If you haven’t read my previous blog, Defending an N12 Notice, you might not be familiar with the legal test for determining whether an N12 was served in good faith. In that case, you may be wondering what intent or motive has to do with the "Form N12: Notice to End Your Tenancy Because the Landlord, a Purchaser, or a Family Member Requires the Rental Unit."
The legal test for an N12 is set out in Feeney v. Noble (1994), 19 O.R. (3d) 762 (Div. Ct.). The Court held that the test of good faith is a genuine intention to occupy the premises, not the reasonableness of the landlord’s proposal. This principle was upheld in Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), where the Court held that the "good faith" requirement simply means that the landlord sincerely intends to occupy the rental unit.
So, what exactly does this mean? How do you differentiate between what is considered intent versus what would be considered a motive? Both definitions are quite similar, so let me break it down in the context of N12 notices.
Intent
Intention refers to having a specific course of action as one's purpose or objective. For example, you might intend to file your taxes in the next month or to put away the basket of laundry that has been sitting on the floor. An intention is essentially a plan to do something.
Motive
A motive is the reason or feeling that drives someone to take a particular action. It’s what influences a person to make a decision, often related to their desires, needs, or emotions. For example, your motive for filing your taxes might be to receive a tax refund to spend or to avoid trouble with the CRA. Your motive for putting your clothes away could be to have a tidy house or to ensure you have clean clothes to wear the next day. A motive is what drives your intention to do something.
How to apply Intent vs Motive to N12s and bad faith evictions
Now that you have a better understanding of the difference between motive and intention, how can you use this knowledge to ensure that the N12 notice you were served was done in good faith?
One of the best ways to do this is to consider intention as being future-oriented and motives as being past-driven.
If your landlord is unable to explain, for example, why they served you with the N12 and not your neighbor, an adjudicator may not give it much weight, as motives are largely irrelevant. However, if your landlord cannot explain how they plan to fit their five-person family into your one-bedroom unit, an adjudicator may start to question the landlord’s true intentions. A person who genuinely intends to occupy your unit would likely have an answer to that.
When are Motives Relevant?
While the Divisional Court has ruled that the “good faith” requirement means the landlord simply intends to occupy the rental unit, this does not mean that motives are completely irrelevant. In Fava v. Harrison, 2014 ONSC 3352, the Divisional Court made the following remarks in its decision at paragraph 17
“We accept, as reflected in Salter v. Beljinac, 2001 CanLII 40231 (ON SCDC), 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.”
This view was further upheld in Elkins v. Van Wissen, 2023 ONCA 789, where the Court made the following statements in paragraphs 46 and 47, specifically regarding proving whether your landlord served the notice in bad faith after you vacated and filed a T5 application:
[46] As Board member Lynn Mitchell stated in CET-67272-17 (Re), 2017 CanLII 70040 (Ont. L.T.B.), at para. 20:
20. Limiting the question of good faith to an exploration of the mind of the Landlord at the instant of serving the N12 notice, and to ignore all the surrounding circumstances, would lead to results inconsistent with the objects of the Act. To require the Tenant to establish what was in the mind of the Landlord at the instant of the N12 notice service, without regard to the surrounding circumstances and to the behaviour of the Landlord between the service of the N12 notice and the termination date, would upset the balance of interests which the Act aims to achieve. The good faith obligation attaching to an N12 notice must surely survive the instant of its service.
[47] Other Board decisions similarly demonstrate a broader approach to the bad faith inquiry under s. 57(1)(b), one that considers the parties’ conduct prior to, at the time of, and subsequent to the giving of the s. 49 termination notice. As I have explained, this broader approach results in a fairer, more meaningful assessment of bad faith in s. 57(1)(b) and accords with the purpose of the RTA to prevent unlawful evictions.
Conclusion
Now that we understand the key differences between intent and motive, it always best to primarily focus on the landlord’s future intention with respect to the unit, while not completely disregarding questions about past motivations for serving the notice.
If you require any type of assistance regarding an N12 Notice or T5 Application, please request a free consultation with me through our website or contact me at 289-309-1439 or tira@ajmurraylaw.ca. I would be happy to discuss your matter with you.
By Tira Muise
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