests that EG provides support to her on an occasional basis only.

18.   For the reasons set out above, I am satisfied on a balance of probabilities that EG is not the Landlord’s caregiver and she does not provide “care services” to the Landlord as defined by the legislation. Therefore, I am also satisfied on a balance of probabilities that a person who provides care services to the Landlord did not move into the rental unit within a reasonable time after the Tenants vacated the unit.

The Landlord gave the notice of termination in bad faith"



3.
What will happen if the N12 lists one relative, but another one (who is also eligible under an N12) moves in? Would this be indicative of bad faith?

Interestingly, this question is not settled in law, and this is shown well in the citation from Jack Fleming's Residential Tenancies in Ontario and in the two LTB rulings below from 2019 (both cases were heard within just days of each other).

1)
Jack Fleming's Residential Tenancies in Ontario, 3rd Ed. (LexisNexis Canada Inc. 2015), at page 906:

"Interestingly, a condition for bringing the bad faith application based on a s. 48 of 2. 49 notice is that “no person” referred to in the list of allowable occupants occupied the rental unit – if the person who was the subject of the notice and application does not move in, but someone else from one of the allowable classes of occupants does, it seems that the former tenant would be precluded from bringing an application. Alternatively, the section may be interpreted as meaning that the individual named in the notice must have failed to occupy, which is a more reasonable interpretation although not matching the specific language in the Act."


2)
Anna Solomon states in TST-00312-18 (Re), 2019: "I do not think that the fact that the N12 Notice indicates that the purchaser (as opposed to the purchaser’s parent or a spouse’s parent) intended to move in is in itself determinative of bad faith", and adds that "it does not appear to be material".

TST-00312-18 (Re), 2019 CanLII 87633 (ON LTB), <https://canlii.ca/t/j2hmm>

"12.   By the Tenant’s own evidence, the purchaser’s mother or mother-in-law occupies the rental unit and has been doing so since at least the end of October, 2018 or beginning of November, 2018. A parent of the purchaser or of the purchaser’s spouse are people referred to in section 49(1)(c) of the Act. I am satisfied that this individual occupied the rental unit within a reasonable time after the Tenant vacated the rental unit. I do not think that the fact that the N12 Notice indicates that the purchaser (as opposed to the purchaser’s parent or a spouse’s parent) intended to move in is in itself determinative of bad faith. Section 57(1)(b) refers a situation where none of the people listed in section 49(1) or (2) move into the rental unit (it does not appear to be material if the person who moved into the rental unit is not the same person listed on the N12 Notice). Therefore, I find that this element of section 57(1)(b) is not satisfied."



3)
However, Ruth Carey states in TET-97174-18 (Re), 2019: "I do not believe that is the actual intent of the provision. If the Landlord had wanted the rental unit for his daughter he was free to serve notice of termination saying so. The intent of the provision is to stop landlords from evicting tenants in bad faith. Giving notice for one person and then substituting another family member after the fact may genuinely occur because of a change of circumstances but it is also consistent with bad faith. [...] As a result, [...] the person referred to in the notice did not move into the rental unit within a reasonable time".

TET-97174-18 (Re), 2019 CanLII 87067 (ON LTB), <https://canlii.ca/t/j2gn7>

"16.   One issue that was not raised by the parties that arises from the wording of this provision is with respect to the assertion of the Landlord that his daughter moved into the rental unit instead of himself. Assuming without finding that is true, could the Landlord argue that he may have given notice for himself but the wording of s. 57(1) that “no person referred to in clause 48 (1) (a), (b), (c) or (d) occupied the rental unit” indicates he can substitute his daughter for himself because she is a person described in s. 48(1)(c)?

17.   I do not believe that is the actual intent of the provision. If the Landlord had wanted the rental unit for his daughter he was free to serve notice of termination saying so. The intent of the provision is to stop landlords from evicting tenants in bad faith. Giving notice for one person and then substituting another family member after the fact may genuinely occur because of a change of circumstances but it is also consistent with bad faith. As the intent is to stop bad faith notices from happening, it makes little sense that the Legislature would permit a landlord to give notice for one person, and then substitute a different family member after the fact. As a result, I believe the legislature intended the provisions in the Act to mean that s. 57(1) applies to the situation where the person identified by the notice fails to move in.

18.   This is also the conclusion reached by legal writers in the field. Jack Fleming in Residential Tenancies in Ontario, 3rd Ed. (LexisNexis Canada Inc. 2015) writes at page 906:

Interestingly, a condition for bringing the bad faith application based on a s. 48 of 2. 49 notice is that “no person” referred to in the list of allowable occupants occupied the rental unit – if the person who was the subject of the notice and application does not move in, but someone else from one of the allowable classes of occupants does, it seems that the former tenant would be precluded from bringing an application. Alternatively, the section may be interpreted as meaning that the individual named in the notice must have failed to occupy, which is a more reasonable interpretation although not matching the specific language in the Act.

[Emphasis added.]

19.   See also Richard A. Feldman, Residential Tenancies, 11th Ed. (Thompson Reuters Canada Limited, 2018) at pages 540 to 542.

20.   As a result, I am satisfied that the Landlord gave notice to terminate under s. 48, the Tenant moved out pursuant to that notice, and the person referred to in the notice did not move into the rental unit within a reasonable time after the Tenant vacated."


Which approach do you find to be correct?





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