Overview

[1] The tenant, Mr. Trowbridge has appealed an order of the Landlord and Tenant Board dated October 3, 2023 that terminated his tenancy and a review order dated November 28, 2023 denying his request to review the initial order.

[2] The Board accepted the landlord’s evidence that he and his wife intended to occupy the rental unit. The landlord had testified that he planned to renovate the unit to return it to a single-family home. He filed his renovation plans, which included installing a wheelchair ramp and an elevator to assist with accessibility for his medical conditions and those of his wife. The landlord sought termination of the tenancy by issuing an N12 notice, which permits the termination of the tenancy where the landlord in good faith requires possession for at least one year for the purpose of residential occupation. Having accepted that the landlord, in good faith, required possession of the rental unit to reside in it, the Board terminated the tenancy effective November 30, 2023.

[3] The tenant’s primary submissions are:

(1) The Board erred and breached procedural fairness by failing to analyze whether the landlord was required to proceed using an N13 notice. A landlord can seek to vacate a rental unit using an N13 notice under the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) where the landlord requires vacant possession of the unit to demolish it, convert it to a use other than for residential purposes, or do extensive repairs or renovations. In the situation of extensive repairs or renovations, the tenant has procedural entitlements and a right of first refusal to return to the unit.

(2) The Board erred in applying the “primary motivation” test when it determined the landlord’s primary motivation for terminating the tenancy was for residential occupation. According to the tenant, using this test overlooked the requirement to consider the length of time it would take for the landlord to occupy the unit and that ten months was an unreasonable period. The tenant submits a landlord’s future intentions regarding a unit should not be grounds for eviction.

[4] Appeals from the Board are restricted to questions of law: s. 210. For the reasons that follow, I conclude the Board did not make any legal errors in its decisions.

Did the Board err in law or breach procedural fairness by failing to analyze whether the landlord was required to use the N13 process?

[5] The tenant submits the Board erred in accepting the landlord was permitted to proceed using the N12 process and in not analyzing (1) whether the N13 process was required and (2) whether the failure to use the N13 process breached procedural fairness.

[6] There was no error of law. The Board’s task was to determine whether the landlord had met the requirements of s. 48(1) of the RTA, which is the provision permitting the landlord to terminate the tenancy if he requires it in good faith for his own occupancy. A landlord is not required to follow the N13 process where they are able to meet the requirements of s. 48. In a given case, an adjudicator may determine the requirements of s. 48 are not met where the landlord’s primary motivation is to renovate and not to use the unit for their own occupancy. This does not place a requirement on a landlord to proceed using the N13 notice when they can meet the s. 48 requirements.

[7] Therefore, the Board did not err in the initial order when it found the case law related to N13 notices unhelpful. Similarly, the Board correctly found in the review order that the landlord was not was required to give a notice to terminate under s. 50(1)(c) of the RTA, which is the process that would require an N13 notice.

[8] Given that the Board found the landlord met the s. 48 requirements, there can have been no breach of procedural fairness in the landlord following the procedures prescribed by that section. This ground of appeal is dismissed.

Did the Board err in applying the “primary motivation” test and overlooking other factors relevant to s. 48?

[9] The Tenant submits the Board’s focus on the landlord’s primary motivation meant it failed to analyze other factors, such as that it would be ten months before the landlord would occupy the unit. In the tenant’s submission, a landlord cannot be considered to need the unit for their own “occupation” when that occupation would not start for ten months.

[10] I disagree for several reasons. First, the Board member’s analysis did not end with the conclusion on the landlord’s primary motivation. The Board member went on to conclude that the landlord in good faith required possession of the rental unit for the purpose of his own residential occupation for at least one year. The Board member found the landlord’s testimony to be genuine and consistent and therefore credible.

[11] Second, there is no express requirement in s. 48 for the landlord to occupy the unit within a reasonable time. Whether the landlord intends to occupy the unit within a reasonable time may be a relevant factor in determining good faith intentions in the circumstances of a particular case. In this case, it was implicit in the Board’s analysis that the estimated ten months for renovations did not prevent a finding that the landlord was acting in good faith. The Board’s finding that the landlord was acting in good faith is a factual finding that is outside this court’s jurisdiction.

[12] Third, s. 57 of the RTA does not change this analysis, as submitted by the tenant. Section 57 authorizes the Board to grant various remedies where a former tenant brings an application after vacating the rental unit. Under s. 57(1)(a), the tenant can obtain a remedy if they are able to demonstrate the landlord gave a notice under s. 48 in bad faith and did not occupy the rental unit within a reasonable time after the unit was vacated. A s. 57 application will remain open to the tenant after he vacates the unit, but it does not undermine the Board’s finding under s. 48 that the landlord was acting in good faith.

Disposition

[13] Therefore, the appeal is dismissed.

[14] The tenant submitted costs of $3,500 would be appropriate should he be unsuccessful. In submitting this number, he relied in part on his impecuniosity. The landlord sought partial indemnity costs of just over $8,000. In my view, costs of $6,000 are appropriate for an appeal of this nature. I agree with the landlord that the tenant introduced statutory interpretation arguments that required some effort to properly address. Therefore, the tenant shall pay costs of $6,000 to the landlord.

[15] To allow the tenant some time to arrange for new housing, he must vacate the rental unit no later than August 31, 2024. The court enforcement office may enforce the eviction order effective September 1, 2024.

O’Brien, J

Released: July 18, 2024

CITATION: Trowbridge v. Skjodt, 2024 ONSC 4060

DIVISIONAL COURT FILE NO.: DC-23-00000739-0000

DATE: 20240718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

KURTISS TROWBRIDGE

Appellant

and –

DAN SKJODT

Respondent

REASONS FOR DECISION

O’BRIEN, J

Released: July 18, 2024

Trowbridge v. Skjodt, 2024 ONSC 4060

Case Summary

Overview

Did the Board err in law or breach procedural fairness by failing to analyze whether the landlord was required to use the N13 process?

Did the Board err in applying the “primary motivation” test and overlooking other factors relevant to s. 48?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues