Boomer v. Arvane Farms Ltd., 2025 ONSC 1772
DIVISIONAL COURT FILE NO.: 231/23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, LeMay, Shore JJ.
BETWEEN:
Joel Yinger and Karen Andrews, for the Appellants
Timothy Boomer, Debra Coulter, Darrell Goodlet, Jane Person, Larry Roswell, Larry Lesage, Lloyd Parks, Kristy Hutchinson and Brian Roberts
Appellants
– and –
Arvane Farms Ltd.
Respondent
Matthew Harmes, for the Respondent
HEARD: January 28, 2025, by videoconference
REASONS FOR DECISION
1The Appellants are ten tenants of a mobile home park (the "Tenants"). Their mobile homes sit on land rented from the Respondent ("Landlord"). The Landlord’s principal is Robert Kowtaluk, owner of Arvane Farms Ltd.
2The Landlord sought to evict the Tenants, to close the park and convert the land to non-residential use. He was successful in his application before the Landlord and Tenant Board ("LTB").
3This is an appeal of three Landlord and Tenant Board decisions. There are two sets of merits decisions dated October 22, 2022, and January 3, 2023, and a review decision dated September 1, 2023. Each set of decisions dealt with the ten appellants, thereby resulting in a total of at least 21 decisions. The decisions allow the Landlord's application to evict the Tenants from the mobile home park so that the Landlord can convert the property to non-residential use.
4For the reasons below, the appeals are dismissed, with costs to the Landlord in the agreed sum of $5,000 inclusive.
Factual Background:
5The Tenants reside in mobile homes located on a portion of the land owned by the Landlord. The Tenants own their mobile homes. They pay monthly rent of between $341 and $370 to lease the land on which their homes sit. Most of the Tenants are senior citizens on fixed/low incomes.
6When the Landlord acquired the property, it was already zoned for commercial purposes. The mobile homes are currently allowed as a legal non-conforming use. Once the mobile homes are removed, the property will automatically revert to commercial use.
7Section 50(1) (b) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 ("RTA"), authorizes a landlord to evict their tenants if they require possession of the property to "convert it to use for a purpose other than residential premises".
8The first step in the process is to serve a Notice of Termination, called an "N13". The Landlord initially served the Tenants with N13 Notices, with a termination date of October 21, 2020. However, the municipal address on the notice was described as 495 Queensway. The property is described as both 493 and 495 Queensway, and the Tenants were situated on 493 Queensway.
9Out of an abundance of caution, on November 27, 2020, the Landlord served the Tenants with new N13 Notices, with the corrected address, and with a new termination date of November 30, 2021, giving the Tenants a further year's notice to find alternate accommodations.
10A notice becomes void 30 days after the termination date specified in the notice, unless the Landlord applies for an order terminating the tenancy and evicting the tenants: see RTA, s. 46. Therefore, the Landlord filed an application with the LTB to terminate the tenancy.
11Sometime thereafter, the Landlord entered into an agreement to lease the land to the Equipment Centre Simcoe 2.0 Ltd., his daughter's business, which is located on the adjacent property.
12At the initial hearing, an interim order was made, dated October 18, 2022, on the issue of the validity of the Notices of Termination ("Notice Decision"). The Tenants submitted that the notices were defective and therefore, should be dismissed. The notices were upheld. The Notice Decision is the first of the three decisions being appealed.
13At the subsequent hearing, the Tenants submitted that the Landlord was not acting in good faith, and even if the Landlord had proven the grounds for eviction, the eviction should be refused, having regard to all the circumstances.
14On January 3, 2023, the LTB ordered the eviction of each of the Tenants but delayed enforcement by six months ("LTB Decision"). The LTB Decision is the second decision being appealed.
15The review hearing took place, and on September 1, 2023, the LTB denied the Tenants' requests ("Review Decision"). The Review Decision is the third decision being appealed.
16The Tenants have a right to appeal the orders of the LTB to the Divisional Court pursuant to s. 210 of the RTA, but only on a question of law.
17The tenants have raised the following issues:
(1) Whether the LTB applied the wrong test for sufficiency of the N13 notices;
(2) Whether the LTB applied the wrong test for "good faith," under s. 73(1)(a); and
(3) Whether the LTB erred by failing to consider relief from eviction pursuant to s. 83(1)(a).
