Guest Contributor: Should paralegals be allowed to practice in family court?

If you are involved in a family court case in Ontario and cannot afford a lawyer, should you have the option of hiring a paralegal? Justice Annemarie Bonkalo was tasked by the attorney general and the Law Society

If you are involved in a family court case in Ontario and cannot afford a lawyer, should you have the option of hiring a paralegal? Justice Annemarie Bonkalo was tasked by the attorney general and the Law Society of Upper Canada to study this issue and write a report.

The Family Legal Services Review report was recently released. It makes a number of recommendations to improve access to justice in family court. The most controversial of the recommendations was that licensed paralegals in Ontario should be able to obtain a specialized licence to be permitted to represent in family court on certain matters.

There are currently over 8,000 paralegals in Ontario licensed by the law society. Most work independent of lawyers. These are the people you call to fight traffic tickets, as well as to represent you in small claims court, at the landlord and tenant board, in criminal court for certain offences and at other tribunals.

The report states that 57 per cent of people go unrepresented in family court as they cannot afford a lawyer. Yet, they make more than the poverty wages required to qualify for legal aid.

The response to this report by some lawyer organizations and even some judges was predictable. They would have you believe that family law is too complicated for paralegals. Paralegals don’t have the education necessary to represent in court. Paralegals should be supervised by lawyers.

First and foremost, paralegals and the judge who wrote the report just want the people of Ontario to have access to justice. This issue is too important to you for there to be a turf war between lawyers and paralegals.

Paralegals currently provide services in many courts and tribunals. We deal with complex laws and their interpretation every day. Family law would be just one more area to learn and apply the laws.

The lawyer groups are correct that paralegals do not have the education today to work in family court. Courses still need to be developed. Stringent specialized licensing tests still need to be prepared. The lawyers who are specialists in the field should be involved in making sure that the course materials set a high bar for paralegals who want to practise family law. We want to provide you affordable access to justice, but not for the sake of a low quality education.

There are places in Canada and the United States where paralegals operate only under the supervision of lawyers. That has never been the model in Ontario. Paralegals have operated independent of lawyers for decades. They have been regulated and licensed since 2008.

The benefit to the consumer of a paralegal working independent of a lawyer is that the consumer does not receive a lawyer’s hefty bill for work done by a paralegal. It would defeat the intended increased access to justice if paralegals were required to work on family law matters under the supervision of a lawyer. New lawyers are permitted to appear in family court without the supervision of a senior lawyer.

The Ministry of the Attorney General and the law society are developing an action plan as a result of the Family Legal Services report. The action plan will be released by the fall of 2017. You are invited to send feedback based on Justice Bonkalo’s report no later than May 15 to commentsflsr@lsuc.on.ca 

Published March 30, 2017  Copied from Windsor Star

Guest Contributor: Should paralegals be allowed to practise in family court?

Do’s and don’ts of small claims court

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court.

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court. Currently you can sue for money damages of up to $25,000 or the return of personal property not exceeding that amount. Ontario small claims court bears no resemblance to American television shows. The judge does not take an active role in questioning witnesses. You do.

Cases can be won or lost based on your ability to effectively question the opposing side’s witnesses. Small claims court is far less complicated than the Ontario Superior Court of Justice. But that may be of little comfort to the litigant who is trying to go through the steps of bringing an action to trial, obtain judgment and successfully collect their money. At the courthouse, many people can be seen clutching court forms, trying to navigate their way through the system. The court clerks can only give general information on procedures, not legal advice.

When cases become too complicated, people and companies often hire a licensed paralegal or a lawyer to represent them. They are the experts at navigating this mine field.

At the first hearing of a defended claim, the parties meet in front of a deputy judge or mediator to try to settle the case. At this settlement conference judges sometimes urge a person with a complicated case to hire a paralegal or lawyer. Trials are measured in hours, a day, or multiple days. The formal procedures for hearing evidence, marking documents as exhibits and questioning witnesses take far longer than what is seen on so-called reality court television shows.

Dr. Julie Macfarlane released a report on self-represented litigants in 2013.In it she found, unsurprisingly, that the majority of litigants who decide to self-represent do so because they cannot afford representation. Another reason for people self-representing was that they were attracted to the do-it-yourself approach. Many believed they could handle the case themselves because so much information was available on the Internet.

But a losing party at trial has more to worry about than paying the opposing side’s representation fee. A self-represented party can lose a case in large part due to not knowing how to properly present it to the judge. This requires calling the necessary witnesses, asking them the right questions, knowing what to ask witnesses appearing for the other side, presenting the relevant documents and summarizing the law and the facts to the judge.

Many people know they can hire a lawyer but many don’t know licensed paralegals can represent them in small claims court.

Those who choose to self-represent against a seasoned paralegal or lawyer are at a severe disadvantage. Many people think success in small claims is easier than the reality.After almost every trial there is one party who is unhappy. Settlement should be encouraged at every stage of the action.

The problem is not the court system. The rules and procedures are there to make sure the process is fair. But litigants need to understand that when a case becomes too complicated to represent themselves, they should hire a legal professional. Finally, the smartest and happiest litigants are usually those who compromise and come to a settlement before trial.

January 7, 2016  Copied from http://torontosun.com/2016/01/07/dos-and-donts-of-small-claims-court/wcm/a3946a31-7e95-44c7-aa5a-faba31f407ee

Proposed Changes to the Residential Tenancies Act

The Ontario government is seeking written submissions until the June 30, 2016 on proposed changes to the Residential Tenancies Act. The RTA effects every residential landlord and tenant; particularly those who have evictions applications

The Ontario government is seeking written submissions until the June 30, 2016 on proposed changes to the Residential Tenancies Act. The RTA effects every residential landlord and tenant; particularly those who have evictions applications heard in the provincially run Landlord and Tenant Board.

The proposed changes are made with intention of encouraging small landlords to provide rental housing. The proposal can be found at  http://www.mah.gov.on.ca/Page14837.aspx

Tenant groups are up in arms, stating that the proposed changes would make it too easy for a tenant to be evicted. Will newly appointed Minister of Housing Chris Ballard, follow though under the criticism of these tenant groups and makes changes favouring small landlords?

The current RTA puts too many obstacles in place for a landlord to evict a tenant. I believe some changes are necessary. I am a licensed paralegal with 20 years experience representing at the Landlord and Tenant Board.

The RTA is so complex and confusing for small landlords. With an eviction of a tenant being so important, and so much money on the line if an eviction is denied, I don’t understand why some small landlords represent themselves at the Landlord and Tenant Board. Understanding the RTA, case law, knowing what evidence is relevant, and how to properly ask questions of the opposing side and their witnesses is a skill which takes years to learn.

The large scale landlords know the law. Still, they always hire a licensed paralegal or lawyer to represent them at the hearing.

An application to evict a tenant at the LTB can be dismissed for technical reasons. Some notices of termination given to tenant must have very detailed information with dates and actions of the tenant noted in order to support an eviction. Other reasons applications are dismissed are due to minor errors such as failing to name all the tenants, as well as failing to enter an apartment number on the form.

One of the proposals the government is seeking writing submissions on is to further clarify provisions for substantial compliance with the RTA with respect to the content of certain forms, notices and other documents.

The notices of eviction are not complicated to complete. I can see why landlords think it is simple enough to do themselves. The test is whether the notice of eviction is filled out with enough information to comply with the RTA and the case law. If not, the board member must dismiss the eviction application.

If the proposed changes are made, maybe I won’t have as many small landlords coming to me for representation after their application is dismissed for failure to properly complete the notice. When an application is dismissed for these technical reasons at least I can help the landlord.

When a landlord self-represents and the application is dismissed after a full hearing as they did not have enough evidence, didn’t know how to ask questions the tenant, or didn’t know the law, I am limited in the help I can provide. I can request a review of the decision by another arbitrator at the LTB if there was a serious error in making a decision. If that is unsuccessful, usually the landlord’s only other option is to hire a lawyer to file an appeal with the Divisional Court. An appeal can take many months and thousands of dollars before it is heard.

Another common problem is cases involving an eviction where the landlord or a close family member requires the apartment for their own use. The law is clear. The person who wants to live in the apartment must file an affidavit with the board. If you show up at the hearing without this affidavit, your application will be dismissed.

The government is looking at a proposal to allow landlords and tenants to file unsworn statements in support of applications and motions, rather than affidavits.

At a hearing for non-payments of rent a tenant can without any notice to the landlord, raise issues as if they had filed their own application. Some of the more common allegations are the landlord entered my unit illegally, the landlord harassed me, and the landlord failed to make repairs. If the tenant is successful at proving these allegations, not only must the board consider delaying or denying an eviction, but the board can also order the landlord to pay money to the tenant for these breaches of the RTA.

The government is seeking submissions on a proposal to require tenants to disclose any issues that they intend to raise at rental arrears eviction hearings to the landlord prior to the hearing. This would prevent these surprise arguments.

These are just a few of the ideas the government is considering to improve the eviction process. Unless or until these changes are made to the RTA, the best advice I can give any small landlord is to hire a licensed paralegal to represent them at any LTB hearing.

Published June 22, 2016  –  copied from http://myhomepage.ca/proposed-changes-residential-tenancies-act/?publication=condolife

Paralegals able to help during court matters

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $25,000 or less. The court also has the power to order return of property not exceeding that value.

  • Published in the The Intelligencer (Belleville)
  • 14 Jun 2016
  • MARSHALL YARMUS — Marshall Yarmus is a licensed paralegal specializing in small claims court. His company, Civil Litigations, operates in Toronto.

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $25,000 or less. The court also has the power to order return of property not exceeding that value.

The government just announced starting a new court action can now be done online for all types of claims province-wide, through a secure government website.

The Ontario government wants to make the court more accessible, by offering this new online filing service. However, just because it is easier to file documents doesn’t mean the small claims court procedures are easy to navigate.

Many people attempt to represent themselves in the small claims court. They have that ‘do it yourself’ attitude. They mistakenly believe the small claims court is like American courtroom reality television. Nothing can be further from the truth. Forms must be filed correctly. Procedures must be followed. A trial in Ontario looks nothing like television.

Court staff can give you general information procedures on how to complete forms, but they are not supposed to give legal advice.

This doesn’t stop people from asking court staff for legal advice when the case becomes complicated. A staff member may even give advice which they shouldn’t. Since court staff are not legally trained, the advice given, although well meaning, may be wrong. Unless the person gets professional legal advice the error may prove costly.

When your case becomes complicated, or you need someone who has knowledge of the rules of the court, the evidence and witnesses needed, and the particular law concerning the facts of your case you should turn to a licensed paralegal or a lawyer.

Ontario is the only jurisdiction in North America where a paralegal is a trained and educated professional, who is licensed, insured, and regulated. Paralegals are authorized to provide legal services directly to the public. A paralegal in Ontario can represent you with your legal matter by offering you legal advice, filling out forms, and representing you at trial in certain courts (including small claims court) and tribunals.

The small claims court process starts out by completing and issuing a Plaintiff’s Claim. The party being sued must file a defense with the court within 20 days of service. If this is done, the matter will be scheduled for a settlement conference before a judge or a mediator. This, in my opinion, is the most important hearing. Selfrepresented litigants may not recognize its significance.

A judge at a settlement conference has the power to make a number of orders, including dismissing a claim which has no merit, and to order the opposing side to produce documents which helps your case. If you don’t know to ask the judge to make a specific order, this may hurt your case.

The settlement conference is a great opportunity to allow the parties to come to an agreement on their own. It is a much better outcome than having a trial judge impose a decision. You could go to trial and get an order the other side owes you money. It is then up to you to collect through the process available through the court.

If the case is not settled, you will end up at trial. Here, you must present your case to the judge in an organized and understandable manner. Licensed paralegals and lawyers who specialize in small claims court representation know how to prepare a case for trial. They know how to question the opposing side’s witnesses. Cases are often won or lost based on this skill which can take years to learn properly.

Do you have a general question about small claims court procedures? Fax or e-mail your questions to info@getlegal-resultsca 1-877-931-1011. The best questions will be answered in the next edition of this article.

Questions commonly posed to paralegals

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale

In this article I will address some frequently asked questions paralegals who specialize in small claims court representation receive.

I have a judgment. How do I collect my money?

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale of personal property, a garnishment and a judgment debtor examination. How much information you have on the debtor will determine which is the best method for your case.

A writ of seizure and sale of lands effectively acts as lien against real estate owned by the debtor. You are allowed to force the sale of the property. However, the cost to you to do that is so much that forcing a sale is rarely pursued.

A writ of seizure and sale of personal property is, in my opinion, a last resort. The sheriff is not allowed to enter a person’s home to seize anything. In the case of an individual debtor this method is usually restricted to seizure and sale of a car. To seize a car you will need to do searches to prove the debtor owns the car outright. It cannot have a lien against it. The sheriff will want between a $1,000 and $3,000 deposit before seizing and selling a car.

A garnishment is a court order forcing either an employer, a bank, or a company who owes money to be a business debtor for accounts receivable to pay the money to the court. If you have the necessary information, this is the best tool to force payment of the judgment.

A judgment debtor examination allows you to ask almost any questions of the debtor regarding their past, present and future ability to pay. Used properly by someone who knows what to ask this is powerful method to collect information to help you enforce the judgment. However, since debtors don’t always show up for the scheduled hearing, you should only use this if you don’t have information on the debtor.

How much does a paralegal charge for a small claims court case?

Like every profession, different people charge different rates. You usually get what you pay for. The lowest priced paralegal may not be the best choice. Some of the factors paralegals consider in determining their price are: their years of experience, whether they specialize in that area, the difficulty of the matter and importance of the matter to the client, and special circumstances, such as the loss of other retainers, postponement of payment, uncertainty of reward, or urgency.

Paralegals may charge based on an hourly rate, a flat fee for a particular portion of the case or the entire case, or on a contingency basis.

An hourly fee seems straight forward. However, small claims court cases often do not proceed as planned. There could be unexpected motions to the court, an amendment of a claim or defence, the need to defend a claim by brought by the Defendant, or more than one settlement conference.

In a flat fee also known as a block fee arrangement, the paralegal may take the risk by changing a known and agreed fee in advance that unexpected things don’t happen that require more of their time than expected.

A contingency fee is where a paralegal’s fee is based on a percentage of the amount recovered from the debtor. The paralegal is entitled to request the client pay the out of pocket expenses in advance. Since the paralegal is taking the risk here and delaying payment of any fees until money is recovered, you could pay the most fees though this method.

North York paralegal ‘excited’ services could expand to include family law

A North York based paralegal is ‘excited’ that his seven-year fight to have his profession be allowed to offer some family law services to clients is one step closer to fruition.

A North York based paralegal is ‘excited’ that his seven-year fight to have his profession be allowed to offer some family law services to clients is one step closer to fruition.

The Law Society of Ontario, which regulates lawyers and paralegals, voted last month to commit to develop a special license which would support training for paralegals in dealing with some family law services.
“I’m excited,” said Marshall Yarmus of Civil Litigations Paralegal Services. “Finally – it’s been seven years working at this.”

The special licence will support training in navigating the court process, form completion, investigating forms such as financial, motions to change, and uncontested divorces, and possibly other areas outside the courtroom, he said.

