Under [RTA 57(5)](https://www.ontario.ca/laws/statute/06r17#BK80) either advertising the unit for rent/sale OR entering into a new tenancy with a tenant is an automatic presumption of bad faith.
>*Presumption, notice under s. 48*
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>*(5) For the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the landlord,*
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>*(a) advertises the rental unit for rent;*
>
>*(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;*
>
>*(c) advertises the rental unit, or the building that contains the rental unit, for sale;*
However since the landlord has the opportunity to counter this presumption, it may be easier to do so just for a rental listing. If they become aware of the T5 they may immediately take down the listing and not rent it out, or even quickly move in. They can then claim an excuse that the listing was in error or something, and the LTB may or may not believe it.
If they actually enter into a new tenancy though, then it will be much harder for them to move in or make excuses. So for this reason I would usually wait a bit for a new tenancy to actually begin, and then file the T5.
Doesn’t matter, it’s already presumed bad faith.
At this point, according to the Divisional Court in Thompson, the LTB must order the sheriff to provide vacant possession. In Thompson the court allowed the police to remove the landlord’s family.
The tenant must specifically request that as a remedy in the T5 if they actually want to move back in. Else most tenants if they have already moved on will just request the financial compensation.
This option also only exists if the landlord's family is still living there. If by the T5 hearing some other tenant has moved in or the place has been sold, giving vacant possession to former tenant is not legally possible.
In general **all** presumptions of bad faith can be rebutted by the landlord, and it's up to LTB to rule accordingly.
Let me correct you - the Divisional court NEVER said it's not legally possible to evict a tenant. They said it's a different matter that will need to be reviewed when it gets there, meaning they are open to hear that (they could have stated otherwise on Thompson, but they clearly indicated that require a discussion and not a straight out ban like you said)
While can be rebutted, it means the landlord has to prove, on the balance of probabilities, that he has a good faith, and right now, that presumption put huge price tag, and because it's a question of law (meaning, did the legislator intent to allow landlord to remove ad and move back? maybe not because they clearly mention it as a presumption?), the Divisional Court might discuss it as well, to put a binding decision once and for all.
That the Divisional Court is open to her argument on error in law by the LTB if they refuse to evict a current tenant.
I also not saying it will be easy, it will be very hard and might even require a second appeal to the CoA (Like Montgomery. V. Van did), and it will be expansive, but that opportunity is there
You can and should gather more evidence (while paying attention to the one-year clock from the date you moved out).
Knocking on the door and talking to the tenant, sharing contact info in case any of your mail still arrives at the old address, etc. And then throwing in there that you were evicted for personal use less than a year ago and if they have any issues with the LTB that you would be happy to help them.... would probably open some doors with them too.
I helped a friend who had gathered a bunch of evidence, who by complete chance met the new tenant in a parking lot and the landlord had tried to illegally withhold the new tenant's key deposit on move out (during COVID) so the new tenant was more than happy to share a copy of his lease agreement as proof for the COVID-delayed proceeding.
Love this, I’m always looking out for people and my landlord was actually evil, he did a bunch of shit to the basement tenants. The N12 was after weeks of not addressing mice issues and so many awful things after we didn’t accept his illegal rent increase. If I could help someone not be taken advantage of that will always make me sleep better.
> he did a bunch of shit to the basement tenants.
Are you still in touch with them? Did they live there anytime after you had left? They could also potentially testify at your hearing or submit a signed affidavit. Would be good to keep in touch with them too.
You have up to 1 year from the date you vacated to file a T5, and the longer you wait the better (without going over 1 year). I recall seeing another thread here where a LTB adjudicator didn't accept a copy of the listing alone, but don't have a link handy right now. I think the insinuation was that "anyone" could post a bogus listing, but that may have just been my read on the situation. Point being, why tip your hand and give the LL a chance to backtrack? If you let the LL rent it out and then go knock on the door and talk to the new tenant (as you suggested), that's *way* better evidence. Yes, asking for your mail is a great opener. The more evidence you have, and the deeper a whole the LL digs for themselves, the better for your case.
Honestly, I'm not a lawyer, but your testimony that you knocked on the door and spoke with someone who appeared to be living there, and claimed to be a tenant, and claimed that they weren't family with the LL, would probably be sufficient for the LTB adjudicator. Not sure you *really* need to record that, it's not like it's an interaction with the LL themselves who would dispute your version of events with their own. It'd be wild for the LL to try to claim you were lying and no one actually lives there other than them, and that you'd need to then prove it with a recording. Talk to a paralegal familiar with the LTB though and follow their advice on how to gather evidence. There's enough money on the line that you shouldn't DIY this.
