Ontario Landlords with “Bad Faith” Applications Beware

If a landlord gave a notice of termination in bad faith for landlord’s own use, purchaser’s own use, or for demolition, conversion, or major repairs, the board will now be able to order compensation for general damages to the former tenant in an amount not exceeding 12 months of rent at the last rate the former tenant paid the landlord.

To all Landlords:

These amendments to the Residential Tenancies Act under Bill 184 will go into effect on a date yet to be announced.

Landlords awaiting hearings who know they gave a notice of termination in “bad faith” for landlord’s own use, purchaser’s own use, or for demolition, conversion, or major repairs and renovations should beware. You should be scared of sections of the Residential Tenancies Act not yet in effect if, you have a case before the board.

The amounts of money a former tenant given a notice of termination in bad faith, can be awarded has risen dramatically. See section 57, 57.1, 71.1, 72, and 231.1 of the Residential Tenancies Act below for more information.

Landlords with “bad faith” applications currently before the board should consider withdrawing the applications.

Please note that although every effort was made to make sure these explanations are complete and accurate, it is very difficult to take sections of the RTA that are written in complex legal language and explain them fully in layman’s language.

Please check the precise wording of the amendments made in the Residential Tenancies Act. It is recommended that you obtain proper legal advice on interpreting the RTA, and how it applies to you.

Section 57(3) (8)

If a landlord gave a notice of termination in bad faith for landlord’s own use, purchaser’s own use, or for demolition, conversion, or major repairs, the board will now be able to order compensation for general damages to the former tenant in an amount not exceeding 12 months of rent at the last rate the former tenant paid the landlord.  

This section applies even if the tenant suffered no actual out of pocket damages. This section applies even if the Tenant’s application was filed before this section comes into force, provided the application was not decided prior to this section came into effect.

Section 57.1(2)(2.1)(2.2)

A Tenant given a Notice of Termination (N13) as the landlord intents to make major repairs or renovations to the apartment, has the right of first refusal to move back into the apartment when the major repairs or renovations are completed. If the landlord refuses to allow the tenant to move back in currently the tenant can apply to the board up to one year after they vacated.

This amendment will allow a tenant apply to the board up to two years after vacating. If a tenant has already applied to the board between one and two years after vacating, the application will be allowed to proceed.

If an application has already been dismissed as it was filed more than one year after the tenant vacated, the tenant will be allowed to re-apply if it is less than two years after they vacated.

Section 71.1(1)(2)

A landlord who applies for an eviction for landlord’s own use or purchaser’s own use will have to file an affidavit of the person who plans to move in with the board at the time the application is filed. The board will have the right to refuse the application if the affidavit is not filed at that time.

Section 71.1(3)(4)

A landlord who applies for an eviction for landlord’s own use, purchaser’s own use, or for demolition, conversion or repairs will have to indicate whether or not the landlord has given within the last two years, any notices to any tenant, at any property, for landlord’s own use, purchaser’s own use, or for demolition, conversion or repairs.

If a notice had been given to any tenant within the last two years, the landlord will also have to indicate: the date of the notice given, the address of the apartment related to the notice was given, identify who was supposed to move in.

If the landlord fails to comply with this section the board shall refuse the filing of the application.

Section 72(3)(4)

In determining the good faith intention for a landlord’s own use, or purchaser’s own use applications, the board may consider whether notices have been given to any tenant within the last two years under section 71.1(3)(4).

Section 87(1)(1.1)(3)(3.1)(4)(5)(6)(7)

A landlord will be allowed to apply to the board for a money judgment for non-payment of rent up to one year after the tenant vacates. This section will have to be effective on the day the tenant vacated.

The landlord will also be allowed to apply for daily rent from a former tenant, if the tenant remained in the apartment after being given any notice of termination, or there was an agreement to terminate the tenancy.

The tenant will have to be living in the apartment on the day this section came into effect. A landlord may apply to the board under this section while the tenant is still living there, or up to one year after the tenant vacated.

A landlord will be able to seek NSF cheque fees from a former tenant.

A landlord will be permitted to apply for non-payment of rent, daily rent compensation and NSF chqeues from a former tenant, even if the amounts were owed before this section comes into effect.

This section will not affect any claims against a former tenant that are already before the Small Claims Court or the Superior Court of Justice.

Section 88.1(1)(2)(3)(4)(5)(6)

A landlord will be allowed to apply to the board for reasonable out of pocket expenses related to the tenant or former tenant’s interference with the landlord’s reasonable enjoyment of the property, or another lawful right or privilege of the landlord.