“(Family law) is the one area I get the most phone calls about,” said Yarmus, a paralegal for the past 21 years who currently works near Bathurst Street and Lawrence Avenue. “People can’t afford lawyers or can’t afford to keep lawyers on their case.”

The Dec. 1 decision followed a report from the former chief justice of the Ontario Court of Justice, who was tasked by the law society and the Attorney General to consider whether a broader range of service providers could deliver certain family legal services.

The report prepared by Justice Annemarie Bonkalo noted 21 recommendations, including a special licence to allow paralegals to provide certain types of family legal services such as custody and simple divorces without property.

In 2014 to 2015, more than 57 per cent of Ontarians did not have legal representation in family court, according to the Law Society of Ontario.

Currently, paralegals can act in small claims court, on non-criminal provincial offences, in criminal matters where the maximum penalty doesn’t exceed six months in prison and/or a $5,000 fine, and before administrative tribunals.

Details remain vague and a timeline has not been set, but Yarmus estimates it will be a “couple years” before paralegals are allowed in family court, adding he’s in favour of specialized licenses.

“If we can pass the special test, then we should be allowed (to deal with family law),” he said.

by Fannie Sunshine
Fannie Sunshine is a reporter for Metroland Media Toronto

https://www.insidetoronto.com/community-story/8038272-north-york-paralegal-excited-services-could-expand-to-include-family-law

Published in the North York Mirror January 16, 2018

GUEST COLUMN: Paralegals in family court

It only took seven years of fighting with the Law Society of Upper Canada to get it to take the first steps towards allowing paralegals to offer some family law services.

BY MARSHALL YARMUS, SPECIAL TO THE SUN

It only took seven years of fighting with the Law Society of Upper Canada to get it to take the first steps towards allowing paralegals to offer some family law services.

The Law Society is the regulator of lawyers and paralegals in Ontario.
It is required to regulate in the public interest and to facilitate access to justice.

Most people wouldn’t pick a fight with their regulator; an organization that has the ability to suspend or revoke their licence.

I am not like most people.

On Dec. 1, 2017, the Law Society’s board of directors approved an action plan which included developing a specialized licence for paralegals with appropriate training to offer some family law services.

This licence will support training in such areas as navigating the court process, form completion, investigating forms, motions to change, uncontested divorces and possibly other areas outside the courtroom context.

At the same time, the Law Society will assess what additional family law services paralegals can offer, including advocacy inside the courtroom, and consider how to develop a further expanded licence.

What led to this announcement?

I and other paralegals were receiving calls from people who had family law disputes, but did not have the money to hire a lawyer.
In 2010, I scheduled a motion to be heard at the Law Society’s annual general meeting.

It asked the Law Society to study the barriers to allowing paralegals to offer some family law services.

I debated family law lawyers on this issue on radio and television.

Ultimately, the motion was withdrawn prior to being heard based on a commitment to study the issue.

In February, 2011 the elected leader of the Law Society announced she would undertake a study to determine if paralegals should be allowed to do family law work.

Only one report was released before the initiative was abandoned.

In 2013, I again led a group of paralegals who scheduled a motion to be heard at the Law Society’s annual general meeting.

Hundreds of lawyers showed up to oppose this non-binding vote, only to find the motion had been withdrawn hours earlier.

Since 2013, I have written a number of newspapers articles criticizing the Law Society for failing to address this issue.

Some family lawyers argued family law was too complicated for paralegals to handle.

They said paralegals could handle small claims court, landlord and tenant board and provincial offences cases, and represent people in other courts and tribunals, but not family law where the stakes were too high.

In 2016, the Attorney General and the Law Society appointed Justice Annemarie Bonkalo to study the issue and write a report.

Justice Bonkolo made 31 recommendations to improve the family court system, including having paralegals with a special licence being allowed to prepare forms and do some family court advocacy work.

Following Justice Bonkalo’s report the Law Society and the Attorney General began to develop an action plan.

The Dec. 1, 2017 approval of this action plan marked the beginning of the path towards the public having an option of legal providers for family law matters.

It will take time to develop the curriculum and train paralegals in family law.

However, I am proud to have been one of the main motivators for the Law Society to address this lack of access to justice issue.

Yarmus is a licensed Toronto paralegal at the firm Civil Litigations.

GUEST COLUMN: Paralegals in family court

Published in the Toronto Sun January 6, 2018

Paralegals in family law

The former vice president of the Paralegal Society of Ontario says the Law Society of Ontario let down the public when it took on responsibility for regulating paralegals in the province only to ban them from practising in the area of family law.

Legal Report \ Family LawMarch 19, 2018|Written By Michael McKiernan

Paralegals are poised to have more of a role in family law disputes despite resistance from the bar.

For Marshall Yarmus, the end of a decade-long journey is finally in sight.

The former vice president of the Paralegal Society of Ontario says the Law Society of Ontario let down the public when it took on responsibility for regulating paralegals in the province only to ban them from practising in the area of family law.

Unsatisfied by the lack of progress on the issue, he instigated public campaigns urging the regulator to complete the job it started in 2007. In 2010 and 2013, Yarmus transformed the traditionally sleepy annual general meeting of the LSO into essential viewing events for the profession as part of a team tabling motions to expand the scope of paralegal practice to include family law.

Both motions were ultimately withdrawn at short notice in exchange for assurances of further study, but it wasn’t until December 2017 that Yarmus felt his efforts were finally vindicated. That was when benchers of the LSO committed to the creation a special licence for paralegals to offer limited services in family law, including process navigation, form completion and uncontested divorces.

In addition, the regulator’s governing body endorsed a plan to study what other services should come under a further expanded licence, including the possibility of courtroom advocacy by paralegals, as part of its response to the Family Legal Services Review by former Ontario Court Chief Justice Annemarie Bonkalo.

“One of the reasons I started this campaign was because I kept getting calls from litigants looking for services at a lower price, so I’m excited that we’re finally going to get access to justice for people with family law problems who can’t afford a lawyer,” says Yarmus, who runs Toronto-based Civil Litigations Paralegal Services.

“This time it’s actually going to happen. The law society and the attorney general are determined to implement this, and people will at last have a choice of legal service provider,” he adds.

Although he hasn’t yet decided whether to personally train up in family law once the new licence is available, Yarmus says he supports the move to mandate extra requirements before paralegals can begin practising in the area.

“Education is very important. We don’t want anyone who’s unqualified to be doing it,” he says.

But as paralegals inch toward regulated family law practice, a group of familiar foes stands in their way: the family law bar. Many lawyers in the area argue that anything short of a law degree is inadequate preparation for the complexities of family law.

Orillia, Ont. lawyer Fay McFarlane says the law society is making a mistake by giving paralegals an entryway to family law.

“It may be disastrous. Even us, as family law practitioners, have issues sometimes dealing with clients and their emotions,” she says. “I don’t think paralegals can handle it.

“If they had the training that lawyers have, maybe they could, but that’s why we’re lawyers,” McFarlane adds.

“Family law is complicated enough, but I don’t know how you can solve the problems associated with that by lowering the standards for people to be able to practise,” says David Harris-Lowe, president of the Simcoe County Law Association and partner at Barrie, Ont. firm Barriston Resolution Services.

He says the LSO proposal won’t directly affect him because his family law clients are unlikely to consider hiring paralegals even if they had the option.

“I recognize that there is an element of self-interest, at least to some lawyers,” Harris-Lowe says. “But when I hear that judges are saying this is a problem, that’s more concerning to me, because they don’t have that self-interest. Their interest is in having cases resolved fairly and expeditiously in the court system.”

Members of Ontario’s family law bench upped the volume of their objections after Bonkalo’s March 2017 report recommended paralegals be allowed to provide legal services, without supervision by lawyers, in the areas of custody, access, simple child support cases, restraining orders, enforcement and simple divorces without property.

A program of lawyer supervision would have no impact on the access to justice crisis in family law, she wrote, adding that “only licensed and independent paralegals can offer meaningful competition to lawyers.”

Despite initially favouring a blanket ban on courtroom appearances by paralegals in family law matters, Bonkalo explained that her mind changed during the consultation process.

“As I continued to explore the issues and hear from different communities, it became clear to me that precluding paralegals from appearing in court would be a disservice to clients,” she wrote, noting that demand for help among unrepresented family law litigants peaks when they are called to appear in court.

Provincial Court Justice Marion Cohen voiced her concerns with Bonkalo’s conclusions to the Toronto Star, warning that “paralegals will squeeze the lawyers out and the quality of justice in the Ontario Court of Justice will suffer” if they are implemented.

In his submission to the LSO, Justice George Czutrin, a senior judge of the Superior Court’s family branch, said it was “unfortunate” that Bonkalo’s report gave so little weight to the concerns “experienced [by] family justice participants,” adding that allowing paralegals to provide family law advice was not the answer to challenges in the system.

“In fact, it is much more likely to cause its own set of problems without adding real value,” Czutrin wrote.

Kavita Bhagat, a family lawyer in Brampton, Ont., says any attempt to hive off parts of family law as acceptable for paralegals to practise is doomed to failure because of the dynamic nature of disputes. In any case, she says, Bonkalo’s report put too little emphasis on alternative methods of dispute resolution.

“Paralegals are attractive to the attorney general because it’s a very easy solution to propose,” she says. “But it’s also a Band-Aid solution that ignores the real problems of family law.”

At the law society, Howard Goldblatt, chairman of its access to justice committee, won’t be tied down to any deadline for implementing the new paralegal licence or reporting back on its possible future expansion. But the process will give paralegal critics another chance to make their case.

“We want to ensure that those who have views and voices are heard,” he says. “Ultimately, the law society’s job is to regulate in the public interest, and that is what will prevail, as opposed to any stakeholders on either side of the debate.”

Julie Macfarlane, a law professor at the University of Windsor and director of the National Self-Represented Litigants Project, says Ontarians are lining up to use paralegals in family law. She’s frustrated both by the glacial pace of developments and the arguments of family lawyers, which she calls “elitist.”

“There has been a lot of bad talk about paralegals, which I think is unfair. It seems disingenuous to suggest that nobody but lawyers can do this work,” Macfarlane says.

Still, she’s puzzled by the vociferousness of the bench’s opposition to Bonkalo’s recommendations.

“I would have thought that it would be better for them to have someone representing a party than nobody,” Macfarlane says.

“The underlying problem is the culture that says lawyers have to have their hands around everything. There’s a tremendous resistance to loosening the grip,” she adds.

Even in jurisdictions that have embraced family law paralegals more openly, Macfarlane says, there is evidence of lawyers and law societies inhibiting their progress.

For example, the Law Society of B.C. allows designated paralegals to offer family law services under the supervision of a lawyer. However, the law society was forced to abandon a pilot project allowing paralegals into the courtroom when only three lawyers took advantage of the rule by sending paralegals under their supervision before a judge over a two-year period, producing insufficient data for assessment.

Michele Ross, a designated paralegal at Quay Law Centre in New Westminster in B.C. who was one of the few paralegals to make it into court as part of the project, says it was a missed opportunity.

“Some lawyers would benefit from some education about what we can do and how we can help clients save money,” she says.

Macfarlane says there are Ontario family lawyers who support a bigger role for paralegals, but she worries they feel forced into silence because of the overwhelming consensus against them.

In Vancouver, Leisha Murphy, partner at Connect Family Law, feels no such pressure. She says her firm’s designated paralegals are well equipped to deal with many aspects of clients’ cases and would love to see the law society offering them more independence in practice.

“I prefer to go to the higher-level aspects, like the strategic direction of the file,” she says. “We need to loosen the reins. With so many people unrepresented, it’s inevitable in the long run anyway, and we as lawyers need to adjust to that reality.”

http://www.canadianlawyermag.com/author/michael-mckiernan/paralegals-in-family-law-15386/

How to evict a tenant in Ontario has gotten harder.

Residential landlords have fewer rights in Ontario since the Wynne government passed the Rental Fairness Act last year. The changes have been coming in stages. Some of the changes include:

Residential landlords have fewer rights in Ontario since the Wynne government passed the Rental Fairness Act last year. The changes have been coming in stages.  Some of the changes include:

Rental units built after 1991 are no longer exempt from rent control. This includes many condominiums in Toronto. Previously, a landlord in Ontario could increase the rent as much as they wanted at the end of a lease provided they used the proper form and gave notice.

Changes were made to the eviction process in Ontario regarding a landlord requiring the property back as they or an immediate family member requires the property for their own use. First, the landlord bringing this application must be an individual. Prior to the change a corporation with one shareholder could bring this application.

The landlord must now pay the equivalent of one months’ rent to the tenant as compensation for serving the tenant with notice to vacate. The landlord must pay this compensation to the tenant before the eviction date set out in the notice. If the landlord is unsuccessful at the hearing in obtaining an eviction order, the act now states the Landlord and Tenant Board may order the one month’s compensation to be returned to the landlord.

The person who intends to move in now confirms in an affidavit that in “good faith” they intend to live in the apartment for at least one year. Previously, the Residential Tenancies Act was silent on how long the landlord or family member was required to live there.

The law has changed to give a former tenant more rights. If a tenant moved out because they received the proper form stating that as the landlord or their family member planed to move in, and the landlord or their family member didn’t move in, the tenant can file an application.  At the hearing it is now the landlord’s onus to prove that the notice to vacate was given in “good faith.” Previously it was the tenant who had to prove bad faith.
Lease terms no longer matter. New section 134(1.1) effectively takes away a landlord’s right to sue in small claims court for the balance of the lease term. If a tenant vacates prior to the end of the lease, a landlord can now only sue for unpaid rent up to the date the tenant vacated.

Starting April 30, 2018 all new tenancies will require prior to the beginning of the tenancy for the landlord to use the new standard lease form. If not provided prior to the start of a tenancy, the tenant can demand the landlord provide this standard lease form. If the landlord fails to do so within 21 day of the demand, the tenant can withhold up one month’s rent.

If the landlord does eventually provides the standard lease form within 30 days of when the rent was first withheld, the landlord may require the tenant to re-pay any rent withheld. However, if the landlord takes longer than 30 days from when the rent was withheld to produce the standard lease, the tenant may keep the money.

Why would the Wynne government make these dramatic changes favoring tenants? It is simple really. There are more potential tenant voters in Ontario, then potential landlord voters.

How do I collect my Small Claims Court or Landlord and Tenant Board judgment?

First, does the debtor own a house, condo or any land in Ontario? If the answer is yes, you may choose to issue a Writ of Seizure and Sale of Lands, and file it with the sheriff in the jurisdiction where the debtor owns property.

The Toronto Small Claims Court deals with thousands of cases a year. It is part of the small claims Ontario system.

There are many advantages to be represented by a paralegal Ontario, however many people represent themselves.

A question I am asked several times a week is “How do I collect my judgment?” There are several methods to do this.

First, does the debtor own a house, condo or any land in Ontario? If the answer is yes, you may choose to issue a Writ of Seizure and Sale of Lands, and file it with the sheriff in the jurisdiction where the debtor owns property.

This acts like a lien. The debtor will not be able to sell the property or obtain a mortgage from a new lender without paying off the judgment in full, including daily interest. The writ expires in six years. It can be renewed before or after expiry, if necessary.

If you don’t know whether your debtor owns lands, our firm can do a search to find hidden properties owned by the debtor in Ontario.

