What Major Changes to the Residential Tenancies Act were made under Bill 184?

Bill 184 (Protecting Tenants and Strengthening Community Housing Act, 2020) was passed by the Ontario Legislature on July 21, 2020. The bill made many changes to the Residential Tenancies Act. Some of the changes to the RTA went into effect immediately upon passage of the bill, while other changes came into effect on September 1, 2021.

There are too many changes to the RTA to list them all here. This is a list of the most important changes currently in effect that I want my landlord clients to know about.

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

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

Here are the sections of the Residential Tenancies Act whose major changes are already in force:

  • Section 49.1(1)(2)

If an N12 Notice for Purchaser’s Own Use was given to the tenant after July 21, 2020, the landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant.

  • Section 52(2)

If an N13 Notice for demolition or conversion to non-residential use was given to the tenant after July 21, 2020, and the building contains fewer than five residential units, the landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant. This section applies if the demolition was not ordered to be carried out.

  • Section 54(3)(4)

This section applies if:

  • an N13 Notice for major repairs requiring vacant possession and a building permit was given to the tenant after July 21, 2020;
  • the building contains fewer than five residential units;
  •  the tenant does not give notice to the landlord before vacating that the tenant is exercising their right of first refusal to move back in after repairs are made;
  • the major repair was not ordered to be carried out.

The landlord must pay compensation to the tenant equal to one month’s rent, or offer the tenant another apartment suitable to the tenant.

However, if the tenant does give notice before vacating that they plan to move back in after the repairs are completed, than the landlord shall pay the tenant the lessor of one month’s rent or the period the apartment was under repair or renovation.

  • Section 55.1

If the landlord gives a notice of termination for landlord’s own use, purchaser’s own use, for renovation and repair, conversion to no residential use, or for demolition, any compensation the landlord is required to pay the tenant must be paid by the termination date set out in the notice of termination.

  • Section 78(1)(3)(4)(7)(12)

Section 78 allows a landlord to apply to the board for an eviction order, without a hearing being held if the landlord had previously applied to the board for an eviction order, and the board ordered that there would be no eviction if the tenant met certain conditions. The tenant failed to meet one or more of the conditions, and the order of the board permitted the landlord to apply for an eviction order under section 78 if the tenant failed to one or more of the conditions.  

These amendments deal with the section 206.  Now a landlord can also apply for an order evicting the tenant if the tenant fails to meet the conditions in the Payment Plan filed with the board.

  • Section 82(1)(2)(3)(4)

At a non-payment of rent hearing a tenant is entitled to raise any issue that could be raised in an tenant’s application (e.g.: maintenance, harassment,) as if they had filed an application and paid a filing fee to the board.

 This new section now requires the tenant to give to the landlord and the Landlord and Tenant Board written notice of their intent to raise issues which could be raised if a tenant’s application had been filed. The proposed rules require the tenant to give a written description of each issue the tenant plans to raise, and to serve a copy of the issues and of all evidence the tenant plans to rely on at least five business days before the hearing.

 However, the tenant may still be able to proceed with their claim if the tenant provides a satisfactory explanation to the board why they were unable to comply with this requirement.

  • Section 83(6)

The Landlord and Tenant Board is required on all eviction applications to use its discretion based on all the circumstances disclosed at an eviction hearing to determine whether it would be fair to delay or deny an eviction.

The new section deals with non-payments of rent applications where the rent owed in whole or in part is during the COVID-19 period starting on March 17, 2020. The Board is now required to consider whether it would be fair to delay or deny an eviction based on whether the landlord has attempted to negotiate an agreement or payment terms with the tenant.

  • Section 135.1

If a tenant pays an illegal rent increase for 12 consecutive months, and if the tenant does not make an application to the board challenging the illegal rent increase within 12 months of the date of the increase, then this rate becomes the legal rent payable.

This section applies to an illegal rent increase made before or after July 21, 2020, provided the board validity of the rent increase was not determined by the board prior to July 21, 2020.

