Miller Estate v. Arguelles, 2025 ONSC 112

CITATION: Miller Estate v. Arguelles, 2025 ONSC 112

DIVISIONAL COURT FILE NO.: DC-23-2196

DATE: 2025-01-07

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

The Estate of Ann Miller

Applicant Landlords

(Respondents in Appeal)

– and –

Suzanne Arguelles

Respondent Tenant

(Appellant in Appeal)

Joseph Kennedy, for the Respondent

Linda Naidoo for the Landlord and Tenant Board

Karen Andrews and Douglas Kwan, for the Appellant

HEARD: December 11, 2024

DECISION ON APPEAL

R.D. GORDON, J.

Overview

[1] In June of 2022 the landlords Ann Miller (the owner of the unit) and her son John Miller (the manager of the unit) sought the eviction of Suzanne Arguelles (the tenant) so that the unit could be occupied by Ann Miller’s daughter. On June 5, 2023 the Landlord and Tenant Board (the Board) determined that the notice to evict was valid and ordered the tenant out. The Board’s decision was affirmed on review. The tenant appeals the eviction order.

Background Facts

[2] The tenant has occupied the residential unit in question since 2017.

[3] On or about March 14, 2022 she was served with an N12 notice of eviction for landlord’s own use, requiring that she vacate the unit by May 31, 2022. Ann Miller, one of the landlords and the owner of the unit, indicated in the notice that she wanted the unit for her child to occupy as her residence.

[4] The tenant initially indicated her willingness to move but asked that she be allowed additional time to find another suitable unit. The landlords quite reasonably acceded to this request and, understanding that she had agreed to move out, made no application to act on the N12 notice that had been served. When the tenant was unable to find another suitable apartment, she refused to move. The landlords served her with a new N12 notice to evict for landlord’s own use dated June 29, 2022 requiring that she vacate the unit by August 31, 2022. In the N12 notice, the landlords were indicated as: “John Miller (Landlord) and Ann Miller (Owner)”. The N12 was signed by John Miller.

[5] On July 19, 2022 John Miller, as landlord, initiated an L2 application to end the tenancy and obtain an order for the tenant’s eviction predicated on the N12 notice that had been given. The hearing before the Board took place on March 9, 2023. In the interim, Ann Miller died. When the hearing took place, the property remained registered in the name of Ann Miller.

[6] There were three main issues raised at the hearing: (1) Whether the death of the landlord who was the owner of the unit when the N12 notice was given affected the Board’s ability to order eviction; (2) Whether the landlord’s failure to include details of the earlier N12 served on the tenant invalidated the application; and (3) Whether the landlord, in good faith, required the unit for use by a family member.

[7] With respect to the first issue, the Board held that validity of the N12 notice served while Ms. Miller was alive was not affected by her death. The Board went on to amend the name of the applicant to the Estate of Ann Miller.

[8] With respect to the second issue, the Board determined that since the tenant was fully aware of the earlier N12 notice, she suffered no prejudice if the application was amended to include it.

[9] With respect to the third issue, the Board found that although the tenant offered some possible alternative reasons of why the landlord may be seeking termination of the tenancy, those reasons did not rise above speculation. Based on all of the evidence the Board was satisfied that the good faith requirement was met.

Jurisdiction and Standard of Review

[10] Any person affected by an order of the Landlord and Tenant Board may appeal the order to the Divisional Court within 30 days after being given the order but only on a question of law. [See s. 210(1) of the Residential Tenancies Act, S.O. 2006, c. 17 (the Act)].

[11] Questions of law are reviewed on the standard of correctness.

The Issues on Appeal

[12] The tenant has not appealed the Board’s finding that the when the notice was given the landlord in good faith required the unit for occupation by her daughter.

[13] The tenant has framed the issues on appeal as follows:

Did the Board err in law by allowing the eviction application to proceed when the only landlord who had the statutory right to evict the tenant for landlord’s own use was deceased at the time of the hearing?
Did the Board err in law by amending the eviction application to The Estate of Ann Miller, without naming an executor, trustee or administrator to pursue the eviction application?
Did the Board err in law by adjudicating on the landlord’s eviction application when it had failed to disclose previous Notices to End the Tenancy for Landlord’s Own use?

The Applicable Law

[14] The issues raised by the tenant require interpretation of sections 2(1), 37, 39, 48, 69 and 71.1(3) and (4) of the Act. As recently confirmed by the Court of Appeal for Ontario in Elkins v. Van Wissen, 2023 ONCA 789, the modern approach to statutory interpretation requires that the words of the statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[15] The Act is remedial, having a “tenant protection focus” and must receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and sprit. [See Price v. Turnbull’s Grove Inc., 2007 ONCA 408].

[16] The sections in question appear in Part V of the Act, which deals with “Security of Tenure and Termination of Tenancies” and attempt to balance the right of a landlord to take occupancy of a unit with the right of a tenant to be free from unlawful eviction. A landlord may take occupancy of a unit for use by a family member, but only if the family member is sufficiently close, adequate notice is provided to the tenant, compensation is paid, and the landlord acts in good faith.

Analysis

The Death of a Landlord

[17] The tenant concedes that in this case the N12 notice was properly given because Ann Miller was named as a landlord and was a parent of the person for whom the unit was required. However, she argues that because of Ann Miller’s death, there was no longer a landlord who required possession of the unit for a child, as had been stipulated in the notice, when the hearing took place. As such, she submits it was an error in law for the Board to have ordered eviction.

