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RTA - Personal and Purchaser Possession (3). Kim v. Leung
In Kim v. Leung (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a tenant's RTA s.210 appeal, here from three related orders.
Here the court considers 'good faith' in the context of an RTA s.48 ['Notice, landlord personally, etc., requires unit']:[14] .... As the Board member stated, the test for determining whether a landlord intends to occupy a unit as his residence does not consider whether his intended use is reasonable, but only whether it is genuine: Salter v. Beljinac, 2001 CanLII 40231 (ON SCD). The Board member had heard evidence on why the particular unit was desirable to the landlord and his ownership of the other properties were therefore of limited relevance. . Mason v. Azubalis
In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".
The court considered the good faith 'personal possession' termination [RTA s.48] provisions, and that the 'good faith' must be that of the landlord themselves (and not that of the proposed occupant):[26] On the first ground of the appeal, I find that the Board confused the test as to whether the good faith intention needed to be that of the Landlord or the Landlord's son, and therefore committed an error of law. The appeal is permitted on this ground.
[27] At the start of the decision the Board identified the Landlord as Anna Azubalis. However, thereafter, they seem to indiscriminately interchange the Landlord and the Landlord's son. In the context of the decision, it cannot be submitted that it was simply a typographical error.
[28] The heading used by the Board after paragraph 6 provides "Does the Landlord's child genuinely intend to move into the rental unit?". In their analysis under this heading, the Board states as follows:16. ... Rather the issue on an application like this is whether or not the Landlord genuinely intends to move in.
17. I accept the Landlord's evidence that living in close proximity with so many different individuals has the potential to cause conflict. I accept that the Landlord's require the rental unit for additional space and therefore also find that they have a genuine intention to move in. [29] In this context, when using the word "Landlord" the Board was really referring to the Landlord's son.
[30] At paragraph 27 of the decision, the Board concludes "I find that it is more likely than not that the application was brought because the Landlord genuinely intends to move in. Although the timing of the events are close in proximity, the Landlord complied with the investigation and corrected the deficiencies." Again, it is the Landlord's son that will be moving in, not the Landlord.
[31] It is unclear from reading the decision whether the Board's analysis on good faith was with respect to the Landlord, the Landlord's son, or both. There may very well have been sufficient evidence before the Board to conclude that the Landlord in good faith required possession of the rental unit for occupation by her son, but the Board's error in law cannot be saved in this case.
[32] It is only in the review decision that the Board turns its mind to whether the Landlord's son was the de facto Landlord.
[33] At paragraph 15 of the review decision, the Board states that "[b]oth the Landlord and her son would fall under the Act's definition of Landlord for the rental unit given that the Landlord's son has acted as agent for the Landlord over the course of the tenancy." The Landlord's son could act as an agent for the Landlord. But this was not dealt with by the Board in their initial decision. The notice was signed by Anna Azubalis and not her son. The Board identified her as the Landlord, and did not address whether the son was or could be considered a Landlord. The decision of the Board seems to interchange the son and his mother as the Landlord, without providing any reason for same or clarifying whether their finding of intent was for the son, his mother, or the son as the Landlord.
[34] This confusion flows through in the Board's decision with respect to s. 83(3), discussed below.
[35] I find that the Board erred in law by determining that the good faith intent of the Landlord's son to move into the unit satisfied the test under s. 48(1) and not that of the Landlord. The decision of the Board in the review decision does not adequately address this error in law. . Mason v. Azubalis [good faith evidence]
In Mason v. Azubalis (Ont Div Ct, 2025) the Ontario Divisional Court allowed a tenant's RTA s.210 appeal, here where "the LTB allowed the Landlord's eviction application and terminated the tenancy, on the basis that the Landlord required possession of the unit for the purpose of her son's residential occupation".
The court considered the good faith 'personal possession' termination [RTA s.48] provisions, here whether direct evidence from the LL was required on the issue of good faith:Section 48(1)
[19] Section 48(1) of the RTA provides that a landlord may terminate a tenancy, if a 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 of the landlord.
[20] The Tenant submits that the Board erred in law because:(a) in determining s.48(1), they considered whether the Landlord's son genuinely intended to move into the rental unit, and not whether the Landlord had a good faith intention. The Tenant submits that whether the son wished to move into the unit does not answer the question of whether the Landlord gave notice in good faith.
(b) there was no evidence from the Landlord on which the Board could draw its conclusion, and it was therefore an error of law. The Landlord's son and her niece provided testimony. The Landlord did not attend at the LTB hearing. [21] Starting with the latter issue, the Landlord's son and her niece provided testimony. The Landlord did not attend the hearing. Whether the Landlord herself gave testimony is not determinative of the issue. Further, the Landlord's son's evidence was required to be before the LTB.
[22] The requirement under s.48(1) is whether the Landlord had a good faith intention for her son to reside in the property. The motive in seeking possession is largely irrelevant, however, the Board can consider the conduct and the motives of the Landlord in order to draw inferences as to whether the Landlord desires, in good faith, possession of the rental unit for her son to reside in the property: see Fava v. Harrison, 2014 ONSC 3352, at para. 17.
[23] Section 72(1) of the RTA provides that the Board shall not order eviction unless the landlord has filed an affidavit, sworn by the person who personally requires the rental unit, certifying that the person in good faith requires the rental unit for their personal use.
[24] There is no question that it was important for the Board to determine whether the Landlord's son genuinely intended to move into the unit. The Landlord's good faith would be meaningless if the son did not intend to move into the unit. It is for this reason that the affidavit or evidence from the Landlord's son was mandatory.
[25] In support of the position that there was no evidence upon which the Board could have reached its conclusion that the landlord in good faith required possession of the unit for her son, the Tenant relies solely on the failure of the Landlord to testify. However, a landlord does not necessarily have to testify to succeed under s. 48. There is no reason why, in appropriate circumstances, a landlord’s intention could not be inferred from the evidence of other witnesses. I therefore reject this ground of appeal. . Reid v. Shewen
In Reid v. Shewen (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 landord's appeal, this from "the Review Decision of the Landlord and Tenant Board (“LTB”), ... that declined to grant a review", here where the decision "found that that Appellant gave the Respondent/tenant a N12 [SS: 'Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit'] notice, that she required the unit for her own use, in bad faith and ordered the Appellant to pay the Respondent $35,000, which included $24,000 in general compensation".
The tenant vacated the unit on the strength of the Notice of Termination, and - on learning that it was issued in bad faith - applied successfully to the LTB [under RTA 57(3)] for bad faith remedies:[12] The Appellant was ordered to pay $35,000 in compensation to the Respondent broken down as follows:. $5,832.00 for increased rent the Tenant has incurred for the one-year period from April 2022 to April 2023.
. $1,000.00 for the reasonable moving, storage, and other like expenses that the Tenant has incurred as a result of having to move out of the rental unit.
. $24,000.00 in general compensation
. $4,186.00 for cost of additional time and travel to and from work
. $53.00 for the cost of filing the application.
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