Standard of Review:
18The standard of review for a question of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8. Correctness review requires no deference: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
There was no error regarding the sufficiency of the N13 notices:
19The Tenants submit that the notices were defective, and the applications should have been dismissed. They submit that the notices did not strictly comply with the requirements set out in s. 43(2) of the RTA, and the LTB erred in its interpretation of s. 43(2).
20Section 43(2) provides that if notice is given by a landlord, it shall also set out the reasons and details for the termination and inform the tenant that “(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”. If the landlord applies for an order, the tenant is entitled to dispute the application.
21Notices of eviction that do not comply with the mandatory content requirements are void and cannot be amended.
22The notices of termination served on the Tenants were identical and provided as follows:
Closure and conversion to a commercial development.
The subject lands are zoned "Service Commercial" and were acquired by the land owner as an investment property for future commercial development. The Landlord wishes to convert the use of the lands to commercial, in keeping with the relevant By-Law and for this purpose, closure of the park is required.
The subject lands will be kept for commercial development, developed by the Landlord, or sold for "Service Commercial" purposes.
23The Tenants submit that the notices were void for two reasons:
(1) The notices failed to provide sufficient reasons and detail about how the Landlord intended to carry out the conversion, and that it was so vague that it was impossible for the Tenants to know the case to be met and whether/how to dispute it; and
(2) One of the stated potential intended uses, the sale of the property, is not conversion to a non-residential use.
24On the first issue, the Tenants submit that the notices were too vague. They did not know how the conversion would take place. Thus, they could not make an informed decision about how to contest the Landlord's claim.
25The Tenants submit that the LTB failed to use the test as set out in Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.), and therefore, erred in law. In Ball, this Court articulated the purpose for requiring a landlord to provide reasons and details, including that the tenant is entitled to know the case to be met and to make an informed decision about whether to dispute the allegations.
26The LTB refers to the test in Ball at paragraph 31 of its Review Decision, and correctly summarizes that it is necessary to consider the context of each case to determine whether there is sufficient detail.
27In Ball, the landlord served an N5 notice of termination. The landlord had to give sufficient details so that the tenants understood what was required to void the notice. Those facts do not apply in this case. At paragraph 16 of the Notice Decision, the LTB found that the notice served by the Landlord provides enough information for the Tenants to understand that the Landlord is asserting an intention to convert the rental units to commercial use and as a result will require closure of the mobile park. This is not an error of law but a finding of fact, a ground of appeal unavailable to the Tenants.
28The Notice Decision held that the name and nature of the business that will occupy the property once it has been converted is not required and that it was sufficient to state that the property will be kept for commercial development.
29The Review Decision provides that the notices could have provided more details and been clearer, but still met the requirements under s. 43(2). The level of specificity and the nature of detail required will change with the context of the notice. The Board then carefully considers the test set out in Ball. This decision also recognizes that in Ball, the notice had to provide sufficient details because the notice of termination was voidable under s. 64(3). The same rationale does not apply in this case, because the notice is not voidable, and the same level of detail would not be required.
30Having considered the test in Ball and the context of this case, the LTB was satisfied that there was sufficient detail in the notice to meet the requirements of s. 43(2). In the context of this case, the property is already zoned for commercial use and no permits are required. The only step needed to convert the property is to stop using the land as a mobile home park.
31I find that neither the Notice Decision nor the Review Decision contain an error of law on this issue.
32On the second issue, the Tenants submit that the failure to address the issue of the sale prevents them from seeking meaningful review. However, the Notice Decision addresses the issue of the sale. The LTB found that the mere fact that the notice mentions a possible future sale does not render it invalid. The Member correctly identified that if the Landlord intended to sell the property, a different notice, an N12 Notice should have been used. The sale was mentioned as something that could occur in the future. The property was not currently for sale and was not the ground for the termination.
33Again, the Review Decision addresses this. The possibility of a sale is at the end of the details that the Landlord provided, a reference to one of the possible outcomes, once the property was converted.
34I find no error of law in this regard.
