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RTA - Conversion to Use Other than Residential Premises. Halkiw v. Lavin [good faith]
In Halkiw v. Lavin (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a landlord's RTA s.210 appeal, here brought against the dismissal of an "N13 application, seeking the eviction of the respondent and the conversion of the unit to commercial use".
Here the court considered an argument as to whether a rental unit termination to "convert it to use for a purpose other than residential premises" was made in 'good faith':Good faith by the landlord
[30] The appellant submits that the evidence before the LTB demonstrated that he had consistently intended to lease the unit for commercial purposes, including a permissible live/work occupancy under the applicable zoning bylaws.
[31] The respondent early on decided to use the space for residence alone. Regardless of the appellant’s sense of frustration about this fact, the respondent was ultimately successful in his bid to have the RTA apply to the tenancy in 2024 ONLTB 21142. The same day as that decision came down, the appellant served his N13 Notice to evict the tenant, on the basis that “the [appellant] is entitled to structure lease arrangements consistent with the lawful uses permitted under the applicable zoning by-laws.” On the appellant’s argument, bad faith cannot be found in the attempt to vindicate his right. The appellant argues that the member’s finding could only be based on the timing of the N13 Notice and an irrational inference, which constitutes legal error: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52, at paras. 24-25.
[32] Section 73(1)(a) of the RTA prohibits the LTB from granting an application for eviction unless the LTB is satisfied that the landlord intends in good faith to carry out the activity in the Notice. Section 202 of the RTA requires the LTB to “ascertain the real substance of all transactions and activities relating to a residential …rental unit and the good faith of the participants and in doing so may disregard the outward form of a transaction…and may have regard to the pattern of activities relating to the … rental unit.”
[33] The member recited these provisions in her order at paras. 22-23, in holding that the N13 Notice was made because, “the [appellant wished to reverse the results of the March 26, 2024 order as he did not want the unit to be deemed a residential unit” (para. 28). The requirement for good faith requires that a landlord prove that the conversion will actually take place, and for the right reason: Simmons v. Burglund, 2024 NSSC 400, at para. 44; Fava v. Harrison, 2014 ONSC 3352 (Div. Ct.), at para. 17. Thus, in Boomer, at paras. 35-41, the landlord had proved its good faith by showing its intention to close a mobile home park and lease the space to a specific business for commercial use.
[34] In the circumstances of this case, the appellant’s announced purpose was just to undo the determination that had been made by the LTB in 2024 ONLTB 21142 which necessarily, as the member noted at para. 22, also involved evicting the tenant. No permits or plans demonstrated that there was a commercial tenant in the wings waiting to lease the unit. The member could properly hold that the appellant’s decision to evict a tenant who that very day had achieved the protections offered by the RTA was not made in good faith, especially given the timing of the application. The appellant’s clear effort here to undo the respondent’s success stands as a bar to eviction under the legislation: RTA, s. 83(3)(c); Loc Le v. O’Grady, 2018 ONSC 6387 (Div. Ct.), at paras. 17-20.
[35] No appeal lies from the member’s factual finding that the N13 Notice was not given in good faith, which was properly arrived at. This ground of appeal fails. . Halkiw v. Lavin
In Halkiw v. Lavin (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a landlord's RTA s.210 appeal, here brought against the dismissal of an N13 ['Demolish the Rental Unit, Repair it or Convert it to Another Use'] "application, seeking the eviction of the respondent and the conversion of the unit to commercial use".
Here the court considers the RTA s.73(1)(b) ['Demolition, conversion, repairs'] termination and eviction requirements that "the landlord has, ... (i) obtained all necessary permits or other authority that may be required to carry out the activity". As well, the court holds that some circumstances may require that the LL be required to affirmatively show that no permits are required [see esp paras 23] - although the outcome of this issue was not relied upon by the court to resolve the appeal:The need for permits
[19] The appellant submits that the LTB erred by requiring the appellant landlord to obtain a building permit or statement of exemption as a precondition to the respondent’s eviction, where no permit was legally required to convert the unit for commercial use. On the appellant’s argument, no such requirement exists under s. 73(1)(b) of the RTA, which was misapplied by the LTB.
[20] For the purpose of this argument, it is useful to consider sections 50 and 73 of the RTA, both of which were referred to in the member’s order:50. (1) A landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to,
(a) demolish it;
(b) convert it to use for a purpose other than residential premises; or
(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.
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73. (1) The Board shall not make an order terminating a tenancy and evicting the tenant in an application under section 69 based on a notice of termination under section 50 unless it is satisfied that,
(a) the landlord intends in good faith to carry out the activity on which the notice of termination was based; and
(b) the landlord has,
(i) obtained all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, or
(ii) has taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, if it is not possible to obtain the permits or other authority until the rental unit is vacant. [21] The appellant argues that the unit was already zoned for commercial use by the municipality and assessed for commercial use by the CRA, so, in fact, no permits or other authority were necessary or required to convert the unit for commercial use. In those circumstances, the appellant submits that he needed to take no steps and needed to produce to the LTB no permits or authority to succeed under s. 73(1).
[22] In support of this proposition, the appellant relies on rulings by the Divisional Court in Chan v. Tralen Investments Ltd, 2023 ONSC 4345 (Div. Ct.) and Boomer v. Arvane Farms Ltd., 2025 ONSC 1772 (Div. Ct.). In those cases, this court upheld decisions by the LTB permitting conversion in the absence of permits. In Chan, the landlord had adduced evidence that no additional permit was required, and that a minor variance to install a wheelchair ramp was not necessary. In Boomer, the land in a mobile home park had already been zoned commercial, and the landlord intended to develop the land commercially. The court agreed with the LTB that nothing further was required. As noted by the Chan court, at para. 14, circumstances in which an administrative decision-maker’s assessment of evidence gives rise to an error of law are limited.
[23] However, those cases are fact-specific, and are different from the circumstances of this case, where the unit, though available for a “live/work” arrangement, had been used only as a residence for more than a decade. In such circumstances, the member might well want evidence that no further building permit or necessary alteration was required to re-establish a commercial character. The permissive “may” in s. 73(1)(b)(i) clearly grants the member a discretion to require the landlord to show that no further permit was required, depending on the circumstances at issue: see, e.g., Noffke v. Deol, 2024 ONSC 5387 (Div. Ct.), at para. 22. . Boomer v. Arvane Farms Ltd. [good faith]
In Boomer v. Arvane Farms Ltd. (Ont Divisional Ct, 2025) the Divisional Court dismissed an RTA s.210 appeal by ten mobile home park tenants from eviction orders, here where the LL sought "to close the park and convert the land to non-residential use".
The LL used the s.50(1)(b) termination ground to "convert it to use for a purpose other than residential premises" provision, which has good faith and "all reasonable steps to obtain all necessary permits or other authority" requirements on application [under RTA 73(1)]:[7] Section 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".
[8] The 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.
[9] Out 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.
[10] A 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.
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There was no error in finding good faith under s. 73(1)(a)
[35] Section 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.
[36] The 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.
[37] The 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.
[38] As 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.
[39] At 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.
[40] It was open to the Member to conclude that the Landlord had always intended to close the park, and still intends to close the park.
[41] I find that the correct legal tests were applied and there was no error in law.
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