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RTA - Personal and Purchaser Possession (4). Bousselmi v. Keyes
In Bousselmi v. Keyes (Ont CA, 2026) the Ontario Court of Appeal dismissed an RTA s.210 landlord's appeal, here from the LTB's dismissal of an application to terminate a tenancy for 'personal possession' [RTA s.48], here where "the LTB found that the Landlord had not acted in good faith".
In this case the court usefully canvasses relevant case law on the key 'good faith' issue:Analysis:
[14] Section 48(1) provides: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,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. [15] To determine an application under s. 48(1), the relevant question is whether, on a balance of probabilities, the Landlord genuinely intends to occupy or have his family member occupy the unit as a residence.
[16] The Landlord submits the LTB erred in law by considering the availability of other units as a factor in determining the good faith intention to occupy the rental unit. The Landlord relies on Salter v. Beljinac (2001), 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th) 744, (Ont. Div. Ct.), which provides:[26] While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal properly stops short of entering into an analysis of the landlord's various options: Ontario Rental Housing Tribunal Interpretation Guidelines (Eviction for Personal Use), at p. 3.
[27] Once a landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s. 51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s. 51(1) standard. [17] The Landlord also relies on Caputo v. Newberg, 2009 CanLII 32908 (ON SCDC), 251 O.A.C. 281 (Div. Ct.), at para. 10:[10] Finally, the appellant submits that the Board erred in law in considering that the appellant could live in one of the other units. While we would agree that pursuant to Salter v. Beljinac (2001) 2001 CanLII 40231 (ON SCDC), 201 D.L.R. (4th) 744, para. 26 (Div. Ct.), this factor could not be considered in the determination of whether the application was made in good faith, the legislation does not preclude this as a consideration in considering whether to exercise discretion under s.83(1). [18] The LTB decision properly identifies the legal test, as set out in Salter, as well as the law that “good faith” refers to the genuine intention to occupy the rental unit, and not the reasonableness of the landlord’s request: Feeney v. Noble, 1994 CanLII 10538 (ON CTGD), 19 O.R. (3d) 762 (Div. Ct.).
[19] The LTB also correctly recognized that they may draw inferences about the Landlord’s good faith from the Landlord’s conduct and motives. In Fava v. Harrison, 2014 ONSC 3352 (Div. Ct.) starting at paragraph 17, this Court explained:We accept, as reflected in Salter, supra, that the motives of the landlord in seeking possession of the property are largely irrelevant and that the only issue is whether the landlord has a genuine intent to reside in the property. However, that does not mean that the Board cannot consider the conduct and the motives of the landlord in order to draw inferences as to whether the landlord desires, in good faith, to occupy the property.
....
In our view, Board Member Van Delft's conclusion restricts the meaning of the term "good faith" to an unreasonable degree. By excluding any consideration of the landlord's motives in deciding whether the landlord has acted in good faith, she has unduly restricted the consideration the Board must give to that term. We see nothing in Salter or Feeney, supra, to the contrary. [20] In Boomer v. Arvane Farms Ltd, 2025 ONSC 1772, at para. 37, this Court clarified that Fava remains good law, finding that the Board applied the correct test by looking at the motives and intentions of the landlord to establish good faith, where the evidence before the Board showed that the landlord did not really intend to convert the tenants' property to non-residential use.
[21] The LTB found that the Landlord did not act in good faith. At paragraph 55 of the decision the LTB concludes as follows: “In this case, having considered the totality of the evidence, I am not persuaded, on a balance of probabilities of MH, HH and SB’s good faith intention to reside in the unit.”, and again at paragraph 62, conclude that:
In this context, I have considered the totality of oral and documentary evidence, and I am not persuaded, on a balance of probabilities, that MH, HH and SB genuinely intend to occupy the rental unit.
[22] The LTB found that these family members intended to assist the Landlord in whatever he requires them to do and did not have a genuine intention to move into the unit.
[23] At paras. 56-57, the LTB begins to tackle the Landlord’s evidence and find that “the Landlord’s evidence lacks the ring of truth” and that he “was not a credible witness”. The LTB found that “[t]he Landlord’s testimony and credibility were very seriously undermined by cross-examination”: at para. 18. He did not explain why he served an eviction notice in August if he only decided in September that he wanted the unit. He failed to mention that he also served an eviction notice on the only other long-term tenant. He was “evasive, aggressive and argumentative” when answering questions: see para. 21. The relevant sections of the decision, for the purpose of the appeal, are set out in paragraphs 56-62.