This section removes the loophole that once an illegal rent increase was made, the tenant could dispute the lawful rent being charged years later.

  • Section 194(1)

The board always had mediators on site to assist the parties, if they voluntarily chose to speak with a mediator, to try come to their own solution to the application before the board.

This amendment now permits the board to order the parties to attend mediation or another dispute resolution process. Mediation may be forced upon the parties.

Section 206

If the landlord has filed an L1 application (non-payment of rent) with the Landlord and Tenant Board, and the landlord and the tenant agree in writing to a payment plan signed by all the parties on how the arrears are to be paid, this may be filed with the board in advance of the scheduled hearing. If filed, the board may order a payment plan without holding a hearing. If this happens, then no eviction will be ordered.

The agreement may include payment of the arrears of rent, NSF cheque fees incurred, and NSF administrative fees, payment of the LTB filing fee, and future rent that will become due during the period that the rent arrears are being paid off. 

The board will issue an order that will contain a section 78 clause. If tenant fails any make payment as set out in the signed agreement, the landlord may within 30 days of that breach file an L4 application with the board setting out which terms were breached. The board may order an eviction without holding a hearing.

Alternatively, a landlord may file a request to reopen the application and have a hearing, even if a section 78 clause was included in the order.

A landlord or a tenant may file a request to reopen the application within 30 days of the L1 payment plan order being made alleging the other party coerced them or deliberately made false or misleading representations which had an effect on the agreement and the order issued as a result of the signed payment agreement. 

 Section 238(1)

The Rental Housing Enforcement Unit of the Ministry of Housing investigates and prosecutes contraventions of the Residential Tenancies Act.

The maximum fines for individuals (landlords or tenants) found guilty increases to $50,000.00. This is up from $25,000.00.

The maximum file for corporate landlords found guilty increases to $250,000.00. This is up from $100,000.00.

***************************

Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

What Changes were made to the Residential Tenancies Act Effective September 1, 2021?

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

On September 1, 2021 amendments to the Residential Tenancies Act under Bill 184 went into effect.

Landlords awaiting hearings who know they gave a notice of termination in “bad faith” for landlord’s own use, purchaser’s own use, or for demolition, conversion, or major repairs and renovations should beware. You should be scared of sections of the new sections of the Residential Tenancies Act, if you have a case before the board.

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

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

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

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

Section 57(3) (8)

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

This section applies even if the tenant suffered no actual out of pocket damages.

Section 57.1(2)(2.1)(2.2)

A Tenant given a Notice of Termination (N13) as the landlord intents to make major repairs or renovations to the apartment, has the right of first refusal to move back into the apartment when the major repairs or renovations are completed. If the landlord refuses to allow the tenant to move back in this amendment will allow a tenant apply to the board up to two years after vacating. If a tenant has already applied to the board between one and two years after vacating, the application will be allowed to proceed.

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

Section 71.1(1)(2)

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

Section 71.1(3)(4)

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

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

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

Section 72(3)(4)

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

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

A landlord is now allowed to apply to the board for a money judgment for non-payment of rent up to one year after the tenant vacated. The tenant must have vacated on or after September 1, 2021.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The section applies even if the damage to the apartment or residential complex occurred before September 1, 2021.

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

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

Section 189.0.1

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

A landlord can apply for an order for another form of service, but the landlord must show that they have attempted to serve the former tenant at the tenant’s current address first.

In some cases, a landlord may serve a former tenant by email. If a landlord is permitted to serve the former tenant by email, the landlord must also prove the tenant received the email.

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

Section 191(1.0.1)

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

***************************

Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

When Should You Serve a Notice of Termination on your Tenant?

Every application to the Ontario Landlord and Tenant Board seeking to evict a tenant must start by serving the tenant with a Landlord and Tenant Board approved Notice of Termination.

There is currently a backlog at the Landlord and Tenant Board of six months or more to get a hearing date.

With that in mind, you should serve a notice of termination on your tenant on the first possible day to do so.