Often the quickest method to collect a judgment is to issue a Notice of Garnishment. In order to do this you need to know where the debtor works or where they bank. To garnish a bank account you must know the bank and branch location where account is located.

If your debtor is a business you may consider garnishing accounts receivable, or rent paid to the company.

Another choice is to have the sheriff seize and sell personal property of the debtor. This may be a worthwhile method if the debtor is a business, and you know exactly what assets the business debtor owns. You must be willing to put up a large cash deposit with the sheriff. You also need to do searches to prove that there are no liens against the property.

There is a lot of false information out there about the powers of the sheriff to seize items under a Writ of Seizure and Sale of Personal Property. The sheriff can only enter a business address. It has no proper to enter a residence. The Execution Act lists a number of things a sheriff has no power to seize.
The Creditors’ Relief Act, 2010 sets out how money is to be paid out by the sheriff if there are multiple creditors.

If you want the sheriff to seize and sell an automobile, you need the make, model, and VIN number. In addition to the large cash deposit you will have to provide the sheriff, you will also be required to do searches proving the vehicle is solely owned by the debtor, and there are no liens on the vehicle.
If you have no information about the judgment debtor’s assets, you will probably choose to issue a Notice of Examination. This enforcement method is usually a last resort as it has its share of drawbacks. You will need to serve the debtor with the Notice of Examination either personally, or if served at the debtor’s residence it can be left with an adult member of the household, provided you mail another copy within 24 hours.

The debtor may show up for hearing. If they do that is great. A skilled paralegal Ontario knows how to get the debtor to answer questions about their ability to pay the judgment. They will spend some time asking questions of the debtor. Afterwards, the creditor or their representative may ask the judge for an order for monthly payments. There are both advantages and disadvantages to obtaining such an order.

The paralegal Ontario may also ask the judge for an order for the debtor to produce documents.
If the debtor does not attend for the hearing, a Notice of Further Examination Hearing or Contempt Hearing may be ordered. The process varies across the province. At some point if the debtor fails to attend a Contempt Hearing, a warrant for their arrest may issue.

This has been a brief overview of the major judgment enforcement options. There are many books that have been written about the art of judgment enforcement. This is not intended to be legal advice.
If you need help collecting your judgment, contact us at 416-229-1479 or visit our website at http://civilparalegal.com/home_services/judgement-enforcement/

Will the new Standard Lease Form reduce Landlord Rights Ontario?

The new 13 page Standard Lease Form is supposed to provide both landlord rights Ontario and provide tenants information about their rights and responsibilities. Reduce the illegal terms in leases and misunderstandings caused

Starting April 30, 2018 every new residential tenancy (with a few exceptions) entered into in Ontario must use the government’s new Standard Lease Form.

The new 13 page Standard Lease Form is supposed to provide both landlord rights Ontario and provide tenants information about their rights and responsibilities. Reduce the illegal terms in leases and misunderstandings caused by verbal tenancy agreements, and reduce the need for Landlord and Tenant Board hearings to resolve disputes.

The Standard Lease tries to address all landlord and tenant relationships. It does this poorly. There are many sections which are confusing or likely to confuse.

Does the 13 pages cover all issues needed to protect a landlord? Not even close. At least a landlord is permitted to add an appendix to the Standard Lease to cover issues to protect the landlord. The appendix cannot include any illegal terms.

There are appendixes a landlord can purchase to add to the Standard Lease. I highly recommend that landlords add an appendix with additional terms.

Be Prepared for the Unexpected Before the Small Claims Court

There are many types of witnesses. At one recent trial I had before the Toronto Small Claims Court I had the opposing paralegal seek to have a witness declared as “an expert.” In another case before the small claims court Ontario

There are many types of witnesses. At one recent trial I had before the Toronto Small Claims Court I had the opposing paralegal seek to have a witness declared as “an expert.” In another case before the small claims court Ontario I had the opposing representative seek to declare a witness as a “hostile witness” or “an adverse witness.”

In both cases I was given no advance notice that these requests would be made. If you were self-represented, would know how to respond? Would you have consented or opposed these requests?

This week I was retained shortly after settlement conference by a party who had learned at the settlement conference hearing that a Defendant’s Claim had been issued against them. They had already been noted in default. This means that they are prevented from filing a defence without a judge’s order or the consent of the opposing side. They hired me to take the necessary steps to set aside the noting in default and allow them to file a Defence.

“Did you ask the judge at the settlement conference for an order allowing you to file a late defence?” I asked the client. The client responded by saying “The judge never said I could do that.”

It is not the judge’s job to give you legal advice or explain the Small Claims Court Rules. Had this client known a settlement conference judge has the power to make a variety of orders they could have saved money.

My point today is that any number of things can happen during Small Claims Court proceedings that you will not expect and will probably not know how best to respond to protect your interests.

You need an experienced licensed paralegal ontario representing you at all stages of an case; someone with a solid knowledge of the Small Claims Court Rules, Courts of Justice Act and the rules of evidence. We can help you.

What does it take to win at a small claims court trial?

As someone who has represented at probably more than a thousand small claims trials at the Toronto Small Claims Court and other small claims court ontario, I can tell you preparation is the most important thing.

What does it take to win at a small claims court trial?

As someone who has represented at probably more than a thousand small claims trials at the Toronto Small Claims Court and other small claims court ontario, I can tell you preparation is the most important thing.

Other important aspects are making sure you have all the witnesses you need, and documents necessary to prove your case. Make sure the evidence comes out through your witnesses in a logical way that the judge can follow.

Preparation starts with the writing of the Plaintiff’s Claim or Defence. You will be limited to the facts you have plead in these documents.

The most important hearing to get ready for trial is the settlement conference. You read that correctly. Settlement Conference is the most important hearing to obtain necessary orders to get ready for trial, to obtain information from the opposing side that will assist you in trial preparation.

You cannot tell the trial judge what was said at settlement conference. That does not stop you from using information you heard to help you prepare for trial.

You also need to know and be able to present to the judge what the law is. I know it is small claims court and you think the judge knows the law. You are thinking I don’t need to present statute or case law to the judge.

Maybe your case involves an area of the law the judge is very familiar with. Then again, maybe the judge isn’t familiar with the law regarding your case. The judge may not be aware of case law that helps your case. Presenting law to the judge during closing submissions can only help your case.

What else do you need to know? Some knowledge of evidence law is helpful. This is especially so if expert reports or expert witnesses are to be presented to the court. Knowledge of the small claims court rules also helps.

You will need to prepare for asking your witnesses questions. These questions cannot be leading.

You will need to prepare to ask the opposing witnesses questions. This is called cross-examination. Many cases are won or lost on the strength and experience of the person asking the cross-examination questions.

If you do not have the time, patience, or knowledge to prepare for trial I urge you to hire a paralegal ontario or a lawyer.

Our paralegal firm, Civil Litigations has 22 years experience we can help you. Our phone number is 416-229-1479. Our website is CivilParalegal.com

How to evict a tenant in Ontario for “Own Use”

In Ontario, an N12 form is given to a tenant when the landlord or the landlord’s spouse or child requires the rental unit for their own full time residence for at least one year.

In Ontario, an N12 form is given to a tenant when the landlord or the landlord’s spouse or child requires the rental unit for their own full time residence for at least one year.

The form is also used when a purchaser or the purchaser’s immediate family member requires the rental unit for their own use. This blog focuses on a landlord requiring the unit for their own use. Although some requirements are the same for a purchasers own use application, some are not.

The termination date on the N12 must be at least 60 days after the tenant is served. The termination date set out in the notice must be the last date of the rental period or the last date of a lease term. Self-represented landlords often make a mistake when choosing the date. This is especially so when rent is not payable on the first of the month.

Once the N12 is served the landlord can immediately apply to the Landlord and Tenant Board for an eviction order. An L2 application is used.

These “own use” applications are often hotly contested. This can be the start of a long heated battle.

It is in both the landlord’s and tenant’s best interest to hire an experienced licensed paralegal ontario to represent them.

Do not ask landlord tenant board ontario staff for legal advice. They are trained in forms and procedures. They are not trained in the law.

The person who plans to move in must swear out an affidavit stating that they, “in good faith” intend to reside in the apartment for at least a year. Self-represented landlords often fill out the affidavit incorrectly.

The landlord must pay the tenant the equivalent of one months’ rent as compensation for bringing this application.  This must be paid before the termination date set out in the N12 notice. The landlord must prove this money was paid.

Should the landlord or the family member who plans to move in testify at the hearing? Can an eviction be delayed or denied even if the landlord proves they “in good faith” require the apartment for their own use? Is it now easier for a former tenant to sue their former landlord if they moved out due to receiving an N12 notice which was given in bad faith?

You need an expert to represent and guide you through the process. At Civil Litigations we are experts who have been in business since 1996. Call us at 416-229-1479 or use the appointment tab on our website,  www.CivilParalegal.com to book a 30 minute free consultation

Suing a Contractor is often Complicated

It is that that time of the year when our paralegal office gets calls from home owners looking to sue contractors who have done work around their home. The small claims court Ontario deals with many of these types of cases.

It is that that time of the year when our paralegal office gets calls from home owners looking to sue contractors who have done work around their home. The small claims court Ontario deals with many of these types of cases. Often these cases start out easy, and become complicated before reaching trial.

There are many variations to this type of claim. Sometimes there is a written contract setting out exactly what the contractor is to do, and how they are to be paid. Too often though, there is poorly written contract or no contract at all. Sometimes there are just e-mail exchanges giving a vague idea what the contractor is hired to do.

If you want the contractor to do things that were not part of the original signed contract, be sure to sign “add on agreements,” which clearly state what the extra work to be done is and how much it will cost.

Contractors, unlike paralegals and lawyers, don’t have a tough regulator like the Law Society of Ontario. Ontario paralegals are required us to put all client money in a trust account until work is completed and an invoice issued and delivered.

Disputes that I see in the Toronto small claims court, Richmond Hill small claims court, Brampton small claims courts court, and others include the contractor just abandoning the job part way through. This is especially the case when the contractor is paid a large portion of the job upfront.

Did the contract do the work negligently? Do you need another contractor to redo the work? Before you hire another contractor to redo work, obtain legal advice immediately. You may need an independent expert’s report. Paying another contractor to fix the negligent work your original contractor may forever destroy evidence necessary to properly prove your case in court.

At trial you need an experienced paralegal ontario. Some of the issues I see at trials involving a contractor include: whether the proper party or parties have been to sued, disputes about the work the contractor was hired to do, what was the contract price?, the amount paid, what work was done and what was not done, whether certain work was done negligently, the cost to redo work, were there ad ons necessary or agreed to,  a Defendant’s Claim (if any) and minimizing damages.

We have been representing home owners in small claims court since 1996. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at www.CivilParalegal.com

The Art of Cross-Examination for Small Claims Ontario and the Landlord Tenant Board Ontario

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

Your ability or that of your Ontario paralegal to ask questions of the opposing side’s witnesses can be the difference between winning or losing your case.

Cross-examination is a tool that is only as good as the person wielding it. An experienced paralegal knows how to ask questions to obtain the answers helpful to their client.

The self-represented party who has little or no experience in court often does not know about the amount of preparation necessary to be good cross-examiner. They don’t know the skills necessary to elicit the answers needed.

Before we go further you must know the purposes of cross-examination. This tool is used to poke holes in the evidence of the opposing side’s witness. It is also used to gain admissions from the opposing side’s witnesses that strengthen your case.

Cross-examination is used in small claims court Ontario and the landlord and tenant board. It is also used in other courts and tribunals.

Do you need to ask questions of every opposing witness? No. The less seasoned legal representatives may feel pressure to ask questions of every witness. There is no need to cross-examine a witness that has not said anything to harm your case, and who has nothing to offer that would help your case.

Another novice problem I see is asking one too many questions. Though a carefully planned series of questions you may get a witness to admit an important fact. All can be lost if you ask one more question then necessary which allows the witness to say something that destroys your case.

How do you get the opposing side’s witnesses to admit facts favorable to your case? How do you ask questions based on documents? How do you use cross-examination to show a witness is not credible and should not be believed by the court or tribunal? How do you deal with a difficult to control witness?
There are many goods books that you can read to find answers to these questions. I recommend “Cross-Examination: Science and Techniques, 3rd edition.” However, there is no substitute for experience.

If you lack experience in cross-examining witnesses, we can help. Contact Marshall Yarmus (phone 416-229-1479 www.Civilparalegal.com) to represent you at your small claims court trial or landlord and tenant board hearing.

How can an Ontario paralegal help you?

At Civil Litigations we are experts at small claims court representation and landlord and tenant board representation. We choose to focus only on these areas of the law as we have since 1996.

At Civil Litigations we are experts at small claims court representation and landlord and tenant board representation. We choose to focus only on these areas of the law as we have since 1996.

Paralegal Ontario Canada are licensed and regulated by the Law Society of Ontario. It was formerly known as the Law Society of Upper Canada.

The paralegal rules of conduct and the by-laws are mirror images of the strict rules which lawyers operate under.

However, a lawyer in Ontario can provide virtually any legal service a client wants. Paralegals have a very limited scope of services we can offer.

The services Ontario paralegals are permitted to offer include:

1. Representing in the small claims court, provincial offences court, criminal court (for cases where the maximum penalty is six months in jail.)

2. Representing at provincial tribunals, boards and commissions such as the landlord and tenant board, human rights tribunal of Ontario, the labour board, social assistance tribunal, workplace safety and insurance board, the license appeal tribunal.

3. Representing  at federal tribunals, boards, and commissions such as the social security tribunal, transportation appeal tribunal of Canada, national parole board, and the immigration and refugee board.

4.Preparing all paperwork and representing an individual with Statutory Accident Benefits claim. These are claims against your own insurance company related to minor injuries resulting from a motor vehicle accident.

We cannot do everything regarding the above courts, tribunals, and boards. We can only deal with a case where these is a hearing to take place, or a prospective hearing.

Note I am not using the confusing language the Law Society of Ontario uses in their by-law 4, section 6(1)(2). You can find the by-law on the Law Society’s website. If there is a discrepancy between my plain language explanation and the language of the by-law, the by-law prevails.

In the courts and tribunal listed above a paralegal may only:

1  Determine what forms need to be completed, fill out the forms, and appear as a representative at any hearing.

2. Provide legal advise on a case that has been filed, is about to be filed, or where a party is contemplating initiating or defending a case before one of these courts or tribunals.

  1. Negotiate a party’s interest in a proceeding.It is important to note that a paralegal may only prepare forms to be used in a hearing before a court or tribunal.There are immigration documents that can be completed and filed. These documents will not necessarily lead to a hearing before the immigration and refugee board. A paralegal is not permitted to prepare these documents. A paralegal may appear as a representative before the immigration and refugee board, but no prepare certain documents for filing.Ontario now has a standardized lease that that must be used for any new residential tenancies entered into after April 30, 2018. A landlord is permitted to attach an appendix with additional conditions to the standard lease.The lease may someday be used in a hearing before the Landlord and Tenant Board. A paralegal is not permitted to prepare the lease, or the appendix with additional terms, or advise what additional terms should be included in the lease as this will not necessarily lead to a hearing.I have attempted to make a confusing by-law understandable.