[24] The Landlord had the onus to prove that he acted in good faith. The LTB found that he did not.
[25] The issue of the availability of other units went to the Landlord’s motives. It was also used as an example of why the Landlord was found not to be a credible or reliable witness. The LTB also concludes that “I am unable to find that the Landlord simply wants his family to live close to him and to have more space available to them”.
[26] Even if the LTB made an error in this regard, the issue of the availability of other units was not the sole or primary reason for finding the Landlord did not act in good faith and would not have changed the outcome.
[27] Having applied the correct legal test, the finding that the Landlord did not act in good faith was a finding of mixed fact and law, and not subject to appeal under s. 210. . Miller Estate v. Arguelles [personal possession, including s.71.1 analysis]
In Miller Estate v. Arguelles (Ont CA, 2026) the Ontario Court of Appeal allowed an RTA appeal, this respecting s.48 ['Notice, landlord personally, etc., requires unit' (personal possession)] and s.71.1 ['Application based on certain notice' (supporting affidavit)] issues.
Here the court extensively considers these 'personal possession' issues:[2] Section 48 of the RTA permits what are termed “landlord’s own use” evictions: a landlord is able to terminate a tenancy where the landlord in good faith requires possession of the rental unit for residential occupation during a period of at least one year by one or more specified persons, including the landlord, the landlord’s spouse, and the landlord’s children. Pursuant to s. 71.1 of the RTA, a landlord seeking a landlord’s own use eviction must deliver an N12 Notice to End Your Tenancy (“N12 notice”) and include in the eviction application details of previous N12 notices served by the landlord on any tenant within two years of the commencement of the eviction application.
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d. First issue: interpretation of s. 48 of the RTA
[26] The relevant provisions regarding landlord’s own use are contained in ss. 48(1) and (5) of the RTA, as follows: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,
(a) the landlord;
(b) the landlord’s spouse;
(c) a child or parent of the landlord or the landlord’s spouse; or
(d) a person who provides or will provide care services to the landlord, the landlord’s spouse, or a child or parent of the landlord or the landlord’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.
....
(5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,
(a) the rental unit is owned in whole or in part by an individual; and
(b) the landlord is an individual. [27] The plain and literal meaning of these provisions is clear. A landlord may only terminate a tenancy for the rental unit’s occupation by the individuals specified in s. 48(1) of the RTA: the landlord; the landlord’s spouse; a child or parent of the landlord or the landlord’s spouse; or a caregiver of the landlord, the landlord’s spouse, or of a child or parent of the landlord or the landlord’s spouse.
[28] That means that s. 48(1) cannot be invoked for the occupation of the rental unit by any individual who does not fall within one of those listed categories. The aunt, uncle, cousin, brother, or sister of the landlord or the landlord’s spouse do not qualify, for example.
[29] The respondent relies on the broad definition of “landlord” under s. 2 of the RTA to argue that Ms. Miller’s Estate and her heirs can be landlords. The definition of “landlord” under s. 2 of the RTA is not restricted to individuals, and includes:(a) the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit,
(b) the heirs, assigns, personal representatives and successors in title of a person referred to in clause (a), and
(c) a person, other than a tenant occupying a rental unit in a residential complex, who is entitled to possession of the residential complex and who attempts to enforce any of the rights of a landlord under a tenancy agreement or this Act, including the right to collect rent; “person”, or any expression referring to a person, means an individual, sole proprietorship, partnership, limited partnership, trust or body corporate, or an individual in his or her capacity as a trustee, executor, administrator or other legal representative. [30] The difficulty with the respondent’s position is that it fails to recognize the fact that it is not all landlords who may invoke s. 48(1) to terminate a tenancy for landlord’s own use, but only landlords who meet the statutory criteria under ss. 48(1) and (5). In contrast to other sections of the RTA which use a broad definition of landlord, the statutory criteria under ss. 48(1) and (5) narrowly define a landlord as an individual: Hefzi v. Louw, 2023 BCSC 994, at para. 23;[3] Schuld v. Li, 2025 BCSC 681, at paras. 28-31. While an estate may be a landlord for other purposes under the RTA, such as to collect rent or effect repairs, an estate does not meet the statutory criteria set out for landlord’s own use under ss. 48(1) and (5) of the RTA because it is not an individual, nor can it have a spouse, child or parent.
[31] I acknowledge that the Board is required to “ascertain the real substance of all transactions and activities”, and in doing so can “disregard the outward form of a transaction or the separate corporate existence of participants”: RTA, s. 202(1)(a). In Slapsys (c.o.b. 1406393 Ontario Inc.) v. Abrams, 2010 ONCA 676, 268 O.A.C. 395, for example, this court held that s. 202(1)(a) permitted the Board to pierce the corporate veil to terminate a tenancy for the personal use of the sole shareholder of the corporate owner of rental premises in that case.