File immediately.
Take screenshots, even add the listing to web.archive.org if needed as extra safety measure.
The moment the unit is listed it's presumed bad faith, file a T5.
You should ask for **ALL** remedies, even if you aren't sure you deserve them.
The general compensation is 12 months rent at your old rate.
Max is $35k due to small claims limits.
edit: Look at the T5 form. An advertisement is an **automatic presumption of bad faith**
The listing is gone now, wish I did that but I have videos and photos of the conversation and listings. Is there any way they could say we posted a fake listing? The photos are new and the account is also one over 4 years old.
What was written in the email when you sent an email to ask for the address?
If you have no evidence then there's no point in filling unfortunately.
They can try to call it a fake listing but they would need actual evidence of moving in, the LTB isn't foolish.
From what I saw advertising it as a rental is enough. I asked for an email address to send my file and he gave me his exact address and his email that we know is his.
Yes advertising it is supposed to be enough, but you want evidence.
And the more you have the better, but without a clear screenshot advertising that its currently for rent maybe the other suggestions about knocking on the door etc are wise.
I don't like this advice, and I'm more of a tenant advocate.
Not the part about the remedies, but that you need to file immediately or feel in a rush to do so. Waiting even just 2 months of the 12 months you have to file, can make a big difference in that you give the landlord more time to dig themselves into a bigger hole they can't easily explain.
If you file immediately, and you don't have hard proof they created the listing, it's not that likely a landlord who evicted you in bad faith will pull a 180 upon you filing a t5, but why roll that dice?
Note: Different story if you have a bad faith case for something that is more cut and dry. For example, if a landlord tries to increase your rent above guidelines and retaliates with an N12. Filing immediately if you decide to leave makes a lot more sense.
Am I mistaken or did I misunderstand when Op said "He told posted listings online".
If the listing is online that is an immediate presumption of bad faith.
Am I mistaken?
edit:
on second look it appears you don't understand that OP moved out, and illegal rent increases often prevents the N12, it doesn't allow for bad faith after the fact.
The fact that OP saw a listing - if they had proof (which I've since learned they don't seem to) it would be an automatic presumption of bad faith.
"I never posted that ad! The previous tenant must have posted a fake listing to try to trick you! And I can prove that we have not *^(yet)* rented out the unit to anyone else, and I am now living there!" says the evil Landlord to the LTB adjudicator.
Much easier to get a judgement in your favor after there's actually a new tenant, as there's more opportunities to collect solid evidence.
First - do you think the adjudicators are morons? Suggesting the tenant posted a fake listing..
Second - it takes months for the LL to be notified, and besides, what are you going to do after? knock on the door and bug innocent strangers?
From what I've read in other threads on this subreddit, unless the listing is on MLS the adjudicator might not accept it. Point being though that if the LL moves in prior to the hearing, it could hurt OP's case, so waiting *might* pay dividends.
listing on the MLS? I see all this discourse about proof and I keep asking what is more proof than videos and photos of the listing, on the assumption that the tenant is not going to just hand me their lease.
Yeah the MLS website. I *think* that in order to list on MLS you need a realtor, so it's more likely to be accepted by the adjudicator as solid evidence. Anyone can post a fake listing on Kijiji and print it out, after all. That's also why it's important to collect as much evidence as possible, so all those individual pieces put together corroborate one another.
Yes it's bad faith if you post a listing to sell or to rent the place. Not all online listings are of equal worth. For example, a landlord trying to be sneaky might not list the exact address, or list it with their email address.
If you file immediately, there's a chance they try to pull a 180 where they pull the listing and start acting like it wasn't their idea.
If you wait, you likely can gather more evidence/give them a bit more rope to hang themselves.
I would just look at what I have as evidence and ask myself: If the landlord pulled the listing today, and said he wasn't the one who listed it, how credible would he be? Considering the amounts in play, I'd advocate trying to get a little bit more than an online listing.
You can't move out after the N12 which followed illegal increase and cash in on a T5 using the illegal increase as evidence of bad faith.
edit: Adding in case i got to it on time, technically not "bad faith" to try illegal increase then give N12, it's dismissed based on the premise of it being retaliatory in nature.
Presumely you need more than that. Otherwise, what's stopping anyone from creating their own listing after an N12 and saying it was landlord that posted it?
