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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 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

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. 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

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 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?