[32] However, the Board’s power under s. 202(1)(a) has no application in the present case. A finding that the estate does not meet the requirement in s. 48 that a landlord must be an individual is not merely a matter of form, nor does it obfuscate the “real substance” of the transaction. In Slapsys, the sole shareholder of a corporation that owned the residential unit was an identifiable individual who had performed the duties and responsibilities of a landlord for many years. The shareholder, though technically a separate legal entity from the corporation that owned the unit, was clearly a landlord for the purposes of s. 48(1) in substance. In the present case, the estate has no identified personal representative or trustee. As a result, there is no individual that can be deemed a landlord to permit occupancy for that landlord’s own use. I will return below to the other impediments to landlord’s own use through an estate.
[33] The plain language of s. 48(1) also requires that the prescribed criteria permitting the termination of a tenancy must still be in place at the time of termination. It is an error for the Board to consider the relevant circumstances only at the time of the delivery of the N12 notice: Elkins, at para. 71.
[34] A tenancy is not terminated until the requisite notice period has expired or until terminated by order. As a result, the landlord must meet the statutory criteria on the termination date on the N12 notice, if the notice is valid and not contested by the tenant. If it is contested, the criteria must be met on the date when the tenancy is terminated by order of the Board or by the court after all appeals have been exhausted: see, for example, Elkins, at para. 71-72; Hefzi, at paras. 22-28; Schuld v. Li, at paras. 28-31.
[35] To hold otherwise would defeat the protective legislative purpose informing these provisions. In keeping with its remedial nature and tenant protection focus, the RTA circumscribes the termination of tenancies, focusing on the security of tenure for tenants and preventing unlawful evictions: White, at para. 10; Elkins, at para. 42; Ricketts, at paras. 97-99, per Nakatsuru J., dissenting, but not on these points. Section 48 represents a clear exception to the regime that protects against no fault evictions: Slapsys, at para. 12. Reading this section in the context of the RTA as a whole, the specific purpose of the exceptional provisions in this section should be read as to limit the circumstances in which a landlord may give a notice to end a tenancy: Schuld v. Niu, 2019 BCSC 949, at para. 17.
[36] The potential for abuse of the landlord’s own use provisions by unscrupulous landlords is obvious. For the tenant’s protection, it is therefore crucial that the landlord seeking to terminate a tenancy under s. 48(1) meets all of the statutory criteria on the actual date of termination.
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e. Second issue: interpretation of s. 71.1 of the RTA
[46] I accept that the Board erred by amending the eviction application to include the details of the March 2022 N12 notice that had not been included in the application at the time of filing. The Board erred by treating the absence of the details of the March 2022 N12 notice as a mere procedural defect when it was a substantive deficiency that could not be cured by amendment. The Board’s decision to amend the eviction application undermined the remedial, tenant-focused purpose of the RTA that informs the objective of s. 71.1.
[47] The purpose of s. 71.1 of the RTA is, among others, to prevent abuse of the landlord’s own use provision under s. 48(1). The addition of s. 71.1 to the RTA was made through Bill 184, Protecting Tenants and Strengthening Community Housing Act, 2020, S.O. 2020, c. 16, Schedule 4. The Hansard Report for this Bill states that the intended purpose of s. 71.1 was to “help adjudicators at the [Board] to look for patterns and identify landlords who may be breaking the law.” The comments made by the Minister of Housing further explain this purpose, which accords with the overall purpose of the RTA:We’re not just suggesting they report successful evictions; we’re proposing that landlords must disclose to the Landlord and Tenant Board any attempt to evict a tenant under the own use or repair and renovation provisions in the last two years. This would help adjudicators at the Landlord and Tenant Board to look for patterns and identify landlords who may be breaking the law.
