Beach v. Chowdhury, 2026 ONSC 1988

CITATION: Beach v. Chowdhury, 2026 ONSC 1988

DIVISIONAL COURT FILE NO.:: DC-25-00000728-0000

DATE: 20260402

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

ROSEMARY BEACH Appellant

– and –

SHIRINA CHOWDHURY Respondent(s)

Lou Brzezinski Counsel, for the Appellant

Delaram Jafari Counsel, for the Respondent(s)

HEARD via videoconference: March 31, 2026

REASONS FOR DECISION

O’Brien J:

Overview

1The appellant appeals from two orders of the Landlord and Tenant Board. In the initial order, dated July 8, 2025, the Board terminated the appellant’s tenancy on the basis that the respondent landlord required the rental unit in good faith for residential occupation by her daughter. In the second order, dated August 27, 2025, the Board dismissed the appellant’s request for review.

2During the three-day hearing leading to the initial order, the Board heard testimony from the landlord’s daughter, who said she currently lives with her husband and two children in a house with her mother, father and brother. Her immediate family only occupies one bedroom of the house. She also testified she and her husband were financially constrained and could not pay for alternate housing. The Board accepted this evidence and dismissed the tenant’s argument that the landlord had initiated the application because of disputes with the tenant over maintenance issues. The Board also dismissed the tenant’s submissions that the statutory notice of eviction was not properly served and that the daughter’s attached declaration that she required the rental unit for her own personal use did not satisfy statutory requirements.

3On the request for review, the Board member concluded the Board in the original order was entitled to rely on the daughter’s oral evidence to determine the issue of good faith rather than dismissing the application on the basis of the wording of the declaration. She also dismissed the submission that the landlord’s motives were not considered. She found no error in the Board’s termination of the tenancy without hearing testimony from the landlord. She also found no error in the Board refusing to consider the tenant’s applications at the same time as the landlord’s application and in limiting the examination of witnesses during the hearing.

4In this court, the appellant’s primary submission is that the Board erred by making a finding of good faith on the part of the landlord without hearing testimony from the landlord. The appellant also submits the Board erred by not joining the tenant’s applications about maintenance issues with the landlord’s applications, which resulted in the Board limiting the tenant’s evidence on the maintenance issues. Finally, the appellant submits the Board erred by permitting an order terminating the tenancy when the daughter’s declaration did not comply with statutory requirements.

5The court’s jurisdiction on appeal is limited to questions of law, including questions of procedural fairness. The standard of review is correctness: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), s. 210, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at paras. 26-29.

Analysis

6Contrary to the landlord’s submission, there was no error in the Board finding the landlord was acting in good faith without testimony from the landlord. The landlord sought to terminate the tenancy under s. 48 of the RTA, which provides in relevant part:

48(1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,

(c) a child or a parent of the landlord or the landlord`s spouse.

7Subsection 72(1) of the RTA prevents the Board from making an order terminating the tenancy under s. 48 unless the landlord has filed with the Board an affidavit or declaration sworn by the person who personally requires the rental unit certifying that the person in good faith requires the rental unit for his or her own personal use for a period of at least one year. However, there is no requirement in the RTA for the landlord to file such an affidavit or declaration. There is also no specific requirement for the landlord to testify. As the Board member stated at para. 10 of the review order: “The Tenant has not identified any provision in the Act, or in the LTB’s rules or guidelines, that requires a landlord’s testimony to terminate a tenancy.”

8Of course, the landlord had the burden of satisfying the Board she in good faith required the property for her daughter’s use. But the landlord’s decision not to testify in this case was understandable. She did not testify because of language difficulties. Further, the landlord provided the Board with personal evidence in the form of a signed declaration. In the declaration, the landlord stated that her daughter and daughter’s family intended to move into the rental property and that the landlord understood the daughter was required to live in the property for at least 12 months. Overall, while the landlord had the burden of establishing her good faith, there was no requirement that she testify to satisfy that burden.

9Elkins v. Van Wissen, 2023 ONCA 789 is distinguishable. That case addresses the situation where a landlord gives notice to the tenant that a purchaser of the property requires the unit for their own use. Section 49 of the RTA permits a landlord who has entered into an agreement of purchase and sale to, in certain circumstances, give notice of termination on behalf of the purchaser if the purchaser in good faith requires possession of the rental unit. Pursuant to s. 57(1)(b) of the RTA, the tenant can apply to the Board for an order that the landlord gave a notice of termination in bad faith.