If you lack experience with small claims court Ontario  or the landlord tenant board Ontario we can help. Contact Marshall Yarmus (phone 416-229-1479 https://civilparalegal.com) to represent you at in your small claims court case or landlord and tenant board matter.

Look to another paralegal firm to help you in any matter which a paralegal is permitted to provide to the public.

If hire a paralegal will I get the costs I pay to you awarded to me by the small claims court Ontario?

Costs are usually awarded to the successful party at a trial. Cost awards are in the discretion of the judge, and are subject to the Courts of Justice Act and the Small Claims Court Rules.
The winning party at a trial who is represented by a paralegal

This office receives this question almost daily from litigants at the Toronto Small Claims Court, Richmond Hill Small Claims Court and other courts.

Costs are usually awarded to the successful party at a trial. Cost awards are in the discretion of the judge, and are subject to the Courts of Justice Act and the Small Claims Court Rules.
The winning party at a trial who is represented by a paralegal, a lawyer, or a student-at-law, may be entitled to a representation fee intended to partially cover their legal fees.

In most cases the representation fee is capped at 15% of the amount of the Plaintiff’s Claim or the Defendant’s Claim.

Costs are always in the discretion of the judge to award or not under all the circumstances. The Courts of Justice Act, the Small Claims Court Rules, and case law provide judges with guidance on the costs to be awarded. There is no minimum costs that must be awarded.

The general rule is that an award of costs at trial in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed. That 15% of the amount of the claim cost award contemplated in the Courts of Justice Act and the Small Claims Court Rules can be increased if the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behavior in the proceeding.

Offers to settle properly made under rule 14.07 may attract double cost consequences of failure to accept.
If you hire a paralegal Ontario to represent you at trial where the amount claimed is $25,000.00, you may be entitled to a representation fee of 15% of $25,000.00 being $3,750.00.

If you make an offer to settle in accordance with Rule 14.07 and are successful at trial that $3,750.00 may be doubled to $7,500.00 in costs awarded in your favour.

Contrast that with costs awarded to a self-represented party at trial who may be awarded a limit of $500.00 for inconvenience and expense.

The winning party at a trial also usually gets their allowable out of pocket disbursements added to the judgment. This includes court fees, process serving capped at $60.00 per person served, and sometimes travel expenses, postage, and photocopies.

If you have paid a paralegal or a lawyer to prepare your Plaintiff’s Claim or Defence or Defendant’s Claim you may be awarded  a $100.00 preparation fee.

If you are requesting costs you will need to cite the specific act, rule, or the case law that allows for it.
This is meant to be general information on cost awards that the small claims court may award. This is not intended to be legal advice.
If you need help with costs awards or anything else dealing with a small claims Ontario proceeding, we would be honored to help you. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at www.CivilParalegal.com

How much does it cost to hire a paralegal to evict a tenant?

What is your legal reason to evict the tenant? A tenancy that is governed by the Ontario Residential Tenancies Act can only end if the tenant decides to vacate or the landlord has a legal reason to evict the tenant.

Our office hears that question a lot. The answer is always “It depends.”
What is your legal reason to evict the tenant? A tenancy that is governed by the Ontario Residential Tenancies Act can only end if the tenant decides to vacate or the landlord has a legal reason to evict the tenant. The landlord must obtain an eviction order from the Landlord and Tenant Board, and file the order with the sheriff.

The legal reasons used most often by landlords to evict a tenant include;

  • the tenant is seriously interfering with the reasonable enjoyment of another tenant or is interfering the landlords lawful rights and privileges,
  • the tenant has committed an illegal act on the premises
  • Non-payment of rent
  • the tenant has damaged the property
  • the tenant has seriously impaired the safety of another person
  • the tenant is persistently late in paying rent
  • the landlord or an immediate member of the landlord’s family in good faith plans to move into the apartment for at least a year,
  • the purchaser of a property or a member of their immediate family plans to move in
  • The landlord needs to make major repairs to the unit which requires vacant possession and a building permit

Non-payment of rent accounts for two thirds of all the applications filed with the landlord tenant board Ontario.

Some of the above reasons for bringing an application to the board can be done at any time. Some can only be done at the end of the rental period. If there is a written lease term still in effect some of these options only become available at the end of the lease period.
Every landlord’s eviction starts with an initial notice give to the tenant. You must use the official notices from the Landlord and Tenant Board. There are different notices for every possible eviction application.

The notice must be filled out properly and completely. Many self represented landlords make errors filing out these notices.

Errors such as failing to provide a unit number, filling in dates incorrectly, using the wrong termination date, and not providing enough details of the problem, can deem the notice void. No eviction can flow from an initial notice that the board member finds is void.

I recommend that every landlord, unless they are experienced preparing these notices, hire a paralegal Ontario to prepare the notices.

If you make a mistake completing the notice and the application is dismissed as a result, it
may delay eviction by months. That could cost you thousands of dollars in unpaid rent, damages to the apartment, or delay the closing of a sale as the new purchaser cannot move in as planned.

Every Ontario paralegal is required to carry insurance to protect you. If a paralegal make a mistake their insurance covers them for up one million dollars per claim.

How to evict a tenant in Ontario can be difficult. Without a properly trained Ontario paralegal on your side you may learn some expensive and time consuming lessons.

Your time is valuable. In certain types of evictions your attendance at the hearing is not necessary if you have a paralegal in your side.

Need help to evict a tenant? Our firm, Civil Litigations, would be happy to represent you. Contact Marshall Yarmus at 416-229-1479 or visit our website at www.CivilParalegal.com

Small Claims Court Ontario Motion to Set-Aside Default Judgment

The most common orders sought at a motion are: to set aside a default judgment, set aside noting in default, terminate enforcement action, file a defence, strike out a claim or defence that has no merit, to extend a deadline to do something, to file a Defendant’s Claim.

A motion is a special hearing in small claims court where any party can request a specific order.

The most common orders sought at a motion are: to set aside a default judgment, set aside noting in default, terminate enforcement action, file a defence, strike out a claim or defence that has no merit, to extend a deadline to do something, to file a Defendant’s Claim.

Every motion starts with the party requesting the order to fill out the Notice of Motion and Supporting Affidavit form. This is issued by the court. You will be given a date and time for the hearing to take place.

The party who is requesting the order is called the Moving Party.

This Notice of Motion and Supporting Affidavit must be served on every Plaintiff and Defendant in the action. This includes serving it on a party that has been noted in default. That means it must be served on a Defendant even if they did not file a Defence and the Plaintiff had filed documents with the court asked that the Defendant be noted in default.
The party that is served with the Notice of Motion is called the Responding Party. They may serve and file an Affidavit in Response to Motion.

If an Affidavit in Response to Motion is served and filed, the person who initially brought the motion called the Moving Party, has one final opportunity to provide an affidavit replying to the Affidavit in Response. This is called a Supplementary Affidavit.

The facts that the judge will consider at a Motion Hearing are limited to the affidavit evidence contained in the Moving Party’s Notice of Motion and Supporting Affidavit , the Responding Party’s Affidavit in Response to Motion, and Moving party’s Supplementary Affidavit.

The judge will also consider the law, including any rules of the court and case law provided by the parties or their paralegal Ontario.

Check the court’s rules for information on how a motion is to be served, when the Notice of Motion and Supporting Affidavit, Affidavit in Response, and Supplementary Affidavit  must be served and filed with the court.

Let’s address the most common type of motion the court hears: a motion to set aside default judgment.

Small Claims Court Rule 11.06 deals with a motion to set aside a default judgment. The rule states:

“Setting Aside Noting of Default by Court on Motion

11.06 The court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgment, on such terms as are just, if the party makes a motion to set aside and the court is satisfied that,

(a) the party has a meritorious defence and a reasonable explanation for the default; and

(b) the motion is made as soon as is reasonably possible in all the circumstances.  O. Reg. 78/06, s. 24”.

This blog will not be addressing the huge amounts of case law regarding the tests to set aside default judgment. If you search case law you will find cases that discuss:

  • how rigidly the judge should apply the three part test
  • there are other tests not mentioned in the Small Claims Court Rules that a judge can consider
  • what is considered a meritorious defence
  • can the court consider a lower standard  then a meritorious defence, and
  • situations where the court must ignore the tests and automatically set-aside the default judgment

Do your case law research or hire a paralegal Ontario to represent you.

Note that Small Claims Court Rule 11.06 states that a default judgment may be set aside a default judgment “on such terms as are just.”

What does that mean? The court could order a Defendant to pay costs the Plaintiff to partially compensate the Plaintiff for their inconvenience and expense.

The “such terms as are just,” could also mean the judge will order the Defendant to be pay money into court to be held as security pending the outcome of the trial or settlement.

A judge can also order costs of the motion itself. A Plaintiff may be ordered to pay costs of the motion to the Defendant for opposing a motion that should not have been opposed.

The philosophy of the small claims Ontario is that of Natural Justice. Every case should be tried on its merits, whenever possible. The courts want cases decided based on hearing the evidence of every party.

This means that the overwhelming majority of motions to set aside default judgment will be granted. Often the only issue for the court to decide is the “such terms as are just.”

The court will decide what, if any, order to make regarding costs or security to be paid into court.

Knowing that most default judgments will be set aside I take steps my competitors don’t to minimize the likelihood of the Defendant ever filing a motion to set aside.

I rarely appear in motions court for my Plaintiff clients who have hired me to do everything from the start.

See details on my website.

My philosophy is simple. Why waste my client’s money and time. Knowing that motions to set aside will be granted, I don’t know why some representatives rush to the courthouse to sign default judgment.
If you require representation at a motion, or any other small claims court proceeding, contact Marshall Yarmus of Civil Litigations. www.CivilParalegal.com or call 416-229-1479

Sample Letter to new Minister of Housing Steve Clark

Another paralegal Ontario has posted a “sample letter” recommending that landlords who are unsatisfied with the Residential Tenancies Act and the landlord tenant board Ontario write to the new PC Minister of Housing, Steve Clark using his template.

Another paralegal Ontario has posted a “sample letter” recommending that landlords who are unsatisfied with the Residential Tenancies Act and the landlord tenant board Ontario write to the new PC Minister of Housing, Steve Clark using his template.

I share many of the views of Harry Fine. Here is the link to his blog which you can copy and paste:

http://landlord-law-ontario.blogspot.com/2018/07/sample-letter-to-new-minister-of.html

Eviction for Non-Payment of Rent

Many landlords decide to represent themselves on a non-payment of rent applications at the Landlord Tenant Board Ontario (LTB) as they believe it is easy. A lot of the time it is easy. However, it can become incredibly complex.

Many landlords decide to represent themselves on a non-payment of rent applications at the Landlord Tenant Board Ontario (LTB) as they believe it is easy. A lot of the time it is easy. However, it can become incredibly complex. Most of the time you will have no advanced notice of issues the tenant will raise to make your non-payment of rent application complex.

An L1 application is filed at the LTB to obtain a judgment and evict a tenant. This is preceded by a N4 notice served on the tenant.

If the N4 notice contains certain errors the board member may decline to give you an eviction order. Errors such as a missing apt number, improper termination date, math errors, and failing to properly state the start and end of a month or other term may mean no eviction order.

Section 82 of the RTA allows a tenant to raise any issue on a non-payment of application which they could raise if they brought their own application. The kicker is they are not required to give the landlord any advance notice of their intention to raise these issues.

Issues which a tenant can raise without notice to you include: alleging the landlord collected an illegal deposit or fee, harassment, illegal entry, interfering with the tenant’s reasonable enjoyment, and maintenance issues.

A skilled paralegal Ontario may be able to deal with these issues without notice. Self-represented landlords usually don’t have the skills, knowledge of the statue and case law, or the understanding of the process to properly oppose the tenant’s section 82 issues.

Most self-represented landlords are unaware or don’t take into account the effect of section 83 of the RTA seriously.

Section 83 requires the board to consider all the circumstances in deciding whether it would be unfair to delay or deny an eviction

Even if the landlord proves that rent is owed the board still has the power to delay or deny an eviction. If the tenant proves certain circumstances exist the board must deny an eviction.

At an L1 non-payment of rent application the tenant can try to work out a deal with the landlord to enter into a payment plan to pay off the rent owing.

Many self-represented landlords are unaware that if they refuse to enter into a reasonable payment plan, the board may impose a payment plan on the landlord.

Paralegals know how to properly deal with these situations. Many self-represented landlords do not know what to say to the board member regarding these issues. How to evict a tenant in Ontario is not as easy as some landlords believe.

Also see our blog on Pay and Stay Orders at https://www.civilparalegal.com/how-does-a-standard-pay-and-stay-order-work/

If you need representation on a non-payment of rent application, contact Marshall Yarmus at Civil Litigations at www.CivilParalegal.com or call 416-229-1479

Do I need to proceed to trial if the Defence has no chance at success?

This motion is only to be used to strike out or dismiss a Plaintiff’s Claim, Defendant’s Claim or a Defence, where it is plain and obvious that the claim or defence has no chance at success at trial.

One of my recent blogs discussed small claims court Ontario motions in general. Let’s discuss today Rules of the Small Claims Court Rule 12.02 motion.

This motion is only to be used to strike out or dismiss a Plaintiff’s Claim, Defendant’s Claim or a Defence, where it is plain and obvious that the claim or defence has no chance at success at trial.

Rule 12.02 states:

“12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.  O. Reg. 78/06, s. 26.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

  1. In the case of a claim, order that the action be stayed or dismissed.
  2. In the case of a defence, strike out the defence and grant judgment.

2.1 In the case of a motion, order that the motion be stayed or dismissed.

  1. Impose such terms as are just. O. Reg. 78/06, s. 26; Reg. 44/14, s. 11 (2).”

One way the courts determine whether it is plain and obvious that a claim or defence cannot succeed at trial is to look at a Plaintiff’s Claim for example and ask themselves, if I accept everything written in the Plaintiff’s Claim as true and proven, is it possible for the Plaintiff to succeed?

There is some good case law to rely on if bringing this type of motion. Have your Paralegal Ontario look up the case law and rely on it at the hearing.

If a claim or a defence is struck out/dismissed at this motion this can be considered a final order of the court. Normally, the limit on costs a motion judge can award is minimal.

However, if a Rule 12.02 motion order is a final determination of the case, the court has the power to order substantially more costs. See my blog on costs http://www.civilparalegal.com/if-hire-a-paralegal-will-i-get-the-costs-i-pay-to-you-awarded-to-me-by-the-small-claims-court-ontario/ or consult with your paralegal.

We should see more of these motions at the Toronto Small Claims Court, Richmond Hill Small Claims Court, and the Brampton Small Claims Court in the future.

If you need representation on a Rule 12.02 motion or any other small claims court matter contact Marshall Yarmus of Civil Litigations at 416-229-1479 or www.CivilParalegal.com

What are your rights when a business makes false, misleading, deceptive or unconscionable representations to you?

Let’s examine the Consumer Protection Act, 2002. This Ontario law is often plead in either the Plaintiff’s Claim or Defence in small claims court Ontario.

Let’s examine the Consumer Protection Act, 2002. This Ontario law is often plead in either the Plaintiff’s Claim or Defence in small claims court Ontario.

The Consumer Protection Act, 2002 has many parts that deal with many types of consumer transactions. This article will only deal with false, misleading, deceptive representations, and unconscionable representations.