Sadly, my ministry has heard about increasing abuses of “own use” evictions, so we’re proposing that if a landlord wants to evict a tenant to use the unit themselves, they would have to tell the Landlord and Tenant Board if they have done this before or if they have tried, even unsuccessfully, to do it before, so we could help our adjudicators look for patterns and so that they could identify landlords who may be breaking the law. [Emphasis added.] [48] The Board has interpreted the intention of s. 71.1 as ensuring transparency for both tenants and the Board, so that tenants have full knowledge of the details of all previously delivered N12 notices and the Board has the evidence required to determine whether the landlord delivered the relevant termination notices in good faith: see, for example, Ben-Margi v. Yi, 2024 ONLTB 64298, at para. 15; Zuidersma v. Duke, 2022 CanLII 122598 (ON LTB), at para. 7. The Board’s caselaw indicates that s. 71.1 was added to address and counteract “the perception that sections 48, 49 and 50 [of the RTA] were being used by landlords to unlawfully evict tenants”: 2709 Lakeshore Holding Inc. v. Offei et al, 2024 ONLTB 2711, at para. 29; Murray v. Lynch, 2025 ONLTB 31412, at para. 9.
[49] In furtherance of these objectives, s. 71.1 stipulates what must be included in the landlord’s eviction application and prescribes the serious consequences for a failure to do so. It requires the landlord to file an affidavit, attesting to the landlord’s own use in accordance with s. 72(1), at the same time as the eviction application is filed. Section 72(1) prohibits the Board from making an order terminating a tenancy and evicting a tenant unless the affidavit is filed. Section 71.1(2) prohibits the acceptance of the eviction application for filing without the affidavit. Similarly, s. 71.1(3) requires the landlord to set out the details of every N12 notice given within two years prior to filing the eviction application; s. 71.1(4) requires the Board to refuse to accept the eviction application for filing if the landlord has not complied with s. 71.1(3).
[50] With the legislative purposes in mind, I turn to interpret the language of the provisions in issue. For ease of reference, I reproduce ss. 71.1(3) and (4):Previous use of notices under s. 48, 49 or 50
(3) A landlord who, on or after the day subsection 11 (2) of Schedule 4 to the Protecting Tenants and Strengthening Community Housing Act, 2020 comes into force, files an application under section 69 based on a notice of termination given under section 48, 49 or 50 shall, in the application,
(a) 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 rental unit; and
(b) set out, with respect to each previous notice described in clause (a),
(i) the date the notice was given,
(ii) the address of the rental unit in respect of which the notice was given,
(iii) the identity of the intended occupant in respect of whom the notice was given if the notice was given under section 48 or 49, and
(iv) such other information as may be required by the Rules.
Non-compliance with subs. (3)
(4) The Board shall refuse to accept the application for filing if the landlord has not complied with subsection (3).
[Emphasis added.] [51] In my view, the use of the word “shall” requires the above provisions to be read as mandatory. In Re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, the Supreme Court of Canada held that “shall” is to be interpreted presumptively as imperative unless such an interpretation would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless: at paras. 27-33. That is not the case here. Rather, interpreting “shall” as mandatory in these provisions enhances the specific purposes of s. 71.1 and the overarching remedial objective of the RTA to protect tenants from unlawful evictions.
[52] The requirement to disclose details of past notices of termination is not only to benefit the particular tenant who is subject to the notice, but, as indicated in the above summary of the Hansard Report, also to permit the Board to monitor possible misuse of this ground of eviction. The fact that a particular tenant may already know about a notice omitted from an eviction application is not relevant to the Legislature’s objective of ensuring landlords disclose the information that the Board requires to “look for patterns” to “identify landlords who may be breaking the law”.
[53] Tenants who appear before the Board are often self-represented, vulnerable, and unaware of their legal rights. Section 71.1 cannot have its intended effect if there are no meaningful consequences for a landlord’s failure to comply. The Board’s interpretation frustrates this purpose and renders s. 71.1(3) of no effect for tenants or the Board. In most cases, there is no way for a tenant to know whether the landlord has disclosed details of all of the previously served N12 notices. There is no way for the Board to know in any case, as there is no screening mechanism at intake to detect whether such disclosure has been made, as the Board’s counsel fairly acknowledged during the appeal hearing: see, also, Elkins, at paras. 42, 47, 55, 64, 65.
[54] These provisions are mandatory. There are no provisions under the RTA or SPPA that give the Board any discretion to accept an application for filing or to make an order terminating a tenancy and evicting a tenant if these provisions are not complied with. If the Legislature had wished to provide for discretion, it would have been a simple thing to include such a provision in s. 71.1, as it did elsewhere in the RTA. For example, with respect to the Board’s power on eviction applications, s. 83(1) provides that “the Board may, despite any other provision of this Act or the tenancy agreement” refuse to grant the eviction or postpone the enforcement of the eviction order. In contrast, s. 71.1 contains no such permissive language.