This application will have to be made while the tenant is still living in the apartment, or up to one year after the tenant vacates.

The section applies even if the reasonable interference with enjoyment, lawful rights of the landlord, or the expenses occurred before this section came into effect.

This section will not affect any claims against a former tenant that are already before the Small Claims Court or the Superior Court of Justice.

Section 88.2(1)(2)(3)(4)(5)(6)

A landlord will be allowed to apply to the board for utility costs that the tenant or former tenant was required to pay the landlord.

This application will have to be made while the tenant is still living in the apartment, or up to one year after the tenant vacates.

The section applies even if the utility costs occurred before this section came into effect.

A landlord will be allowed to apply for reasonable out of pocket expenses utility costs already paid, or future costs related to utility expenses.

This section will not affect any claims against a former tenant that are already before the Small Claims Court or the Superior Court of Justice.

Section 89.1(1)(2)(3)(4)

A landlord will be allowed to apply to the board to pay for reasonable costs that the landlord has incurred or will incur for the repair of or, where repairing is not reasonable, the replacement of damaged property that the tenant or former tenant was required to pay the landlord.

The damage must be to the apartment or the residential complex. The damage must be as result of the negligence or willful actions of the tenant or former tenant, or the negligence or willful actions of a person the tenant or former tenant allowed in the apartment.

This application will have to be made while the tenant is still living there, or up to one year after the tenant vacates.

The section applies even if the damage to the apartment or residential complex occurred before this section comes into effect.

A landlord will be allowed to apply for reasonable out of pocket expenses utility costs already paid, or future costs related to utility expenses.

This section will not affect any claims against a former tenant that are already before the Small Claims Court or the Superior Court of Justice.

Section 189.0.1

A landlord filing an application against a former tenant for unpaid rent, compensation for daily use, unpaid utilities, or damages to the rental unit or residential complex will have to locate a current address for service for the former tenant.

A landlord suing a former tenant must serve the former tenant with the application and notice of hearing, and file a certificate of service with the board.   

Section 191(1.0.1)

An application and notice of hearing served on a former tenant must be served either personally, by mail to the current address of the former tenant, handing the documents to an adult where the tenant currently lives, or by another method permitted by the rules.

Section 231.1(1)

The Rental Housing Enforcement Unit of the Ministry of Housing prosecutes offenses made under the Residential Tenancies Act. This section permits a provincial judge or justice of the peace, to issue orders for production of documents to assist in an investigation by the Rental Housing Enforcement Unit.  

A Case Management Hearing can be the Most Important Hearing

A Case Management Hearing at the Landlord and Tenant Board can be the most important hearing whether the case settles or not.

The LTB Ontario may schedule a Case Management Hearing to deal with an application. Most CMH hearings are scheduled for tenant applications. Case Management Hearings are subject to the Landlord and Tenant Board’s Practice Direction on Case Management Hearings, and Landlord and Tenant Board Rule 9. See the Landlord and Tenant Board’s website for its practice directions and rules.    

The Landlord and Tenant Board Practice Direction on Case Management Hearings (CMH) set out the hearings purpose as:

“The CMH has two purposes. First, it provides an opportunity for parties to explore settlement of the issues in dispute, usually with an LTB Hearing Officer, who is trained in dispute resolution. Second, if parties are unable to resolve all the issues in dispute, the LTB will make directions to facilitate a fair, just and expeditious merits hearing, or in appropriate circumstances, make orders finally determining matters agreed to by the parties or not in dispute.”

In my opinion there are many other benefits of a Case Management Hearing.

The Landlord and the Tenant should attend the CMH. They can attend with a licensed paralegal or a lawyer representing them. No witnesses are permitted at the CMH.

If the issues raised in the application cannot be settled the Hearing Officer who conducts the hearing may draw the parties attention to issues to be considered so that if there is a full hearing on the merits it can held expeditiously and fairly.

Some issues that may be raised are:

  • facts and evidence that may be agreed upon;
  • the dates by which any steps in the proceeding are to be taken or begun;
  • the clarification and simplification of issues in dispute;
  • disclosure and production of materials arguably relevant to the issues in dispute;
  • the number and identity of witnesses each party intends to call, and discussion of whether all proposed witnesses are necessary; and
  • the amount of time necessary to complete the hearing.

