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/ 

Eviction at the LTB for Landlord’s or Purchaser’s Own Use

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

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

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

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

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

(a) advertises the rental unit for rent;

(b) enters into a tenancy agreement in respect of the rental unit with someone other than the former tenant;

(c) advertises the rental unit, or the building that contains the rental unit, for sale;

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Small Claims Court Ontario Motion to Set-Aside Default Judgment

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

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

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

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

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

 

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

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

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

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

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

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

“Setting Aside Noting of Default by Court on Motion

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

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

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

 

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

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

 

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

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

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

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

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

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

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

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

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

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

See details on my website.

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

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

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

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

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

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

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

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

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

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

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

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

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

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