The definition of a consumer in the act is:  “An individual acting for personal, family or household purposes and does not include a person who is acting for business purposes.”

The act prohibits false, misleading or deceptive representations, and unconscionable representations.

Sections 14 and 15 of the Consumer Protection Act, 2002 outline these prohibited representations. It states:

“14. (2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

  1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.
  2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.
  3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.
  4. A representation that the goods are new, or unused, if they are not or are reconditioned or reclaimed, but the reasonable use of goods to enable the person to service, prepare, test and deliver the goods does not result in the goods being deemed to be used for the purposes of this paragraph.
  5. A representation that the goods have been used to an extent that is materially different from the fact.
  6. A representation that the goods or services are available for a reason that does not exist.
  7. A representation that the goods or services have been supplied in accordance with a previous representation, if they have not.
  8. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.
  9. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.
  10. A representation that a service, part, replacement or repair is needed or advisable, if it is not.
  11. A representation that a specific price advantage exists, if it does not.
  12. A representation that misrepresents the authority of a salesperson, representative, employee or agent to negotiate the final terms of the agreement.
  13. A representation that the transaction involves or does not involve rights, remedies or obligations if the representation is false, misleading or deceptive.
  14. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.
  15. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.
  16. A representation that misrepresents the purpose of any charge or proposed charge.
  17. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.  2002, c. 30, Sched. A, s. 14 (2).
Unconscionable representation

15 (2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer;

(e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.  2002, c. 30, Sched. A, s. 15 (2).”

If a representation is made that prohibited under sections 14 or 15, the consumer may terminate or rescind the transaction within one year. Termination of the transaction can be made in any form. I recommend sending the notice in writing by registered mail.
A consumer can sue for general damages as a result of the improper representation as well punitive damages and aggravated damages.

Paralegals are trained to recognize when your consumer rights have been violated. Make sure to hire an experienced paralegal Ontario to represent you in Toronto Small Claims, Richmond Hill Small Claims, Brampton Small Claims and other courts around Ontario.

If you need representation in small claims court dealing with the Consumer Protection Act, 2002, please contact Marshall Yarmus at 416-229-1479 or visit www.CivilParalegal.com

A Settlement Conference is the most important hearing in a small claims court action

In my opinion the Settlement Conference is the most important hearing in a small claims court Ontario. This statement applies whether you settle or not.

In my opinion the Settlement Conference is the most important hearing in a small claims court Ontario. This statement applies whether you settle or not.

The Rules of the Small Claims Court outline the many purposes to a settlement conference. They include:

“13.03 (1) The purposes of a settlement conference are,

(a) to resolve or narrow the issues in the action;

(b) to expedite the disposition of the action;

(c) to encourage settlement of the action;

(d) to assist the parties in effective preparation for trial; and

(e) to provide full disclosure between the parties of the relevant facts and evidence.  O. Reg. 78/06, s. 27.”

This is the hearing where many self-represented litigants learn that if the case goes to trial it will take hours, a day, or multiple days for the trial to be heard. It is best to hire a paralegal Ontario to deal with your case.

Reasons why a settlement conference is the most important hearing in a small claims court case:

You can request that a judge at a settlement conference make many different orders. A judge is permitted to make orders including: adding or deleting parties, staying the action, amending or striking out a claim or defense, staying or dismissing a claim, directing production of documents, changing the place of trial, directing an additional settlement conference, and ordering costs. (See Small Claims Court Rules 13.05(1)(2))

The settlement conference is the place you and your legal representative can learn more about your opponent’s case. Discussions at a settlement conference usually include specifics of matters only touched upon in the pleadings. A good legal representative will use what they hear at a settlement conference to help them in trial preparation.

Listen to the opposing side. Try to see the case from their point of view. A good legal representative tries to see the case from their opponent’s point of view. This helps them better assess the strengths and weaknesses of their client’s case.

The judge at a settlement conference may make suggestions to both sides regarding what they can do to better prepare for trial. (See Small Claims Court Rule 13.03(1)(d))

This is the only hearing where you have a chance early in a small claims court proceeding to try to settle the case, before you spend a lot of time and money preparing for trial.

The settlement conference judge may give an opinion on who they think will be successful at trial, and why. Although, there will be a different judge if the matter proceeds to trial, it is valuable to hear a judge’s opinion.

Can the settlement conference judge make a final and binding decision on who wins and looses without a formal trial? Yes – provided Small Claims Court Rule 13.05(4) applies. If the amount of the claim(s) is less than the appealable limit (currently $2,500.00), and prior to the commencement of the settlement conference all the parties sign a consent (form 13B) indicating they wish to obtain a final determination of the matter at the settlement conference if a settlement cannot be reached.

Most Defendants who settle the case pay the agreed upon settlement amount. In most cases where a judge decides a case at trial, the Defendant does not voluntarily make payment to the Plaintiff. The Plaintiff who wins at trial often has to spend more money and time enforcing their judgment. It has been said that sometimes the worst thing that can happen for a Plaintiff is they go to trial and obtain a judgment.

You may win at trial. The opposing side may appeal. Although appeals of Small Claims Court decisions are not common, they do happen. An appeal is outside the scope of services a paralegal is trained and permitted to represent. It can be very expensive to hire a lawyer to fight an appeal.

Trials are very stressful. A good settlement allows both parties to walk away a little unhappy.

You may not have the evidence necessary to be successful at trial. Though you may have a strong case, you may be missing the important witness, photo, receipt, estimate, or an expert’s report to be successful at trial.

You may need an independent expert’s report or an expert witness at trial. They are not cheap. If you are self-represented you may not even be aware you need an expert to be successful at trial.

It is difficult to get witnesses to voluntarily attend trial. People may say they will be witnesses at trial now, but their mind might change closer to a trial date. Their are drawbacks to issuing summons to witnesses.

Need representation at Settlement Conference or any stage of a small claims court proceeding, Hire Marshall Yarmus, of Civil Litigations. He is an expert at small claims court proceedings. He is seen most often at Toronto Small Claims Court, Richmond Hill Small Claims Court, and Brampton Small Claims Court. Call 416-229-1479 or visit our website at www.CivilParalegal.com

The Elusive Representation Fee at the Landlord Tenant Board Ontario

If you are represented by a paralegal Ontario at the Landlord and Tenant Board, you could be awarded a representation under certain circumstances. This representation fee is capped at $100.00 per hour, and $700.00 for a whole proceeding.

If you are represented by a paralegal Ontario at the Landlord and Tenant Board, you could be awarded a representation under certain circumstances. This representation fee is capped at $100.00 per hour, and $700.00 for a whole proceeding.

In most cases, the only costs allowed will be the application fee. The guidelines give the board a wide ranging reasons to award costs for representation fees.

Cost orders in the Landlord and Tenant Board are governed by Guideline #3, and the Rule 27, as well sections 204(2) to (4) of the Residential Tenancies Act, 2006.

Section 204(2)(3)(4) of the RTA state:

(2) The Board may order a party to an application to pay the costs of another party.
(3)  The Board may order that its costs of a proceeding be paid by a party or a paid agent or counsel to a party.
(4)  The amount of an order for costs shall be determined in accordance with the Rules

However, the board should not use its power to order costs in a way which would discourage landlords and tenants from exercising their statutory rights.

A landlord or a tenant can be awarded costs for representation/preparation fees and other out-of-pocket expenses. These representation costs can be awarded for unreasonable conduct of a party. The costs may be ordered to be paid by the party or their legal representative.

Some examples of unreasonable conduct that could attract a costs order include:

  1. Bringing a frivolous or vexatious application or motion;
  2. Initiating an application or any procedure in bad faith;
  3. Taking unnecessary steps in a proceeding;
  4. Failing to take necessary steps, such as those required by the RTAor Rules;
  5. Any misconduct at the hearing or in the proceeding;
  6. Raising an issue which is irrelevant to the proceedings and continuing to pursue that issue after the Member has pointed out that it is irrelevant;
  7. Asking for adjournments or delays without justification;
  8. Failing to prepare adequately for the hearing;
  9. Acting contemptuously toward the Member or showing a lack of respect for the process or the Board;
  10. Failing to follow the directions of the Member or upsetting the orderly conduct of the hearing; and
  11. Maligning another party or unreasonably slurring the character of the other party.

Examples of failing to comply with the RTA or Rules would include the following situations:

Failing to follow a procedural order or direction such as an order to serve another party with a document

Serving another party in a way which was not appropriate;

Delaying the hearing by not taking actions required in the Rules.

If you need representation at the Landlord and Tenant Board, particularly at Toronto North, Toronto South or Toronto East locations, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or www.CivilParalegal.com

When to Use a Request to Review

“A review is not an appeal or an opportunity to change the way a case was presented. The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance.”

A Request to Review is used when a party to the action believes that either:

a) the board member made a serious error in the order.
b) a party was not able to reasonably participate in the hearing.

Landlord Tenant Board Ontario Rule 29 and Interpretation Guideline 8 deal with Requests to Review.
“A review is not an appeal or an opportunity to change the way a case was presented. The purpose of the review process is not to provide parties with an opportunity of presenting a better or different case than they did at first instance.”

A Request to Review must be filed within 30 days of the original order. If it is not filed on time, a party may request that the board extend the time to make the request.

If a Vice-Chair of the LTB believes upon reading the Request to Review that there may be a serious error or that a party was unable to participate in the hearing, they will order a hearing be scheduled.

If the Vice-Chair is not convinced that a serious error may have occurred or a party was not able to attend the hearing they will dismiss the request without a hearing.

At a review hearing the party who requested the review must first convince the member of the serious error or valid reason why they failed to attend the hearing.

If the requestor is unable to convince the member then the review will be dismissed without any rehearing of the case.

Many self-represented litigants fail to prepare to prove a serious error occurred. Therefore their application is dismissed at this preliminary state.

Some self-represented parties fail to understand that a hearing being scheduled is only the first step in review process.

A Request to Review should not be taken lightly. You should hire a paralegal Ontario to represent you.

Examples of serious errors are:

  • An error of jurisdiction. For example the order relies on the wrong section of the RTA or exceeds the LTB’s powers. This issue need not have been raised in the original hearing;
  • A procedural error which raises issues of natural justice;
  • An unreasonable finding of fact on a material issue which would potentially change the result of the order;
  • New evidence which was unavailable at the time of the hearing and which is potentially determinative of one or more central issues in dispute;
  • An error in law. The LTB will not exercise its discretion to review an order interpreting the RTA unless the interpretation conflicts with a binding decision of the Courts or is clearly wrong and unreasonable; and ,
  • An unreasonable exercise of discretion which results in an order outside the usual range of remedies or results and where there are no reasons explaining the result.

Some examples where LTB has found a party was “not reasonably able to participate” include:

  • Requestor was out the country, in hospital or in police custody when the notice of hearing was served and/or the hearing was held.
  • Notice of hearing and other documents were served on the wrong address or the wrong person, received late or not received at all.
  • Requestor was unable to attend or ask for an adjournment of the proceeding due to sudden illness, a family crisis, extreme weather or transportation problems.
  • Requestor was led to believe by the other party that there was no need to attend the proceeding or reasonably believed the issues had been settled.
  • Requestor or the requestor’s representative was at the LTB but provides a reasonable explanation why he or she was not present in the hearing room when the application was decided.

New Evidence

Parties are expected to make every effort to produce all relevant evidence in support of their positions in the original hearing. The review will be dismissed unless the LTB is satisfied the new evidence could not have been produced at the original hearing, is material to the issues in dispute and its consideration could change the result.

If you need representation at a Request to Review or any LTB matter contact Marshall Yarmus of Civil Litigations at 416-229-1479 or  http://www.civilparalegal.com/home_services/landlord-and-tenant-board/

civillitigations: evictionlandlord tenant boardCivil LitigationsLandlord and Tenant Boardlandlord tenant act OntarioMarshall YarmusOntario paralegal

What is the Limitation Period to sue in Small Claims Court?

Let’s focus on the Limitations Act, 2002. This act has many sections dealing with different types of claims from claims by minors and people who are not mentally competent to claims that have no limitation period

How long do I have to sue? The answer to that and most questions dealing with the law is….it depends.

There are two limitation acts in Ontario. They are the Limitations Act, 2002, and the Real Property Limitations Act.

Let’s focus on the Limitations Act, 2002. This act has many sections dealing with different types of claims from claims by minors and people who are not mentally competent to claims that have no limitation period

The basic limitation period is set out in section 4 of the Limitations Act, 2002. It states:

  1. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

Section 5(1)(2) sets out when a claim is discovered.
(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved..

In some cases pinpointing when the Plaintiff knew or when a reasonable person ought to have discovered a cause of action is complex.

A thorough review of relevant case law is required.

Other types of claims found in the Limitations Act, 2002 include claims regarding acknowledgement of liability. This is set out in section 13 of the act.

Section 13(1) and 13(10) state:

13 (1) If a person acknowledges liability in respect of a claim for payment of a liquidated sum, the recovery of personal property, the enforcement of a charge on personal property or relief from enforcement of a charge on personal property, the act or omission on which the claim is based shall be deemed to have taken place on the day on which the acknowledgment was made.”

“13 (10)  Subsections (1), (2), (3), (6) and (7) do not apply unless the acknowledgment is in writing and signed by the person making it or the person’s agent.
If a person acknowledges a debt in writing, the limitations clock stats over. Interestingly, there is a lot of case law concerning whether an email can be an acknowledgement in writing.

There are a number of types of actions that have no limitation period at all. One such action is the enforcement of a judgment.

Section 16(1)(b) states:

16 (1) There is no limitation period in respect of,

(b) a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court

That means a money judgment obtained after January 1, 2004 never expires. There are many other types of claims under section 16 that have no limitation period at all.

Section 19 has a schedule of fourth-six (46) different acts where the Limitations Act, 2002 does not apply. To find the limitation period for causes of action mentioned in section 19 you need to look to the specific acts and section numbers mentioned

Section19 includes certain sections of the Insurance Act, Corporations Act, Creditors’ Relief Act, 2010, Business Corporations Act, Business Practices Act, and the Reciprocal Enforcement of Judgments Act to name just a few.

I have talked about Rule 12.02 of the Rules of the Small Claims Court in another blog.

A motion can be brought under rule 12.02 in the small claims court Ontario to strike out a Plaintiff’s if, as a matter of law, it is plain and obvious the limitation period for the Plaintiff to have sued expired before the litigation commenced.

Determining the proper limitation period can be difficult. A mistake can be costly. If in doubt, hire a licensed paralegal Ontario for assistance. All Ontario licensed paralegals are required to carry errors and omissions insurance. If a paralegal makes a mistake that costs you the case, you can be assured you are protected.

Do you need help representation with a small claims court action? In the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit  https://www.civilparalegal.com/home_services/small-claims-court/ Put our 22 years of experience to work for you.

Crisis at the Landlord and Tenant Board (LTB)

A new Landlord and Tenant Board procedure effective September 17, 2018 is to have board staff process applications in the order they were received, regardless whether they were delivered in person, by fax, by mail or courier.