If there is no settlement, the Hearing Officer will issue an interim order. It is very important that your licensed paralegal requests certain orders that will benefit you. Orders sought should focus on having a fair, just, and expeditious hearing, or an expedition settlement of the disputes.

Reasons why a CMH can be the most important hearing in a Landlord and Tenant Board case are:

The CMH is the place you and your paralegal can learn more about the application. Discussions at a CMH usually include specifics of matters only touched upon in the application(s). A good legal representative will use what they hear at a CMH to help them in preparation for a full hearing on the merits.

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.

This is the only hearing where you have a chance early in a proceeding to try to settle the case, before you spend more time and money preparing for a full hearing on the merits.

The CMH Hearing Officer may give general information on how the Residential Tenancies Act applies to the application. The Hearing Officer cannot give legal advice.

The winning party after a full hearing before a Board Member needs to be aware that the losing party may file a Request to Review with the LTB or an appeal with the Divisional Court. An appeal is outside the scope of services a licensed paralegal is trained and permitted to represent. It can be very expensive to hire a lawyer to fight an appeal.

Full hearings on the merits can take an hour, several hours, or days depending on the complexity of the application, the number of witnesses, and the amount of relevant documents.  You may have to wait around all day just for your hearing to start. Full Hearings are very stressful. A good settlement allows both parties to walk away a little unhappy.

The winning party represented by a lawyer or a paralegal at a full hearing on the merits usually does not get any representation costs awarded to them.

Costs, other than filing fees are generally only awarded when a party’s conduct in a hearing was unreasonable. See LTB Interpretation Guideline 3 for more information.  

It is difficult to get witnesses to voluntarily attend a full hearing. People may say they will be witnesses now, but they might change closer to a hearing. You can request that the board issue a Summons to force a witness to attend and testify. That will cost time and money.

Do you need representation at Case Management Hearing or any stage of a Landlord and Tenant Board proceeding, Hire Marshall Yarmus, of Civil Litigations. He is an expert at LTB representation. He is seen most often at Toronto North, Toronto South, Toronto East, Central East – Mississauga, and the Newmarket locations of the Landlord and Tenant Board.  Call 416-229-1479 or visit our website at  https://www.civilparalegal.com/our_services/landlord-and-tenant-board/

WHAT SHOULD A LANDLORD DO IF THEIR TENANT IS NOT PAYING RENT DURING THE COVID-19 PANDEMIC?

It is important that your application gets into the LTB queue as soon as possible as the queue for LTB hearings was already very backlogged before this Covid-19 situation began. Ideally, LTB applications should be processed in a month, but it was already taking 2 – 3 months to get a hearing date. Now, it will be much longer.

Due to the extraordinary COVID-19 situation, many tenants are having trouble with their finances. In light of this, the provincial government has suspended the Ontario Landlord Tenant Board holding eviction hearings until further notice. The only exceptions to this order are matters related to an urgent issue such as an illegal act or serious impairment of safety.

If a tenant has not paid their April rent, the first action the landlord should take is to contact the tenant to ask why the rent was not paid.

Has the tenant’s income severally dropped? Did the tenant lose their job?

You should inquire if the tenant will be automatically receiving or applying for any of these government benefits:

•Employment Insurance

•The new Canada Emergency Response Benefit available for application starting Apr 6, 2020

•An increase in the Canada Child Benefit in May 2020

•The Special Goods and Services Tax payment payable on April 9, 2020

•Increased access to Employment Insurance Sickness Benefit

See https://www.canada.ca/en/department-finance/economic-response-plan.html

Be careful not to harass your tenant. You should document or note any conversations you have had with the tenant about how they will pay rent during this time.

If the tenant is making the effort to pay all or part of their rent, and is availing themselves of government initiatives, a landlord should try to work with the tenant.

If your tenant is deliberately refusing to pay rent, refusing to work with you, or refusing to provide you information on their financial circumstances and the government benefits they have applied for, you should immediately apply to the Landlord and Tenant Board (LTB) for an eviction hearing.

It is important that your application gets into the LTB queue as soon as possible as the queue for LTB hearings was already very backlogged before this Covid-19 situation began. Ideally, LTB applications should be processed in a month, but it was already taking 2 – 3 months to get a hearing date. Now, it will be much longer.

Our office continues to help our landlord clients by serving N4 notices and issuing L1 non-payment of rent applications with the Ontario Landlord and Tenant Board. 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://www.civilparalegal.com/our_services/landlord-and-tenant-board/

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

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

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

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/ 

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/

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

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/