1.     This first issue to be determined on a motion like this one is whether or not the parties entered into an agreement to terminate.

2.     There is actually no dispute here that the Tenant signed an agreement to terminate in the Board’s Form N11 on December 23, 2016; but the Tenant argues there was no actual agreement in that he did not understand what he was signing.

3.     By way of background, in 2015 the Tenant entered into a one year fixed term tenancy agreement with the Landlord. The Tenant was represented by a real estate agent during that transaction. The Tenant’s agent spoke his language and was able to search for a suitable apartment for him. The Tenant says he only knows a few words of English.

4.     The Landlord’s Son was not involved in the formation of the tenancy agreement. He became involved about a year later when the fixed term was coming to an end. The Landlord authorised the Landlord’s Son to act on her behalf with respect to the tenancy and the Tenant was aware of this. (During the course of the hearing he repeatedly referred to the Landlord’s Son as his landlord.) The Landlord’s Son also does not speak English as his first language and needed help communicating with the Board during the hearing.

5.     With the Landlord’s consent, the Landlord’s Son has been trying to obtain possession of the unit for his own use since March of 2016. This is because his wife had surgery and is weaker than she was. Going up and down stairs is now a challenge for her and the rental unit would be more suitable as a place for her to live.

6.     Instead of serving an N12 notice to terminate for Landlord’s own use the Landlord’s Son approached the Tenant and asked him if he would be willing to leave voluntarily.

7.     On March 31, 2016, the Landlord signed a notice to terminate in form N8 and when the Landlord’s Son approached the Tenant about agreeing to terminate at the end of the lease he gave a copy of this N8 Form to the Tenant. It is not correctly filled in, nor is it the correct kind of notice the Landlord should have served. In the box provided for details it says:

8.     The date of termination on this notice was originally June 30, 2016, but it was altered to read May 31, 2016, and the Tenant counter-signed the change.

9.     The Landlord’s Son says the Tenant agreed to move out for May 31, 2016. When the Tenant was asked during the hearing if he agreed to move out for May 31, 2016, his answer was that they asked him to move out for May 31, 2016. When the evasiveness of this response was put to him and he was asked the question again, he replied that they told him they wanted the unit back. In other words, the Tenant would not say whether or not he agreed to move out for May 31, 2016.

10.  The Tenant’s set aside motion is with respect to an eviction order based on an agreement to terminate signed on December 23, 2016, so it is not directly related to these events that occurred at the end of the lease term in the spring of 2016. However, the Tenant’s set aside motion says in part that the Tenant signed the agreement to terminate “because the landlord told me he would not renew the lease and therefore I had to leave”. Given the fact that the lease agreement terminated on or prior to May 31, 2016, this statement appears to be in reference to what occurred in the spring of 2016 and not what occurred when the agreement to terminate was signed.

11.  There is no dispute between the parties that the Tenant did not move out May 31, 2016. Instead he telephoned the Landlord’s Son and asked to be allowed to stay longer. The Landlord’s Son agreed.

12.  On June 30, 2016, the Landlord issued another N8 notice just like the previous one, again writing on it that the Landlord wants the unit for personal use. The date of termination on it is December 31, 2016. The Tenant again countersigned the notice.

13.  There is no dispute that the Tenant then telephoned the Landlord’s Son again and asked for another extension because he had not been able to find a new place to live. Again the Landlord’s Son agreed. But this time he filled out an N11 agreement to terminate and asked the Tenant to sign it, which the Tenant did. It has a date of termination on it of April 30, 2017.  

14.  The Tenant says that prior to signing the agreement to terminate the Landlord’s Son tried to get him to agree to a rent increase of $100.00 a month and then $50.00 a month. The Landlord’s Son denies any such conversation occurred. The parties agree that the Tenant has never paid any rent increase. The set aside motion makes no mention of this alleged attempt on the part of the Landlord’s Son to demand an illegal rent increase.

15.  On any application before the Board the person asserting a fact has the burden of proving that fact on the balance of probabilities. That means the Tenant’s evidence must establish it is more likely than not this conversation about a rent increase occurred. Given the evidence here I am not satisfied the Tenant has met that burden. The parties’ evidence is essentially equal but opposite and the behaviour of the Landlord’s Son starting in the spring of 2016 has consistently been focussed on regaining possession of the rental unit. A legal rent increase could have been taken in the spring of 2016 but was not so it seems unlikely the Landlord’s Son would start demanding additional rent in lieu of continuing his efforts to regain possession of the unit.

16.  After the agreement to terminate was signed the Tenant again called the Landlord’s Son to say he had been unable to find a new apartment and would the Landlord agree to extend the date of termination. The Tenant says that was about one month prior to the date of termination of April 30, 2017. This time the Landlord did not agree and the Landlord’s Son filed this application with the Board on April 25, 2017.

17.  The Tenant was asked on cross-examination whether or not he understood he would have to leave April 30, 2017 regardless of whether or not he located a new unit. He replied that he knew he was supposed to leave but could not find a new home. I again pointed out this was an evasive answer and put the question to him again; once again the Tenant failed to say whether or not he understood and simply repeated his statement that he knew he was supposed to move.

18.  Given the history between the parties, the evasiveness of the Tenant’s answers to each question about his knowledge and understanding, and the fact that the Tenant was able to communicate with the Landlord’s Son in English over the telephone on at least three occasions, the assertion that the Tenant did not understand what he was signing when he signed the agreement to terminate is not credible. The Tenant clearly understood he was agreeing to move out.

19.  This means the next issue for the Board to decide is whether or not it would be unfair in all of the circumstances to set aside the eviction order.

20.  The Tenant’s circumstances are that he has lived in the unit for two years and has been aware for more than a year that the Landlord wants the rental unit back so her Son and his wife can live in it. The Tenant’s wife has apparently been very ill and in the hospital recently which has interfered with the Tenant’s search for new housing.

21.  The Landlord’s circumstances are that her Son’s wife is weak and in need of a place to live with fewer mobility challenges and the Landlord’s Son has agreed to give the Tenant more time to move when asked on a number of occasions.

22.  The Tenant’s representative raised the fact that the Landlord could have served an N12 on the Tenant at any time. An N12 is a notice to terminate for landlord’s own use. The Landlord’s Son replied that the Landlord did not want to do that but preferred working with the Tenant to try and obtain agreement.

23.  Given all of the above, I am not satisfied it would not be unfair to the Landlord to set aside the eviction order. The Landlord has been patient and understanding and has a legitimate desire to regain possession of the unit so the Landlord’s Son and his wife can be more suitably housed. The Tenant has been aware of that for more than a year and agreed to terminate the tenancy.

24.  As a result the Tenant’s motion is denied.

25.  With respect to the lifting of the stay the Tenant asked for an additional three months to find a new unit and the Landlord’s Son agreed to that request at the hearing. An order shall therefore issue lifting the stay of the eviction order effective August 31, 2017.

26.  This order contains all of the reasons for the decision within it. No further reasons shall be issued.