October 11, 2018

October 11, 2018
Caroline Mulroney
Attorney General
Ministry of the Attorney General
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON
M7A 2S9
caroline.mulroney@pc.ola.org

Steve Clark
Minister of Municipal Affairs and Housing
777 Bay Street, 17th Floor
Ministry of Municipal Affairs and Housing
Toronto
ON
M5G 2E5
steve.clark@pc.ola.org

Doug Ford
Premier and Minister of Intergovernmental Affairs
Room 281
Legislative Building, Queen’s Park
Premier’s Office
Toronto
ON
M7A 1A1
doug.ford@pc.ola.org

This letter focuses on the crisis currently at the Landlord and Tenant Board with a shortage of staff members to process applications, and a shortage of adjudicators to decide cases.

There are many problems with the Residential Tenancies Act. That will be the subject of another letter on another day.
A new Landlord and Tenant Board procedure effective September 17, 2018 is to have board staff process applications in the order they were received, regardless whether they were delivered in person, by fax, by mail or courier.
This new measure is a direct result of a shortage of board staff.
I have a combined L1/L2 application which cannot be uploaded online. It was faxed to the Toronto North board location on September 28, 2018. I am told by an email from the board that the applications received that day may be processed sometime this week.

There is also and just as important a severe shortage of adjudicators who are also known as board members. It is actually the Ministry of the Attorney General who renews board member appointments and appoints new board members.

Over the last several months many board members have either left the LTB for another position, some have had their appointment expire without being renewed, and one has died. There has not been any board adjudicators appointed as replacements.

Applications are brought to the Landlord and Tenant Board by both landlords and tenants. This is an access to justice issue for both landlords and tenants when one has to wait several months from when the application is processed until the hearing date.
Many small landlords are feeling financial pressures as they are unable to evict tenants who are not paying their rent in a timely manner. The purpose of the Landlord and Tenant Board is to adjudicate landlord and tenant disputes in a timely manner.

An October 6, 2018 North Bay Nugget article https://www.nugget.ca/news/local-news/no-adjudicators-for-landlord-tenant-board-disputes-resolved-over-the-phone advises that there are “no adjudicators from Bracebridge to Hudson Bay.” All in person hearings are being cancelled. All hearings will take place by telephone conference call.”….. “Wilson believes the 5 1/2 month wait time for a hearing will get longer, forcing landlords to take action on their own.”

A CBC article dated September 20, 2018, quotes a board spokesperson on the shortage of adjudicators. https://www.cbc.ca/news/canada/thunder-bay/landlord-tenant-board-adjudicators-1.4830467
“(A) board spokeswoman said via email that the board’s full complement of full-time adjudicators is 45; currently, there are 35 full-time adjudicators working.

Further, there are seven part-time adjudicators available, while the board would normally have eight to 10.

The shortage is affecting all regions of Ontario, and is due to recent resignations, the statement reads.”

We need solutions now. I urge you to immediately hire more staff members and appoint more adjudicators province wide.

Should you require more information, please contact me.

Yours truly,

Marshall Yarmus
Civil Litigations

c: Suze Morrison
NDP, Critic, Housing
Queen’s Park
Room 345
Main Legislative Building, Queen’s Park
Toronto
ON
M7A 1A5
SMorrison-QP@ndp.on.ca

Sara Singh
NDP Critic, Attorney General
Queen’s Park
Room 331
Main Legislative Building, Queen’s Park
Toronto
ON
M7A 1A8
SSingh-QP@ndp.on.ca

My MPP
Stan Cho (Willowdale)
111 Sheppard Avenue West
North York
ON
M2N 1M7
stan.cho@pc.ola.org

Eviction at the LTB for Landlord’s Own Use

At a minimum a contributing factor is the Wynne Government’s Rental Fairness Act which eliminated the landlord’s right to substantially increase the rent at the end of a lease on condos and other properties built after 1991.

There seems to be more of these applications being filed with the Ontario Landlord and Tenant Board lately.

At a minimum a contributing factor is the Wynne Government’s Rental Fairness Act which eliminated the landlord’s right to substantially increase the rent at the end of a lease on condos and other properties built after 1991.  The Renal Fairness Act also eliminated above guideline rent increases for higher electricity bills. The act failed to permit above guideline rent increases when condo maintenance fees increase substantially.

Good Faith Intention to Move In

The real question is are these landlords and purchaser bringing applications to evict as they genuinely in good faith plan to move in or have an immediate family member move in and live there for at least a year, or is it a just a no fault eviction method so the landlord can increase the rent to market rate for a new tenant moving in?

T5 Application 

Perhaps landlords and purchasers are unaware or willing to take the risk that a tenant will bring a T5 application later claiming the landlord or purchaser served them an N12 notice in bad faith and evicted then.

The law was changed to make it easier for a tenant to prove bad faith. The onus shifts to the landlord to prove the notice was not given in bad faith if the former tenant can prove the landlord did any of the following:

(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;

(d) demolishes the rental unit or the building containing the rental unit; or

(e) takes any step to convert the rental unit, or the building containing the rental unit, to use for a purpose other than residential premises.

Evictions for landlord’s own use or purchaser’s own use are governed by the Residential Tenancies Act, applicable case law, and Landlord and Tenant Board Interpretation Guideline #12.

Landlord’s Own Use and N12 Form

A landlord’s own use application starts with serving an N12 notice correctly and giving the proper amount of notice. If a notice is served by mail it is deemed served five days after mailing.

An L2 application can be filed with the LTB starting the day after service of the N12. It makes sense to issue the application immediately. The person who plans to move in must swear out an affidavit that they in good faith require the property for their own use and plan to live there for at least a year.

Tenants often dispute the landlord or purchaser’s good faith intention. Therefore, I request from my clients the person who plans to move in attend the hearing and testify.

The test of good faith is whether the Landlord has a genuine intention to occupy the rental unit for his own use (Salter v Beljinac 2001 CanLII 40231 (ON SCDC), [2001] O.J. No. 2792 Div Ct)
A landlord who is bringing this type of application is required to pay the tenant the equivalent of one month’s rent as compensation for bringing this application. The compensation must be paid before the termination date set out in the N12, and before the hearing, or the board will not grant an eviction order.

A purchaser bringing an own use application is not required to pay compensation.

A purchaser must at a minimum produce a valid Agreement of Purchase and Sale at the hearing.

In file TNL-03124-18, http://canlii.ca/t/hsp9n the board refused to grant an eviction when the compensation was paid after the termination date.  This decision was upheld on review.
Another change that came into effect in 2017, is that no longer can a corporation with a single shareholder bring a landlord’s own use application.

Relief from Eviction

The tenant may also seek relief from eviction under section 83 of the Residential Tenancies Act.

Section 83(1) requires the board on every eviction application to decide based on all the circumstances of the parties whether it would be fair to delay or deny an eviction.

Section 83(3) makes it mandatory for the board to refuse an eviction if the tenant proves any of the following:

a)the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Both landlords and tenants risk a lot in asking the board adjudicator also called a member to make a decision.

Mediation services are available at the board if both parties are willing to come to a compromise such as an agreed extension of the time before the tenant has to vacate, or the landlord paying the tenant more money than the landlord is required to pay as compensation to bring this application.

With so much on the line for both landlords and tenants in this process, it would be wise to obtain the representation of an experienced licensed paralegal to represent you.

If you are in Toronto or the GTA and you require representation, please contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at https://www.civilparalegal.com/home_services/landlord-and-tenant-board/

civillitigations: October 28, 2018evictionL2landlord tenant boardN12EvictionLandlord and Tenant Boardlandlord tenant act OntarioOntario paralegal

COMMON LANDLORD AND TENANT MYTHS IN ONTARIO PART 1

Myth: Tenants can be evicted at any time if the year. If the Residential Tenancies Act applies only the sheriff can evict and force a tenant out. The sheriff will not act until the landlord has obtained an eviction order from the Landlord and Tenant Board.

A landlord cannot evict a tenant in the winter

Myth: Tenants can be evicted at any time if the year. If the Residential Tenancies Act applies only the sheriff  can evict and force a tenant out. The sheriff will not act until the landlord has obtained an eviction order from the Landlord and Tenant Board.

All residential tenancies in Ontario are covered by the Residential Tenancies Act.

Myth: Section 5 of the RTA lists many situations where the Residential Tenancies Act does not apply.

A tenant is permitted to withhold rent if the landlord has not done repairs.

Myth: Tenants are never permitted to withhold rent.

A tenant can be required to pay all or part of the cost of repairs if the lease contains that clause.

Myth: Section 20 of the RTA makes the landlord solely responsible for repairs to the apartment and residential unit due to normal wear and tear. A landlord is further required to meet all health and safety laws. Section 3 of the RTA states that a provision of a tenancy agreement that contradicts the RTA is void.

Section 34 of the Residential Tenancies Act makes a tenant liable for repairs only if the landlord can prove the tenant or someone the tenant allowed in the apartment willfully or negligently caused damage to the apartment.

The tenant must vacate the apartment at the end of a lease term.

Myth: Section 37 of the RTA states that at the end of a lease term the tenancy automatically renews on the same terms. If rent is paid monthly, the tenancy becomes month to month. A tenant is permitted to stay in the apartment as long as they want. A tenancy can only be terminated if the tenant gives the landlord notice to vacate, the landlord and tenant agree to terminate the tenancy, or the Landlord and Tenant Board makes an order terminating the tenancy and evicting the tenant.

The landlord can prevent the tenant from having overnight guests if that is a term of the lease

Myth: A landlord is not permitted to stop a tenant from having overnight guests.

The landlord can restrict the people living in the apartment to the people named in the lease.

A landlord is not able to restrict the number of people living in an apartment or state that only people named in the lease may live there. However, there are a couple exceptions.

The tenant cannot have more people living in the apartment then the municipal by-law permits. This is considered overcrowding.
The tenant cannot sublease or assign the tenancy without seeking the consent of the landlord.

Do you need help with a case before the Landlord and Tenant Board? If you are in Toronto or the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or  https://civilparalegal.com/home_services/landlord-and-tenant-board/ 

Common Landlord and Tenant Ontario Myths Part 2

Myth: Section 108 of the Residential Tenancies Act prevents a landlord from demanding post-dated cheques or having such a clause in a lease. A tenant may voluntarily provide post-dated cheques to the landlord if it is for the tenant’s convenience.

A landlord can demand post-dates cheques from a tenant if it is a term in the lease.

Myth: Section 108 of the Residential Tenancies Act prevents a landlord from demanding post-dated cheques or having such a clause in a lease. A tenant may voluntarily provide post-dated cheques to the landlord if it is for the tenant’s convenience.

Section 3 of the RTA makes a clause in a lease which is contrary to the RTA void and unenforceable.

A landlord does not need a reason to evict a tenant.

Myth: A landlord may only evict a tenant where the Residential Tenancies Act applies for one of the reasons set out in the Residential Tenancies Act. The Landlord and Tenant Board has a brochure titled “How a Landlord can Evict a Tenant.” This sets out the various types of eviction applications. Here is the link:

http://www.sjto.gov.on.ca/documents/ltb/Brochures/How%20a%20Landlord%20Can%20End%20a%20Tenancy%20(EN).pdf

The tenant is properly given 24 hours written notice by the landlord to enter the apartment for one of the reasons permitted under the act. Despite this, the tenant refuses to allow the landlord to enter the apartment. There is nothing the landlord can do.

Myth: First and foremost, the landlord should contact the Rental Enforcement Unit. This is part of the Ministry of Housing. There is no cost to file a complaint with them. The Rental Enforcement Unit will take steps to try to resolve the issue. If that fails, the Rental Enforcement Unit can investigate and prosecute. If convicted of an offence under the Act, the penalty is a fine of up to $25,000 for an individual and up to $100,000 for a corporation.

Contact the Rental Enforcement Unit at:
Telephone: 416-585-7214
Toll-free telephone: 1-888-772-9277
http://www.mah.gov.on.ca/page142.aspx

A lease can require that a tenant cut the grass or shovel snow.

Myth: Section 20 of the Residential Tenancies Act requires the landlord to keep the building and the residential unit in a good state of repair, and fit for habitation and for complying with health, safety, housing and maintenance standards.
Cutting grass and shoveling snow are maintenance obligations that are solely that of the landlord.

Section 3 of the Residential Tenancies Act states the act applies despite any agreement to the contrary.

A tenant can demand that a landlord use the last month’s rent deposit at any time to cover arrears of rent.

Myth: Section 105(10) of the Residential Tenancies Act makes it mandatory that a last month’s rent deposit can only be applied to the last month the tenant lives there.

Paralegal Representation

Do you need help determining myth from fact? If you are a landlord or a tenant that needs representation at a Landlord and Tenant Board hearing in Toronto and the GTA contact Marshall Yarmus of Civil Litigations at 416-229-1479 or  https://www.civilparalegal.com/home_services/landlord-and-tenant-board/ 

Eviction for interfering with the reasonable enjoyment or interfering with the landlord’s lawful rights?

Typically, an N5 form is served on the tenant for certain types of bad conduct issues. In the notice the landlord alleges the tenant is seriously and substantially interfering with the reasonable

First N5 Form

Typically, an N5 form is served on the tenant for certain types of bad conduct issues. In the notice the landlord alleges the tenant is seriously and substantially interfering with the reasonable enjoyment of another tenant or seriously and substantially interfering with the landlord’s lawful rights, privileges and interests.

Conduct issues that may disturb other tenants include but are not limited to: making too much noise, smoking cigarettes or marijuana, odors emanating from the apartment, etc.

Landlord’s Lawful Rights

There is also conduct that substantially violates a landlord’s lawful rights, interest or privileges. These include, but are not limited to breaching a lease term that significantly affects the landlord’s rights. The lease term violated must be an enforceable lease term; one that is not contrary to the Residential Tenancies Act (RTA). Many leases contain illegal terms that the Landlord and Tenant Board will not enforce.

An N5 notice can be served on the tenant(s) in accordance with section 64(1(2)(3)) of the Residential Tenancies Act. The RTA states:

64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

Notice

(2) A notice of termination under subsection (1) shall,

(a) provide a termination date not earlier than the 20th day after the notice is given;

(b) set out the grounds for termination; and

(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.  2006, c. 17, s. 64 (2).

Notice void if tenant complies

(3) The notice of termination under subsection (1) is void if the tenant, within seven days after receiving the notice, stops the conduct or activity or corrects the omission.”

A first N5 notice is served on the tenant. They then have seven days to stop the bad behavior. If the notice is served on the tenant by mail, then they have twelve days to stop the activity. If they stop the bad activity during the seven or twelve day period that is the basis for the N5, then there cannot be an eviction application to the Landlord Tenant Board Ontario.

If the tenant does not stop the bad behavior within seven days, then the landlord can apply to the Landlord and Tenant Board for an eviction order.

Second N5 Form

However, if the tenant did stop the activity within seven days, but starts up doing the same bad behavior within six months, the landlord may serve a second N5 notice to the tenant. Once served, the landlord can immediately apply to the Landlord and Tenant Board for an eviction order.

Common Errors made by self represented landlords in preparing the N5 notice include: not serving the notice(s) correctly in accordance with the Residential Tenancies Act and its rules, not proving enough details in the N5 in violation of the principals set out in the important Divisional Court case of Ball v. Metro Capital, failing to count the days properly, failing to fully and properly identify the rental unit. These errors can be fatal to the landlord’s case. If the board determines the notice was prepared improperly, the board will not issue an eviction order. See the Landlord and Tenant Board’s Interpretation Guideline #10 for more information.