[18] I am unable to agree.

[19] The N12 notice is the document upon which the application is based, and the hearing conducted.

[20] Section 48 provides that when the N12 notice is given, the landlord must in good faith require possession of the rental unit for the purpose of residential occupation by a child. Therefore, on its face, the inquiry concerns the intention of the landlord when notice was given. However, the law has evolved to indicate that the inquiry is not restricted to the moment in time the N12 is served and that a fair and meaningful assessment of good faith must also consider the parties’ conduct prior to at the time of, and subsequent to the giving of notice see [Elkins v. Van Wissen 2023 ONCA 789](https://www.minicounsel.ca/onca/2023/789), paras [46 and 47]].

[21] Accordingly, the question at the hearing is not whether there continues to be a landlord who requires the unit for occupation by his or her child, but (1) whether the N12 notice met the technical requirements of the Act, (2) whether, the landlord in good faith required possession of the rental unit for occupation by a child when the notice was given, and (3) whether, having regard to all of the surrounding circumstances, including the behaviour of the landlord between service of the N12 and the hearing, the good faith obligation of the landlord has been maintained.

[22] When the N12 was served, Ann Miller in good faith required the unit for occupation by her daughter. Her death did not change that. There was no breach of the continuing good faith obligation.

Amending the Applicant to “The Estate of Ann Miller”

[23] The tenant is of the view that the Board erred in law by amending the eviction application to name as a party an estate with no personal representative and that “The Estate of Ann Miller” is not an individual, as required for an eviction under s. 48 of the Act. I disagree.

[24] Section 48 does provide that a landlord giving notice to terminate so that a child may occupy the unit must be an individual. Ann Miller was a party to the N12 notice. She was an individual. She remained so when the application was issued. Her death did not make her any less an individual for the purposes of that notice.

[25] Although it may have been preferable for the Board to amend the application to reflect a trustee of Ann Miller’s estate, it was not necessary that it do so because a specific individual representative of the estate was not required to determine the issues in this case.

[26] In proceeding as it did, the Board complied with its mandate under s. 183 of the Act, to adopt the most expeditious method of determining the questions arising in a proceeding that afforded to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard upon the matter.

The Failure to Disclose

[27] Section 71.1(3) of the Act provides that a landlord who files an application based on a notice of termination given under s. 48 shall indicate whether or not the landlord has, within two years prior to filing the application, given any other notice under section 48, 49 or 50 in respect of the same or a different unit and provide particulars of such notices. Subsection (4) says that the Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).

[28] At the outset of the hearing, the landlord’s representative pointed out to the Board that although the application disclosed two other notices given, it did not include the notice given to the tenant in March of 2022. The Board exercised its discretion to amend the application to include the disclosure as made that day.

[29] The tenant argues that the Board has no such discretion - that once it determines the landlord has not complied with its obligation to disclose, its only choice is to dismiss the application.

[30] Once again, I disagree.

[31] The provisions in question attempt to balance the good faith rights of a landlord to take occupation of a residential unit with the rights a tenant to be free from wrongful eviction.

[32] The required disclosure ensures tenants have at least some of the information necessary to legitimately question the landlord’s good faith use of the s. 48 notice. That information may allow for further investigation by the tenant that reveals the landlord has not acted in good faith on earlier occasions. It may allow the Board to infer that a landlord is not acting in good faith in the application before it.

[33] However, it is important to note that the consequence of failing to comply with s. 71.1(3) is not to render the notice void, or to prohibit the landlord from bringing its application, or to dismiss the application. It is to refuse the filing of the application.

[34] If the non-compliance is apparent on its face, the application is simply refused so that the landlord can complete it properly and offer it for filing once again. It does not have the effect of rendering the notice invalid or prohibiting the landlord from then proceeding on it.

[35] Once the application is accepted for filing, there is nothing that prohibits amendment to include additional notice information. Indeed, Rule 15.4 of the Landlord and Tenant Board Specific Rules anticipates amendments to applications provided the amendment is appropriate, would not prejudice any party, and is consistent with a fair and expeditious proceeding.

[36] In this case the landlord made some disclosure in the application, and it was accepted for filing. As the tenant was the very person who had been served with the undisclosed N12 (and therefore must have known of it), it cannot be said she was prejudiced by its omission from the application.

[37] The amendment was appropriate, did not prejudice the tenant and was consistent with a fair and expeditious proceeding. I see no legal error.

Other Issues

[38] Although the Tenant included in her factum an argument that the Board erred in law by failing to consider and apply s. 83(1) and (2) of the Act, she did not pursue this ground of appeal with any vigor, and with good reason. It is clear the Board specifically considered s. 83 and, in considering all of the circumstances, granted her six months from the date of hearing to give up possession of the property. There was no error of law in its decision to do so.

Conclusion

[39] The Tenant’s appeal is dismissed.

[40] It has now been almost 33 months since she was served with the first N12 by which the landlord sought occupancy of the unit. By any measure, she has had adequate notice of the landlord’s intentions. However, one must appreciate the difficulties of moving during the winter months, and the need for her to secure other accommodations. In the circumstances, it is ordered that she move from the rental unit on or before April 30, 2025.

[41] In accordance with the submissions made by the parties, the tenant shall pay costs to the landlord in the amount of $2,000.00, all inclusive.

The Honourable Mr. Justice R.D. Gordon

Released: January 7, 2025