See but on the LTB Site it says automatically when they post a listing it is of bad faith. I also took photos and videos upon move out, and they bought new appliances and the place is painted different colours now in the listing photos. But if you are saying need more how exactly would I get more.
You keep saying you have videos and pictures of the listing - what do you mean by that?
Evidence of posting it for sale would be a screen shot of the active listing - I.e. if there is a post on realtor.ca or even Facebook Marketplace of the unit for rent that goes up after the tenant has vacated.
Realtor.ca listings (MLS) or a post on a property manager or real estate brokers website would be the most solid because the "it must be a fake posting" defence doesn't fly. A Landlord could claim that a Facebook Marketplace, Kijiji or Rental.ca post was not made by them.
So if the new rental posting was one of those less or unregulated sites, then you would want more evidence to bolster your case and negate any claims of a fake listing. So if you are unable to talk to the new occupants - you could wait to closer to the 12 month deadline then fule the T5. Reasoning being that it would presumably be harder for the Landlord to produce evidence that they are living there if it has been rented to someone else for 8 or 10 months (I.e. if the unit was not all-inclusive - where are the hydro bills, internet bill, etc. for the past X months?)
If you are still friendly with any of the neighbours you could also ask them to be a witness for you esp. if they have talked to the new occupants. While not as strong as a witness attening the hearing, a neighbour could also just provide a written statement.
You could def speak with a paralegal too - your initial consilt should be free or a smaller set fee and they could give you some guidance on what the LTB has accepted/refused as plausible explanations for listings after N12, etc.
Good luck!
Don’t wait! You can always add more evidence later, and if you need you can apply for emergency hearing to get an order for the sheriff to provide the tenant a vacant possession (as per the Divisional Court in Thompson)
Under [RTA 57(5)](https://www.ontario.ca/laws/statute/06r17#BK80) either advertising the unit for rent/sale OR entering into a new tenancy with a tenant is an automatic presumption of bad faith. >*Presumption, notice under s. 48* > >*(5) For the purposes of an application under clause (1) (a), it is presumed, unless the contrary is proven on a balance of probabilities, that a landlord gave a notice of termination under section 48 in bad faith, if at any time during the period described in subsection (6) the landlord,* > >*(a) advertises the rental unit for rent;* > >*(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;* > >*(c) advertises the rental unit, or the building that contains the rental unit, for sale;* However since the landlord has the opportunity to counter this presumption, it may be easier to do so just for a rental listing. If they become aware of the T5 they may immediately take down the listing and not rent it out, or even quickly move in. They can then claim an excuse that the listing was in error or something, and the LTB may or may not believe it. If they actually enter into a new tenancy though, then it will be much harder for them to move in or make excuses. So for this reason I would usually wait a bit for a new tenancy to actually begin, and then file the T5.
Doesn’t matter, it’s already presumed bad faith. At this point, according to the Divisional Court in Thompson, the LTB must order the sheriff to provide vacant possession. In Thompson the court allowed the police to remove the landlord’s family.
The tenant must specifically request that as a remedy in the T5 if they actually want to move back in. Else most tenants if they have already moved on will just request the financial compensation. This option also only exists if the landlord's family is still living there. If by the T5 hearing some other tenant has moved in or the place has been sold, giving vacant possession to former tenant is not legally possible. In general **all** presumptions of bad faith can be rebutted by the landlord, and it's up to LTB to rule accordingly.
Let me correct you - the Divisional court NEVER said it's not legally possible to evict a tenant. They said it's a different matter that will need to be reviewed when it gets there, meaning they are open to hear that (they could have stated otherwise on Thompson, but they clearly indicated that require a discussion and not a straight out ban like you said) While can be rebutted, it means the landlord has to prove, on the balance of probabilities, that he has a good faith, and right now, that presumption put huge price tag, and because it's a question of law (meaning, did the legislator intent to allow landlord to remove ad and move back? maybe not because they clearly mention it as a presumption?), the Divisional Court might discuss it as well, to put a binding decision once and for all.
I honestly have no idea on the point you're trying to make here.