There was no error in finding good faith under s. 73(1)(a)
35Section 73(1) provides that the Board shall not make an order terminating the tenancy and evicting the tenant, under s. 50, unless it is satisfied that the landlord intends in good faith to carry out the activity on which the notice of termination was based, and the landlord has obtained all necessary permits, etc.
36The Tenants submit that the LTB applied the wrong test for good faith, under s. 73(1)(a), in that the good faith must be established at the time the notices were served, and not at the date of the hearing.
37The LTB refers to, and relies on, Fava v. Harrison, 2014 ONSC 3352 (Div. Ct.), which provides that the Board can consider the conduct and motives of the landlord to draw inferences as to whether the landlord desires, in good faith, to convert the land use. The original decision of the Board was restored in Fava, including the finding that the notice indicating that one of the landlords wished to occupy the property was not given in good faith.
38As set out in the Review Decision, the LTB Decision contains considerable detail concerning the activities of the Landlord since it acquired the property, including that the Landlord is not in the business of operating as a residential landlord. The Landlord wished to enter into a lease agreement well before the notice was served and at the time of purchase there was a single-family dwelling on the land and the Landlord obtained vacant possession, obtained the necessary permits, and then demolished the dwelling as part of the conversion. The decision also considered that prior N13 notices were served, and then withdrawn because they misidentified the land.
39At paragraph 95 of the LTB Decision, the Board concludes that there is no evidence before them that the Landlord has any intention other than to change the property to non-residential use and lease the property to Equipment Centre Simcoe 2.0 Ltd.
40It was open to the Member to conclude that the Landlord had always intended to close the park, and still intends to close the park.
41I find that the correct legal tests were applied and there was no error in law.
The LTB considered whether to grant relief under s. 83(1)(a)
42The Tenants submit that the LTB failed to consider whether to exercise its discretion and refuse to grant the application.
43Section 83 provides as follows:
83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
44So long as the reasons, taken together with the record, permit a reviewer to understand why a decision maker reached its decision, the reasons are sufficient.
45There is a heading in the LTB Decision "Relief from Eviction". The first paragraph under that hearing, paragraph 102, provides, that:
I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to postpone the eviction until June 30, 2023 pursuant to subsection 83(1)(b) of the Act.
46Although the hearings were heard together, the LTB Member wrote ten separate decisions. Each decision set out the specific circumstances of that Tenant, including their health, their financial circumstances, their living arrangements, their history at the park, any improvements made to their homes, whether they could sell or move their home, and their circumstances if they are evicted.
47The Member then spent time in each of the ten decisions, going through further considerations as to why it was appropriate to postpone the eviction, and in this, addressed why the Landlord is entitled to terminate the tenancy, receiving vacant possession.
48The LTB Decision also finds that at the time of the hearing, the Tenants have already had more than three years notice of the impending conversion to non-residential use.
49The Review Decision provides lengthy reasons as to why they conclude that while the Member may not explicitly describe the parties' circumstances under the heading of 'Relief from Eviction', the reasons are not void of indications as to why the Member decided that an outright refusal of eviction would not be appropriate. Other parts of the LTB Decision provide ample reasons for refusing an outright denial of the application.
50I find that the LTB fulfilled its obligation under s. 83(2) and reviewed the circumstances and considered whether to exercise its powers. I find no error in law.
51For the reasons above, the appeal is dismissed.
Costs:
52The parties agreed on costs to the Respondent, in the sum of $5,000 inclusive, if the appeal was dismissed.
Disposition:
53The appeal is dismissed, with costs to the Respondent in the sum of $5,000 inclusive.
“Shore J.”
I agree “Lococo J.”
I agree “LeMay J.”
Released: March 27, 2025
CITATION: Boomer v. Arvane Farms Ltd., 2025 ONSC 1772
DIVISIONAL COURT FILE NO.: 231/23
DATE: 20250327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, LeMay, Shore JJ.
BETWEEN:
Timothy Boomer, Debra Coulter, Darrell Goodlet, Jane Person, Larry Roswell, Larry Lesage, Lloyd Parks, Kristy Hutchinson and Brian Roberts
Appellants
– and –
Arvane Farms Ltd.
Respondent
REASONS FOR Decision
Released: March 27, 2025