It is important to obtain the legal representation of a paralegal Ontario early.

The majority of people who come in to see me for a consultation have an N5 that was prepared incorrectly.  When representing a tenant, I seek to have the application dismissed on that basis alone. When I represent a landlord, I urge them to have me re-do and re-serve the N5 properly, or face the likely outcome of their application being dismissed.

At the hearing of an L2 application based on an N5 notice, the landlord must prove the contents of their notice(s).  This often means calling another tenant, property manager, superintendent or other person to testify at the hearing. When in doubt whether the witness will testify voluntarily, a Summons should be issued and served on that person.

I started the article by stating typically an N5 notice is given to the tenant for bad behavior. However, if the building contains three units or less the landlord may choose to use an N7 form instead.

Section 65(1)(2)(3) of the Residential Tenancies Act states:

65 (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord.  2006, c. 17, s. 65 (1).

(2) A notice of termination under this section shall set out the grounds for termination.  2006, c. 17, s. 65 (2).

Non-application of s. 64 (2) and (3)

(3) Subsections 64 (2) and (3) do not apply to a notice given under this section.  2006, c. 17, s. 65 (3).

There are two main benefits of a landlord using an N7 LTB notice, if applicable, over the N5 form. First, the tenant is not given a period of time to stop the bad behavior.

Secondly, a landlord can apply to the Landlord and Tenant Board immediately after serving the N7 notice on the tenant. There is no required waiting period as there is with an N5 form.

Paralegal Representation

With so much on the line for both landlords and tenants in these types of notices and applications, it would be wise to obtain the representation of an experienced Ontario licensed paralegal to represent you.

If you are in Toronto or the GTA and you require representation, please contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit our website at http://stage.civilparalegal.com/services/landlord-and-tenant-board/

Eviction For Persistent Late Payment of Rent

The Landlord and Tenant Board sees lots of N8 Persistent Late Payment of Rent applications. Most self-represented landlords think they will get an eviction order as a result of this L2 application based on an N8. Chances are they will not.

The Landlord and Tenant Board sees lots of N8 Persistent Late Payment of Rent applications. Most self-represented landlords think they will get an eviction order as a result of this L2 application based on an N8. Chances are they will not.

N8 Form and L2 Application

An N8 notice can be served with at least 60 days notice at the end of a lease term or served on a month to month term. The notice must be properly completed so that the tenant knows the case she has to meet.

Failure to Provide Enough Details in the N8 Form

The board may dismiss the application if the N8 notice fails to give enough details. See Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div Ct.)
An application is filled with board under section 58(1) of the Residential Tenancies Act. The RTA states:

58 (1) A landlord may give a tenant notice of termination of their tenancy on any of the following grounds:

  1. The tenant has persistently failed to pay rent on the date it becomes due and payable.

How many times is the tenant required to pay rent late to bring this application? As you can see there is no definition in the RTA of how many late payments constitute persistent late payment of rent.

Landlords are encouraged to serve an N4 every time the rent is late. These N4s can be used as evidence in a Persistent Late Payment of Rent application.

In TEL-80574-17 (Re), 2017 CanLII 94082 (ON LTB) the board found that rent paid late nine of the last 11 months constitutes Persistent Late Payment of Rent.

In TEL-78434-17-RV (Re), 2017 CanLII 60063 (ON LTB) the board found:

5.     The Tenant has also been persistently late paying the rent. Since July of 2016 the Tenant has never paid rent on time and in full. Between September of 2016 and March of 2017 she was continuously in arrears. The Rent Bank cleared the arrears then owing on March 28, 2017. Since then new arrears have accumulated.

  1. 17.  An order shall issue terminating the tenancy on May 31, 2017 pursuant to the notice of termination for persistent late payment of rent.”

Eviction in Ontario is a Last Resort

Eviction is supposed to be the last resort to deal with applications. Board adjudicators are reluctant to evict a tenant on a first Persistent Late Payment of Rent application.

The typical order the LTB will make on a persistent Late Payment application is to order the tenant to pay rent on the first business day of the month for the next 12 months. If the tenant makes all the payments, then no problem and the tenancy will continue. However, if the tenant fails to pay the rent in full and on time, the landlord can come back to the board without notice to the tenant to seek an eviction based on a single default of the order.
The Landlord and Tenant Board Interpretation Guideline 7 gives some information of discretionary refusal of an eviction due to an N8 Persistent Late Payment of Rent. Guideline 7 reads in part:

“Circumstances Justifying Discretionary Refusal

“In a case of persistent late payment of rent, the tenant had financial problems when he became unemployed, but for months since he found another job, payment has been right on time. The eviction may be refused despite the earlier months of late payments, due to the tenant’s good conduct. In such circumstances, the Member may order that on-time rent payments are to be made, by the tenant to the landlord, for a specified number of months following the hearing.

A tenant is not excused from paying rent even if the landlord has greater financial resources (e.g., a public agency or large corporate landlord). Other relevant factors may include whether the current reason for eviction has been repeated, the impact this tenant is having on the landlord or other tenants, whether the tenant has taken positive steps to reduce or eliminate the reason for the eviction, and other indications of good faith on the part of either the landlord or the tenant.”

A non-payment of rent notice is voidable by the tenant paying all the rent that is owed. A persistent late payment of rent notice N8 is not voidable. Once served, the tenant cannot fix their behavior to avoid an L2 eviction application and a Notice of Hearing.

Hearings at the Landlord and Tenant Board can be complicated. This is especially true if you are not familiar with the forms, applications, rules of the Landlord and Tenant Board, the board’s Interpretation Guidelines, case law, and evidence necessary to win your case.

If you need representation at the Landlord and Tenant Board I encourage you to hire an experienced licensed paralegal Ontario.

If you are in Toronto or the GTA and require the services of an experienced licensed paralegal, please contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit   https://civilparalegal.com/home_services/landlord-and-tenant-board/

Common Landlord and Tenant Myths Part 3

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

The Residential Tenancies Act (RTA) only applies if you have a written lease

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

 Landlords can include a “not pet” provision in the lease

Myth: A no pet provision in a lease is void. Section 14 of the Residential Tenancies Act states:

No pet” provisions void                       

14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.  2006, c. 17, s. 14.”

However, case law dealing with condominiums have found otherwise. If the tenant lives in a condominium, the landlord must provide the tenant a copy of the condominium corporation’s declarations and by-laws. If the condominium corporation has made a declaration or by-law that there are no pets allowed in the entire building that may be enforceable against a tenant as it is against ever unit owner in the building.

A landlord can arbitrarily refuse the subletting or assignment of a tenancy

Myth: The RTA permits a tenant to sublet or assign their lease. The tenant must request permission from the landlord to do so; however the landlord cannot unreasonably refuse the sublet or assignment request.

These terms subtenant and subletting are often misused by landlords and tenants in Ontario. Section 2(2) of the Ontario Residential Tenancies Act (RTA) defines subletting as:

2(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,

(a) the tenant vacates the rental unit;

(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and

(c) the tenant has the right to resume occupancy of the rental unit after that specified date.  2006, c. 17, s. 2 (2).

Section 97(4) and (5) of the RTA state:

Consequences of subletting

(4) If a tenant has sublet a rental unit to another person,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy.  2006, c. 17, s. 97 (4).

Overholding subtenant

(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy.  2006, c. 17, s. 97 (5).

If the landlord rented the apartment with an “As is” clause in the lease the tenant cannot complain about maintenance issues which existed before they moved in.

Myth: Section 3 of the RTA states the act applies despite any waiver or agreement to the contrary.  Section 20(1) and 20(2) of the RTA state:

“Landlord’s responsibility to repair

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.  2006, c. 17, s. 20 (1).

Same

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.  2006, c. 17, s. 20 (2).

The Human Rights Code does not apply to Ontario tenancies covered by the Residential Tenancies Act

Myth: Every landlord has a duty to accommodate a tenant’s code related ground, such as a disability, to the point of undue hardship. To do so the tenant must advise the landlord of disability, and seek accommodation from the landlord.

Even if the tenant does not tell the landlord about the disability, the landlord cannot be willfully blind. If a disability is obvious, the landlord will be considered to have constructive knowledge of it and therefore should have attempted to address the issue with the tenant prior to taking steps to evict the tenant.

Landlord’s obligations to accommodate under the Human Rights Code are complicated. This is just an overview of the law.

See Landlord and Tenant Board Interpretation Guideline 17 for more information.

Interpretation Guideline 17 states in part:

Relief from eviction

In Walmer Developments v. Wolch15 the Divisional Court held that the Ontario Rental Housing Tribunal (now the Board) must consider and apply the Code when exercising its authority to grant relief from eviction. A Member considers such relief pursuant to section 83 of the RTA. Section 83 states that the Member must have regard to all the circumstances to determine whether it would be unfair to refuse the landlord’s eviction application or postpone the enforcement of the eviction order.

If the Member determines that the landlord has failed to accommodate a tenant covered by one or more of the categories contained in subsection 2(1) of the Code up to the point of undue hardship, the Member must consider relief from eviction in accordance with clause (a) of subsection 83(1) of the RTA. However, even if relief is granted, the Member may still consider whether other types of conditions and requirements should be ordered to address the conduct or problem at issue. The authority to make such orders comes from subsection 204(1) of the RTA.

My lease has expired. My tenancy is now on a month to month basis. Terms of the expired written lease no longer apply

Myth: At the expiry of a written lease the tenancy continues on a month to month basis indefinitely on the same terms and conditions contained in the written lease. Evictions based on behavior of the tenant that are contrary to the written lease can still be the subject of an eviction application to the Ontario Landlord and Tenant Board (LTB).

Landlord and tenant applications to the LTB can be complicated. Even cases that start out as straight forward can become complicated at a hearing. Whether you are a landlord or a tenant bringing or defending an application at the Landlord and Tenant Board your best weapon to hire an experienced licensed, trained, and insured Paralegal Ontario.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/ 

Landlord and Tenant Board

Why you should hire an Ontario Paralegal?

In most cases paralegals charge less then lawyers for the same work. In some cases senior paralegals – who been doing this work for more than twenty years, have rates competitive with a junior lawyer who is still learning.

Paralegals are more affordable than lawyers 

In most cases paralegals charge less then lawyers for the same work. In some cases senior paralegals – who been doing this work for more than twenty years, have rates competitive with a junior lawyer who is still learning.

Paralegals are qualified and licensed

In 2008 licensing of paralegals began. Paralegals were licensed by what was then called the Law Society of Upper Canada. It is now called the Law Society of Ontario. This is the same organization that has regulated lawyers since 1797.

In 2008 those of us paralegals who were practicing for at least 3 years, and who met all the licensing requirements including being of good character were grandfathered in. We had to write a licensing exam based on legal ethics, professionalism, and practice management.

In the years since over 30 Ontario college campuses have been accredited by the Law Society of Ontario to be able to teach the approved paralegal course. Passing an accredited college course is now a pre-requisite to writing the paralegal licensing exam. Students must also complete a mandatory  unpaid internship.

In 2015, the paralegal licensing exam become more rigorous. It is now a seven hour exam. The exam now covers virtually every course and every area of permitted paralegal scope of practice, plus it still tests students on legal ethics, professionalism, and practice management.

Most paralegals specialize in representing in only certain courts or tribunals

The law is complex and ever changing. There is too much law for any one person to know everything. Most paralegals only represent people in a few courts or tribunals. Those of us with years of experience become experts in the court or tribunals we appear in.

Many paralegals belong to a professional association whose work is vital to the profession

Many paralegals belong to the Ontario Paralegal Association. I belong to the Ontario Paralegal Association. This paralegal association is focused on advancing the profession, lobbying the government and the Law Society, and providing continuing legal education course to its paralegal members. Before hiring a paralegal to represent you, I suggest you ask whether they are a member of any professional associations.

Paralegals carry errors and omissions insurance to protect you

If the paralegal you hire is negligent, and as a result you lose money, you can sue the paralegal knowing they are required to carry insurance to protect you – the client. Every practicing paralegal is required to carry insurance with a million coverage per claim, two million dollars total.

If you represent yourself and you make an error, you must bear the cost of that error.

Paralegals pay into a compensation fund

The Law Society of Ontario administers a compensation fund to protect the public against a potential dishonest paralegal; one who steals the money you have provided them in advance for fees or money received in their trust account as a settlement. To my knowledge, in the over ten years since paralegals have been regulated; I am unaware of a single claim made to the paralegal compensation fund.

Paralegals are required to abide by rules and by-laws intended to protect the public

The Law Society of Ontario will investigate every complaint made against a paralegal– at no charge to you. There are a range of possible outcomes. In the most serious cases where a paralegal has been found to have violated the rules they could be fined, suspended from practicing, or have their license to practice as a paralegal revoked. Contact the Law Society of Ontario for more information.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal for Small Claims Court representation or Landlord and Tenant Board representation, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit www.civilparalegal.com

Why hire an Ontario Paralegal for a Judgment Debtor Examination to Collect a Small Claims Court Judgment?

A judgment debtor examination is often a judgment enforcement method of last resort. There are usually better ways to collect a small claims court judgment if you have information about the assets of the debtor.


However, if you have no information about a debtor other than an address, the judgment debtor examination hearing, if done correctly, can help the creditor immensely.

Notice of Examination

A judgment debtor examination like most enforcement action must take place in the court’s jurisdiction where the debtor lives or where they carry on business. A Notice of Examination is issued by the court giving a specific date and date to attend the hearing. The Notice of Examination must be served on an individual debtor either personally (handing it directly to the named debtor) or by leaving a copy of the Notice of Examination in a sealed envelope addressed to the debtor at the residence of the debtor, with a person who appears to be an adult resident of the same address, and then mailing or sending another copy by courier the next day.

If an individual debtor is being examined you must also serve a black financial information form on the debtor. Both the Notice of Examination and the black financial information form must be served on the debtor at least 30 days before the scheduled hearing.

Judgment Against a Corporation

If your judgment is against a corporation you must obtain a Corporate Profile Report of the company. This will list all directors of the corporation. You must name a director that you intend to bring to into court to be examined about the corporation’s ability to pay the judgment. The Notice of Examination may be served on the corporation by leaving a copy with any officer or director of the corporation or with a person at a place of the business of the company who appears to be in control or management of the business.

Searches are also needed in the case of a debtor  who is against a sole proprietorship or a partnership.

Judgment debtor examinations are held in private unless a judge orders otherwise. The judgment debtor examination is done under oath, and is recorded.

There was a case I was involved in at the Toronto Small Claims Court where I spent about two hours examining the debtor over two days. At a later time my client was able to prove that the debtor had intentionally lied under oath. She obtained a transcript of the examination hearing, and when to a Justice of the Peace to lay a criminal perjury charge.

What can you ask a Debtor?