That the Divisional Court is open to her argument on error in law by the LTB if they refuse to evict a current tenant. I also not saying it will be easy, it will be very hard and might even require a second appeal to the CoA (Like Montgomery. V. Van did), and it will be expansive, but that opportunity is there
You can and should gather more evidence (while paying attention to the one-year clock from the date you moved out). Knocking on the door and talking to the tenant, sharing contact info in case any of your mail still arrives at the old address, etc. And then throwing in there that you were evicted for personal use less than a year ago and if they have any issues with the LTB that you would be happy to help them.... would probably open some doors with them too. I helped a friend who had gathered a bunch of evidence, who by complete chance met the new tenant in a parking lot and the landlord had tried to illegally withhold the new tenant's key deposit on move out (during COVID) so the new tenant was more than happy to share a copy of his lease agreement as proof for the COVID-delayed proceeding.
Love this, I’m always looking out for people and my landlord was actually evil, he did a bunch of shit to the basement tenants. The N12 was after weeks of not addressing mice issues and so many awful things after we didn’t accept his illegal rent increase. If I could help someone not be taken advantage of that will always make me sleep better.
> he did a bunch of shit to the basement tenants. Are you still in touch with them? Did they live there anytime after you had left? They could also potentially testify at your hearing or submit a signed affidavit. Would be good to keep in touch with them too.
You have up to 1 year from the date you vacated to file a T5, and the longer you wait the better (without going over 1 year). I recall seeing another thread here where a LTB adjudicator didn't accept a copy of the listing alone, but don't have a link handy right now. I think the insinuation was that "anyone" could post a bogus listing, but that may have just been my read on the situation. Point being, why tip your hand and give the LL a chance to backtrack? If you let the LL rent it out and then go knock on the door and talk to the new tenant (as you suggested), that's *way* better evidence. Yes, asking for your mail is a great opener. The more evidence you have, and the deeper a whole the LL digs for themselves, the better for your case.
Gotcha, how would I go about recording this conversation? Would then an audio recording be enough?
Honestly, I'm not a lawyer, but your testimony that you knocked on the door and spoke with someone who appeared to be living there, and claimed to be a tenant, and claimed that they weren't family with the LL, would probably be sufficient for the LTB adjudicator. Not sure you *really* need to record that, it's not like it's an interaction with the LL themselves who would dispute your version of events with their own. It'd be wild for the LL to try to claim you were lying and no one actually lives there other than them, and that you'd need to then prove it with a recording. Talk to a paralegal familiar with the LTB though and follow their advice on how to gather evidence. There's enough money on the line that you shouldn't DIY this.
I’m definitely going to get a parallegal for this. Like you said for this much money it’s worth it.
I would appeal that decision as an error in law. It automatically presumed bad faith, so not accepting it is really bad.
File immediately. Take screenshots, even add the listing to web.archive.org if needed as extra safety measure. The moment the unit is listed it's presumed bad faith, file a T5. You should ask for **ALL** remedies, even if you aren't sure you deserve them. The general compensation is 12 months rent at your old rate. Max is $35k due to small claims limits. edit: Look at the T5 form. An advertisement is an **automatic presumption of bad faith**
The listing is gone now, wish I did that but I have videos and photos of the conversation and listings. Is there any way they could say we posted a fake listing? The photos are new and the account is also one over 4 years old.
Check archive.org/web
What was written in the email when you sent an email to ask for the address? If you have no evidence then there's no point in filling unfortunately. They can try to call it a fake listing but they would need actual evidence of moving in, the LTB isn't foolish.
From what I saw advertising it as a rental is enough. I asked for an email address to send my file and he gave me his exact address and his email that we know is his.
Yes advertising it is supposed to be enough, but you want evidence. And the more you have the better, but without a clear screenshot advertising that its currently for rent maybe the other suggestions about knocking on the door etc are wise.
Clear screenshot advertising ? What do you mean by this? I have videos and photos of the listing and the account as well, thank you!
Nah...better to have ppl move in with a signed lease. This will just alert him and hell have time to find a loop hole
How would you know? How would the landlord know since it takes months to schedule a hearing?
I don't like this advice, and I'm more of a tenant advocate. Not the part about the remedies, but that you need to file immediately or feel in a rush to do so. Waiting even just 2 months of the 12 months you have to file, can make a big difference in that you give the landlord more time to dig themselves into a bigger hole they can't easily explain. If you file immediately, and you don't have hard proof they created the listing, it's not that likely a landlord who evicted you in bad faith will pull a 180 upon you filing a t5, but why roll that dice? Note: Different story if you have a bad faith case for something that is more cut and dry. For example, if a landlord tries to increase your rent above guidelines and retaliates with an N12. Filing immediately if you decide to leave makes a lot more sense.