10In the context of those provisions, the Court of Appeal concluded the Board erred by failing to consider whether the purchaser in good faith required the property for residential occupation. The Court was concerned with the liability of a purchaser who does not act in good faith even if the landlord did not act in bad faith.

11That is an entirely different question from the issue in the case at bar. Elkins does not address the appropriate evidence to make the determination about good faith. Here, the Board considered the daughter’s testimony and the other evidence before it, including the evidence of the appellant, to conclude, as set out at para. 19 of the initial order, that the landlord in good faith required possession of the rental unit for her daughter. There was no legal error in that conclusion.

12I also do not find any breach of procedural fairness in the Board refusing to hear the tenant’s applications together with the landlord’s application. The tenant had filed two applications seeking compensation for maintenance issues. She sought to have them joined and heard with the landlord’s application. The Board member refused to join them because the tenant only filed her applications shortly before the hearing. The landlord’s application had been ongoing for over a year and scheduled to be heard on an expedited basis during an urgent hearing block. The Board member acknowledged there could be some relevant evidence related to the tenant’s applications at the hearing before her. She stated she would allow that evidence but that she was not prepared to determine the tenant’s applications themselves, including whether compensation was due to the tenant.

13The Board’s ruling was well within its authority to control its own procedure. The Board member was also entitled to limit the evidence on the maintenance issues. She was not determining those applications. There was no breach of procedural fairness since the Board directly addressed the central point of the maintenance issues as they related to the landlord’s good faith. That is, at paras. 26 to 29 of the initial order, the Board considered the tenant’s argument that the landlord served the notice to terminate the tenancy as retaliation over maintenance disputes and, particularly, because of a dispute over a large water bill. The Board dismissed the argument, relying on (1) the landlord having served a separate notice of termination regarding non-payment of the water bill; and (2) the fact that the daughter’s testimony was not discredited by the tenant’s maintenance disputes. In short, the Board member appropriately considered the evidence of the maintenance issues as submitted by the appellant but ultimately did not agree they demonstrated an absence of good faith. There was no breach of procedural fairness in the treatment of the maintenance applications or related evidence.

14Finally, I disagree with the appellant’s submission that the Board erred by finding the daughter in good faith required the unit for her own residential occupation because of what the appellant says was a non-compliant declaration under s. 72(1) of the RTA. As set out above, s. 72(1) required the daughter to file an affidavit/declaration certifying that she in good faith required the rental unit for her own personal use for a period of at least one year.

15The Board found the daughter had substantially complied with this requirement by stating in her declaration that she would occupy the property personally and that neither she nor her mother would rent the property for a minimum of twelve months. The Board also concluded the question of good faith was to be determined at the hearing on all the evidence.

16There was no error in this analysis. Section 212 of the RTA states that “substantial compliance with this Act respecting the contents of forms, notices or documents is sufficient.” Further, in Sertic v. Mergarten, 2017 ONSC 263, at para. 7, Nordheimer J. (as he was then) dismissed the same argument:

While the tenant raises issues regarding the bona fides of the landlord’s desire to occupy the premises for her own purposes, the Vice-Chair heard the evidence on this point, and was satisfied that was the intention of the landlord. The tenant submits that that finding was not open to the Board because the landlord’s affidavit did not so state. I am unaware of any legal principle that provides that the contents of an affidavit overrules the viva voce evidence heard. While conflicts between the two are always a matter of concern, it is ultimately up to the trier of fact to decide what evidence they accept and what they do not. The Board accepted the viva voce evidence of the landlord. There is no basis for this court to interfere with his conclusion on the evidence that he heard.

17In this case, the Board accepted the viva voce evidence of the landlord’s daughter and was entitled to do so. This ground of appeal is dismissed.

Disposition

18The appeal is dismissed. The appellant shall pay costs in the agreed-upon amount of $5,000.

O’Brien, J.

Released: April 2, 2026

CITATION: Beach v. Chowdhury, 2026 ONSC 1988

DIVISIONAL COURT FILE NO.:: DC-25-00000728-0000