1. Definition of a "spouse"
(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"
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.
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, 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.]
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