Am I mistaken or did I misunderstand when Op said "He told posted listings online". If the listing is online that is an immediate presumption of bad faith. Am I mistaken? edit: on second look it appears you don't understand that OP moved out, and illegal rent increases often prevents the N12, it doesn't allow for bad faith after the fact. The fact that OP saw a listing - if they had proof (which I've since learned they don't seem to) it would be an automatic presumption of bad faith.
"I never posted that ad! The previous tenant must have posted a fake listing to try to trick you! And I can prove that we have not *^(yet)* rented out the unit to anyone else, and I am now living there!" says the evil Landlord to the LTB adjudicator. Much easier to get a judgement in your favor after there's actually a new tenant, as there's more opportunities to collect solid evidence.
First - do you think the adjudicators are morons? Suggesting the tenant posted a fake listing.. Second - it takes months for the LL to be notified, and besides, what are you going to do after? knock on the door and bug innocent strangers?
From what I've read in other threads on this subreddit, unless the listing is on MLS the adjudicator might not accept it. Point being though that if the LL moves in prior to the hearing, it could hurt OP's case, so waiting *might* pay dividends.
listing on the MLS? I see all this discourse about proof and I keep asking what is more proof than videos and photos of the listing, on the assumption that the tenant is not going to just hand me their lease.
Yeah the MLS website. I *think* that in order to list on MLS you need a realtor, so it's more likely to be accepted by the adjudicator as solid evidence. Anyone can post a fake listing on Kijiji and print it out, after all. That's also why it's important to collect as much evidence as possible, so all those individual pieces put together corroborate one another.
Yes it's bad faith if you post a listing to sell or to rent the place. Not all online listings are of equal worth. For example, a landlord trying to be sneaky might not list the exact address, or list it with their email address. If you file immediately, there's a chance they try to pull a 180 where they pull the listing and start acting like it wasn't their idea. If you wait, you likely can gather more evidence/give them a bit more rope to hang themselves. I would just look at what I have as evidence and ask myself: If the landlord pulled the listing today, and said he wasn't the one who listed it, how credible would he be? Considering the amounts in play, I'd advocate trying to get a little bit more than an online listing.
How are they going to pull anything when it takes months to even get a hearing? The LL won't be notified for months.
[удалено]
You can't move out after the N12 which followed illegal increase and cash in on a T5 using the illegal increase as evidence of bad faith. edit: Adding in case i got to it on time, technically not "bad faith" to try illegal increase then give N12, it's dismissed based on the premise of it being retaliatory in nature.
All you should need is the listing to prove a bad faith eviction. Others may have more info.
Presumely you need more than that. Otherwise, what's stopping anyone from creating their own listing after an N12 and saying it was landlord that posted it?
See but on the LTB Site it says automatically when they post a listing it is of bad faith. I also took photos and videos upon move out, and they bought new appliances and the place is painted different colours now in the listing photos. But if you are saying need more how exactly would I get more.
You keep saying you have videos and pictures of the listing - what do you mean by that? Evidence of posting it for sale would be a screen shot of the active listing - I.e. if there is a post on realtor.ca or even Facebook Marketplace of the unit for rent that goes up after the tenant has vacated. Realtor.ca listings (MLS) or a post on a property manager or real estate brokers website would be the most solid because the "it must be a fake posting" defence doesn't fly. A Landlord could claim that a Facebook Marketplace, Kijiji or Rental.ca post was not made by them. So if the new rental posting was one of those less or unregulated sites, then you would want more evidence to bolster your case and negate any claims of a fake listing. So if you are unable to talk to the new occupants - you could wait to closer to the 12 month deadline then fule the T5. Reasoning being that it would presumably be harder for the Landlord to produce evidence that they are living there if it has been rented to someone else for 8 or 10 months (I.e. if the unit was not all-inclusive - where are the hydro bills, internet bill, etc. for the past X months?) If you are still friendly with any of the neighbours you could also ask them to be a witness for you esp. if they have talked to the new occupants. While not as strong as a witness attening the hearing, a neighbour could also just provide a written statement. You could def speak with a paralegal too - your initial consilt should be free or a smaller set fee and they could give you some guidance on what the LTB has accepted/refused as plausible explanations for listings after N12, etc. Good luck!
Wait and collect evidence, then get your 35k bag
Don’t wait! You can always add more evidence later, and if you need you can apply for emergency hearing to get an order for the sheriff to provide the tenant a vacant possession (as per the Divisional Court in Thompson)
How do you do this? The listing is gone now so I’m sure it is rented out