Small Claims Court Rule 20.10(4) sets out what a person can be examined about. It states:

20.10 (4) The debtor, any other persons to be examined and any witnesses whose evidence the court considers necessary may be examined in relation to,

(a) the reason for nonpayment;

(b) the debtor’s income and property;

(c) the debts owed to and by the debtor;

(d) the disposal the debtor has made of any property either before or after the order was made;

(e) the debtor’s present, past and future means to satisfy the order;

(f) whether the debtor intends to obey the order or has any reason for not doing so; and

(g) any other matter pertinent to the enforcement of the order.  O. Reg. 258/98, r. 20.10 (4)”

An experienced paralegal conducting  a judgment debtor examination can spend a lot of time asking the debtor questions. The above rule is so broad that they can ask about all income and assets of the debtor, debts owed to the debtor, and the debtor’s past, present and future ability to pay the judgment.

Don’t be afraid to ask the debtor anything and everything that may be helpful to you in gathering information to enforce the judgment. You must take careful notes of all the information you obtain.

At the conclusion of the judgment debtor examination a creditor or their Ontario paralegal may ask the court for several orders. Rules 20.10(7) and 20.10(8) are important. They state:

Order As To Payment

(7) After the examination or if the debtor’s consent is filed, the court may make an order as to payment.  O. Reg. 258/98, r. 20.10 (7); O. Reg. 461/01, s. 20 (1).

Enforcement Limited while Order as to Payment in Force

(8) While an order as to payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.  O. Reg. 258/98, r. 20.10 (8).

The creditor or their paralegal can ask the judge to make an order for monthly payments. However, while that order is in place, the creditor is limited in taking other enforcement action other then issuing a writ of seizure and sale of lands and filing it with the sheriff.

If the debtor defaults on the monthly payments as ordered by the court the creditor cannot take other enforcement action until the Notice of Default of Payment and Affidavit of Default of Payment forms have been properly served and filed with the court with proof of service. See Small Claims Court sub-rules 20.02(3)(4).

Your Ontario paralegal will advise you whether asking for an order for monthly payments is a wise thing to do under all the circumstances.

The court also has the ability to order a review hearing, if requested,  and to make specific orders for the debtor to produce documents which are generally related to the debtor’s assets, income, and living expenses.

If the person to be examined attends the judgment debtor examination but refuses to answer questions, or attends but refuses to produce documents as ordered, they can be ordered to attend a contempt hearing. This could lead to a warrant for their arrest to issue.

At the end of the day you should be able to either obtain a court order for monthly payments, or have information necessary to take other enforcement action to collect the judgment. If you obtain an order for payments, and the debtor defaults on payments as ordered, you should still have information to take other judgment enforcement action.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal for a judgment debtor examination at the Toronto Small Claims Court, Richmond Hill Small Claims Court, or Brampton Small Claims Court, or for other judgment enforcement action, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit  https://civilparalegal.com/home_services/judgement-enforcement/

Is the LTB too complicated for landlords to self-represent?

Too many small to medium sized landlords learn the hard way that you need to know a lot to bring an eviction application to the Landlord and Tenant Board. The Ontario Residential Tenancies Act, Notices of Termination, and case law are not easy to understand.

Too many small to medium sized landlords learn the hard way that you need to know a lot to bring an eviction application to the Landlord and Tenant Board. The Ontario Residential Tenancies Act, Notices of Termination, and case law are not easy to understand. The board has its Interpretation Guidelines to try to help the self-represented and small landlords.

It may not be enough.

Application Dismissed for Technical Reasons

Most landlord applications are preceded by a Notice of Termination served on the tenant; such as an N4, N5, N6, N7 N8, N12, and N13. If the Notice of Termination is missing key information the board should dismiss your application.

Sections 43(1) and 43(2) state the information required in a Notice of Termination. It states:


43 (1) Where this Act permits a landlord or tenant to give a notice of termination, the notice shall be in a form approved by the Board and shall,

(a) identify the rental unit for which the notice is given;

(b) state the date on which the tenancy is to terminate; and

(c) be signed by the person giving the notice, or the person’s agent.

(2) If the notice is given by a landlord, it shall also set out the reasons and details respecting the termination and inform the tenant that,

(a) if the tenant vacates the rental unit in accordance with the notice, the tenancy terminates on the date set out in clause (1) (b);

(b) if the tenant does not vacate the rental unit, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant; and

(c) if the landlord applies for an order, the tenant is entitled to dispute the application.”

Too often self-represented landlords fail to properly identify the rental unit. They forget to add an apartment number, or state basement apartment. Sometimes, no one mentions during the hearing that tenant rents a certain apartment number. In that case, the landlord may get an eviction order, but may find that the sheriff is unwilling to enforce the eviction order.

In the case of Ball v. Metro Capital Property and Lockhurst (December 19, 2002), Toronto Docket No. 48/02 (Div. Ct.), the Divisional Court  determined that an N5 notice of termination was defective as the notice failed to give the tenant enough information to know the case against her, and to be able to correct the behavior within seven days. The case also stated that the notice must contain specific dates and times when bad behaviour occurred.

An LTB adjudicator called a Member is required to strictly interpret the law.

The LTB provides mediation services if both the landlord and tenant are willing to work out a deal. A mediator is not restricted by technical errors in completing the forms.

A landlord may be able to get around any technical errors in the notice of termination by coming to a mediated settlement.

A Landlord and Tenant Board adjudicator will usually ignore these technical errors in the notice of termination if the landlord and the tenant come to a consent on how to resolve the application. The board adjudicator will prepare a consent order.

Relief from Eviction

On every application the board is required to consider all the circumstances disclosed to determine whether it would be fair to delay or deny an eviction.

If the tenant can prove any of the following, then the board must refuse an eviction.

(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord’s violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants’ association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

Many self-represented landlords are unaware of these requirements. Often self-represented landlords fail to put forward any evidence of how the board delaying or denying an eviction will affect them.

Worse, landlords are not prepared to ask questions of the tenant or the tenant’s witnesses on this point.

Witness Letters

Many self-represented parties plan to prove vital facts by producing a witness letter. They are unaware that virtually ever board member’s view is that witness letters carry no weight.

If you choose not to hire an experienced Ontario licensed paralegal to represent you, you may find your application dismissed for technical reasons, or you may not be aware what you are required to prove and how to prove it.

Paralegal Representation

Our office receives calls from small landlords everyday who have had their cases dismissed. Sometimes the small landlords don’t even understand why their case was dismissed.

If you are in Toronto or the GTA and you need to hire a paralegal for an LTB case, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

Common Landlord and Tenant Myths in Ontario – Part 4

I wasn’t expecting to be doing another blog on Common Landlord and Tenant Myths so soon. The following are myths I have had to debunk when asked by clients or prospective clients in past few weeks.

I wasn’t expecting to be doing another blog on Common Landlord and Tenant Myths so soon. The following are myths I have had to debunk when asked by clients or prospective clients in past few weeks.

A Tenant can vacate the apartment whenever they want without consequences

Myth:  If a tenant has a lease term, they cannot leave until the end of the term. Whether on a lease term or month to month basis a tenant is required to give at least 60 days written notice of their intention to leave. If rent is paid on the first of the month, the notice should indicate that the tenant will leave on the last day of a month. The written notice should be in the form of an N9 form.

If the tenant fails to give the proper written notice, the landlord may be able to sue the former tenant for loss of rent.

A landlord in Ontario is entitled to collect a security deposit to cover damages

Myth:  I thought this would not fall under common myths, but the subject of security deposits has come up in my practice twice in the past few weeks. A landlord is never permitted to collect a security deposit or a damage deposit.

A landlord is not permitted to accept rent payments in advance

Myth: There is a lot of confusion regarding pre-paid rent. A landlord is not permitted to demand that rent be paid in advance. However, with the shortage of rental units in the Toronto area a tenant is permitted to offer to pay many months worth of rent in advance if the landlord will accept their rental application. It is legal for the landlord to accept this offer.  This is attractive to landlords who are real estate investors.

If the tenant agrees to a provision in a tenancy agreement, it is enforceable.

Myth: Landlords and tenants cannot agree to a term in a tenancy agreement or lease which is contrary to the Residential Tenancies Act. Section 3 of the Residential Tenancies Act deems such terms as void and unenforceable.

A Landlord can email or text a tenant about a rent increase

Myth: Unless the proper Landlord and Tenant Board N1 Form is used and served to the tenant by a method specified in the Rule 3 of the Landlord and Tenant Board Rules any rent increase is void.

Let that sink in. If the landlord fails to use the proper Landlord and Tenant form for rent increases, and fails to serve the Notice of Rent Increase properly, the notice is void, and the rent increase is void.

A landlord may not worry as the tenant starts to pay the rent increase anyway. The landlord should worry, because at any time during the tenancy, the tenant can do any of the following:

  1. Bring a T1 application claiming the landlord illegally raised their rent, and they want all of the illegal increase ever paid to the landlord be returned to them. This could be months or even years worth of the illegal rent having to be refunded.

2. On any application to the LTB to terminate a tenancy, the board must consider section 83 of the Residential Tenancies Act. Sub-section 83(3) requires the board to refuse an eviction if the landlord is in serious violation of their duties under the RTA. If thousands of dollars of illegally collected rent increase was paid, a licensed paralegal representing a tenant could argue that the landlord is in serious violation of their duties under the act, and therefore could argue to the board, relying on the appropriate case law, that the eviction application must be dismissed.

3. There are two arguments a tenant can make on a non-payment of rent application. The tenant’s licensed paralegal, quoting case law, can argue because of the illegal rent increase the amount the landlord claims is owed is incorrect, and as such the landlord’s eviction application must be dismissed.

4. Also on a non-payment of rent application section 82 of the RTA allows a tenant to pursue any issue which they could have brought their own application. Put another way, a tenant can bring an application in defence to a non-payment of rent application without paying a filing fee, without preparing an application, and without telling the landlord in advance of the hearing date of the issues they plan to raise.

5. On a non-payment of rent application a tenant’s licensed paralegal can argue relying on proper case law, that a due to an illegal rent increase a net amount of rent is outstanding to the tenant. They can ask for an order that the landlord pay them this net rent amount to the tenant. The board can make this order as if a T1 Application had been filed with the LTB.

A landlord can email or send a text message to the tenant of a notice of entry

Myth: At least most of the time.

Sections 26 and 27 of Residential Tenancies Act deal with entry to the rental unit.

Section 26(3) of the RTA states:

“3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if,

(a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other;

(b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and

(c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so.”

If section 26(3) of the act applies, it could be argued, that email or text message notice is sufficient as the landlord is only required to “makes a reasonable effort to inform the tenant of the intention to do so.”

Section 27 of the RTA allows a landlord to give a notice of entry if:

“27 (1) A landlord may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry under the following circumstances:

  1. To carry out a repair or replacement or do work in the rental unit.
  2. To allow a potential mortgagee or insurer of the residential complex to view the rental unit.
  3. To allow a person who holds a certificate of authorization within the meaning of the Professional Engineers Actor a certificate of practice within the meaning of the Architects Actor another qualified person to make a physical inspection of the rental unit to satisfy a requirement imposed under subsection 9 (4) of the Condominium Act, 1998.
  4. To carry out an inspection of the rental unit, if,
  5. the inspection is for the purpose of determining whether or not the rental unit is in a good state of repair and fit for habitation and complies with health, safety, housing and maintenance standards, consistent with the landlord’s obligations under subsection 20 (1) or section 161, and
  6. it is reasonable to carry out the inspection.
  7. For any other reasonable reason for entry specified in the tenancy agreement. 

(2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. “

Under sub-subsections 27(1) or 27(2) of the RTA can a landlord text a tenant with twenty-four hours notice? No. A landlord is never legally permitted to text a tenant a notice of entry.

Under sub-subsections 27(1) or 27(2) of the Residential Tenancies Act can a landlord email a tenant with twenty-four hours notice?  Sometimes.

The LTB Rules were changed in December 2018 so that a landlord can email a notice of entry but only under two circumstances.

If the tenancy was entered into using the new Ontario Standard Lease and the section of the lease that asks whether the tenant will accept certain notices by email was answered with a yes.

The only other legal service by email is by the tenant signing a Landlord and Tenant Board form called“Consent to Service by Email.”

It is important to note that under no circumstances, can a Notice of Termination be served on a tenant by email.

Paralegal Representation

Our office receives calls from small landlords and commercial real estate investors everyday who have had their cases dismissed. Sometimes the small landlords don’t even understand why their case was dismissed.

If you are in Toronto or the GTA and you need to hire a paralegal, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

Are you an Ontario Landlord defending an Application Concerning Tenant’s Rights also known as a T2 Application?

If the tenant does not receive 100% of what they bargained for in renting their apartment, a tenant (current or former) can file a T2 application against their Ontario residential landlord claiming money damages up to $25,000.00, as well as other remedies.

If the tenant does not receive 100% of what they bargained for in renting their apartment, a tenant (current or former) can file a T2 application against their Ontario residential landlord claiming money damages up to $25,000.00, as well as other remedies.

This is one of most common tenant applications that a landlord may have to defend.

The T2 application is also called an Application Concerning Tenant’s Rights. It is filed with the Ontario Landlord and Tenant Board. Section 29(1) sub-paragraphs 2 to 6 of Ontario Residential Tenancies Act sets out the grounds that a tenant or a former tenant can file an Application Concerning Tenant’s Rights. The grounds include the landlord, superintendent or agent has:

  • withheld or deliberately interfered with the reasonable supply of any vital service, that it is the landlord’s obligation to provide
  • substantially interfered with the reasonable enjoyment of the apartment or residential complex by the tenant or a member of the tenant’s household
  • harassed, obstructed, coerced, threatened or interfered with the tenant during the tenant’s occupancy of the apartment
  • has altered the locking system to the apartment or residential complex during the tenant’s occupancy of the apartment without giving the tenant replacement keys
  • illegally entered the apartment

If the tenant proves the landlord did any of the above, the Residential Tenancies Act allows the Landlord and Tenant Board to order the landlord:

  • to stop the activity
  • to pay money to the tenant to repair or replace an item that landlord damaged
  • to pay reasonable out of pocket expenses of the tenant
  • to pay an abatement of rent
  • to pay a fine to the board
  • to terminate the tenancy
  • to make any other order the Board considers appropriate

If the landlord has interfered with the tenant’s reasonable enjoyment of the apartment, and the Board agrees, then the landlord would be ordered to pay an abatement to the tenant. (A percentage of the rent returned to the tenant.) For example, if a problem persisted for three months, the Board may order the landlord to pay the tenant 25% of the monthly rent times three months to compensate the tenant for their loss of enjoyment.

The order will usually state if the money is not paid by a certain date, than the tenant may deduct the abatement from the monthly rent.

If the tenant was induced by the conduct of the landlord to vacate the apartment, the Ontario Landlord and Tenant Board may also order the landlord to pay the subsequent increased rental expenses that the tenant will or has to incur for a one-year period after the tenant left the apartment. The Board may also order reimbursement for moving and storage expenses.

Paralegal Representation

Our office receives calls from small landlords, and commercial real estate investors, who self-represented themselves and lost their case involving an Application Concerning Tenant’s Rights. Sometimes these small landlords don’t even understand why they lost. Often, they mistakenly thought defending a T2 application is simple, and would not require the skill of a paralegal. They learned the hard way that a skilled Toronto paralegal can make all the difference.

If you are a landlord needing to defend a T2 application in Toronto or the GTA you need to hire an experienced, licensed, Ontario paralegal. Contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/

You can rely on his 23 years of experience.