Common Landlord and Tenant Ontario Myths Part 2

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.

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/ 

COMMON LANDLORD AND TENANT MYTHS IN ONTARIO PART 1

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 www.CivilParalegal.com

Crisis at the Landlord and Tenant Board (LTB)

 

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

Template of a letter to Minsiter

Below is a template of a letter I sent to the Attorney General, Minister of Housing, Premier and others. Feel free to copy and send to these people along with your own MPP.

 

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

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

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.

When to Use a Request to Review

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 one of to the 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/

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.

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

 

 

 

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.

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

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.

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

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. 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.

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