[55] The legislative objective of these provisions is clear: the N12 notices inform the legitimacy of the landlord’s reliance on s. 48(1). The Board’s decision to amend the eviction application effectively treated these provisions as discretionary and procedural, rather than mandatory substantive requirements that fulfill the legislative objective of the RTA by protecting against abuse of the landlord’s own use termination provision. As the RTA stipulates, the application should not have been accepted for filing in the absence of the requisite N12 notice disclosure. As the Board noted, there is no screening process for electronic filing. As a result, this requires the Board to give effect to s. 71.1(4) at the time of the hearing, as it is the only time to do so. This substantive deficiency cannot be cured by amending the eviction application. The respondent’s eviction application should not have proceeded in the first place and should have been dismissed. The eviction application was therefore a nullity. . Nayyer v. Sorensen [part-time 'residential occupation' by LL or family]
In Nayyer v. Sorensen (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a landlord's RTA s.210 appeal, here brought against the dismissal of a 'personal possession' [RTA s.48(1) 'Notice, landlord personally, etc., requires unit'] termination.
This case addresses the situation where the landlord (or a family member) proposes to maintain more than one 'residence' for these RTA s.48(1) purposes:[2] The basis for the application was that the appellant, who lives in Oakville but works in Toronto, wished to use the rental unit during the week because he found commuting back and forth to be stressful. His plan was to stay at the unit on weekdays and live with his family in Oakville on weekends. The Member dismissed the application for the following reasons:I find that the Landlord’s desired use of the rental unit on the weekday does not constitute residential occupation under s. 48(1) of the Act. I say this because it is well settled law that temporary or part-time residency does not constitute “residential occupation” under s. 48(1).
In Kohen v. Warner, 2018 ONSC 3865, the landlord served notice of termination on the tenant for an adult son’s use. The son was a full-time university student in London, Ontario, who travelled home to Toronto every weekend. He wanted the rental unit so he had somewhere to stay on the weekends and in the summer breaks. His plan was to do that for five years. The Board dismissed the application on the basis that the intended use was not “residential occupation” within the meaning of s. 48 because it was occasional use only. The Divisional Court dismissed the landlord’s appeal on the basis that the Board’s interpretation was reasonable given the purpose of the Act.
Applying the law in Kohen I find that the Landlord in this case has not demonstrated a genuine intention to occupy the rental unit for at least one year for residential purposes because he intends to live in the rental unit only on a part-time basis. The Landlord’s application must therefore be dismissed. [3] The appellant submits that the Member erred in relying on this court’s decision in Kohen v. Warner, 2018 ONSC 3865 (Div. Ct.) because the Landlord’s plan in this case is “substantially more consistent and frequent” than the planned use in Kohen. He submits that the facts in Kohen show that the proposed use was for only 28% of the year while in this case it is for 72%, and as a result Kohen does not apply. In support of this submission, he relies on the Board decision in Boland v. Tarrant, 2024 ONLTB 55330, at para. 56, where the Board Member stated “… I am not convinced that living more than six months of the year in the rental unit is an infrequent or occasional use.”
[4] In my view, the Board did not err by relying on Kohen. The court in that case relied on MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which applied principles from two earlier cases, Wiazek v. Armstrong, [1994] O.J. No. 2737 (Gen. Div.), at paras. 61-62, and McDonald v. Smith, [1993] O.J. No. 1680 (Gen. Div.), at paras. 2-4. It is clear from all of these cases that the Member was correct in concluding that “temporary or part-time residency does not constitute ‘residential occupation’ under s. 48(1).” This interpretation is consistent with the remedial purpose of the Act and has consistently been applied in decisions of the Board: Kohen, at para. 12; Bale v. Budgell, 2025 ONLTB 85094, at paras. 28-29; Poupart v. Sakr, 2024 ONLTB 26760, at paras. 15-17; Cannon v. Moniz, 2025 ONLTB 67744, at para. 26; Sherar v. Lenchyshyn, 2024 ONLTB 640009, at para. 10; Sutherland-Cote v. Nicholas, 2024 ONLTB 12308, at para. 14.
[5] Counsel for the appellant conceded in oral argument that he was unable to find a single Board decision in which a s. 48(1) eviction was based on part-time residency. This includes Boland v. Tarrant, on which the appellant relied, where the Landlord’s application was dismissed notwithstanding that the Board was “not convinced” that living in a rental unit for more than six months of the year was “infrequent or occasional” use.
[6] In any event, s. 210(1) of the Act provides that appeals from orders of the Board are “only on a question of law.” Even if part-time occupancy can constitute “residential occupation” for the purpose of s. 48(1) of the Act, whether it did so in this case is a question of mixed fact and law from which no appeal lies: Kohen, at para. 12.
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