For example, if rent is due on the first of the month, and it the rent is not paid, I recommend serving the N4 Notice of Termination on the tenant of the second day of the month.

***************************

Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters. We are now representing at hearings all over Ontario.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

When Should you Request to Expedite a Hearing?

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:
a. the length of the delay, and the reason for it;
b. any prejudice a party may experience;
c. whether any potential prejudice may be remedied;
d. whether the request is made in good faith; and
e. any other relevant factors.”

With the backlog at the Landlord and Tenant Board, all landlords would like an expedited hearing to allow them to evict their tenant quicker at the Ontario Landlord and Tenant Board.

The LTB is receiving lots of requests for an expedited hearing from people who clearly do not qualify.

You should only file a Request to Shorten Time if you meet the eligibility requirements set out in Landlord and Tenant Board Rule 16.4  

“The following factors may be considered in deciding requests to extend or shorten any time requirement under the RTA or these Rules:

  1. the length of the delay, and the reason for it;
  2. any prejudice a party may experience;
  3. whether any potential prejudice may be remedied;
  4. whether the request is made in good faith; and
  5. any other relevant factors.”

A Request to Shorten Time may only be made once per file. If you do not meet the eligibility requirements at the time of filing your application you may be better off waiting to file the Request to Shorten Time. Your circumstances may change, and the Request to Shorten Time could be made later.

***************************

Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343)600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Is there a requirement to offer a payment plan during Covid-19?

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

Due to the extraordinary COVID-19 situation, many tenants are having trouble with their finances.

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

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

You should inquire if the tenant will be automatically receiving or applying for government benefits.

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

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

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

A new section of the Residential Tenancies Act, section 83(6), now requires the Board on all non-payment of rent applications during COVID-19 to consider whether to delay or deny an eviction based on whether the landlord offered the tenant a payment plan.

The offer of a payment plan should not to be confused with a rent reduction. A rent reduction done improperly, can have severe consequences for the landlord.

It is important that your application gets into the LTB queue as soon as possible as the queue for LTB hearings was already very backlogged before Covid-19 began.

***************************

Paralegal Representation

Every day our office receives calls from landlords wanting to hire me for LTB matters.

If you need to hire an experienced, licensed paralegal, contact me:

Marshall Yarmus
Civil Litigations
(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Should You Settle At A Landlord Tenant Board Hearing?

At the start of an LTB hearing session, the board member will highly recommend that the opposing parties volunteer to meet with a trained, impartial mediator, to help them reach a settlement agreement. Even though the word “settle” implies accepting something that is not the best, in a landlord and tenant dispute, a settlement may be the best option for resolving the dispute. Sometimes, it is the only option!

To avoid an eviction order being granted in a hearing, a tenant may be willing to attempt a settlement through mediation. The landlord and tenant can create a conditional agreement where the tenant agrees to meet a condition, or else be evicted.

For example, if the Notice of Termination alleges that the tenant, contrary to the lease agreement, smokes in the apartment, the tenant can consent to an agreement containing the condition that, for the next year, they will not, nor will they allow anyone else to smoke in the apartment, or else be evicted.

A settlement agreement can be made legally enforceable by the Consent Order of a Board Member, if it contains a condition that relates to the Notice of Termination served on the tenant. The order must state that the condition is subject to section 78 of the Residential Tenancies Act.

In mediation, the landlord and tenant can agree to discuss:

  • any issue in the tenancy, and not just those in the current application,
  • terms that are contrary to the Residential Tenancies Act, that, the RTA does not permit the board member to impose
  • remedies, that, although legal, the RTA does not permit the board member to enforce 

The only restrictions that the parties must follow are:

  • A rent increase more than 3% per annum above the permitted annual guideline increase is not permitted.
  • EVERYTHING discussed in the mediation is CONFIDENTIAL!

In a hearing, when making a decision, the board member can consider:

  •  only the issues contained in the application and/or Notice of Termination. (Exception: in a non-payment of rent application, the tenant’s issues can be added. Explained in more detail later)
  • only the terms that comply with the RTA 
  • only the remedies that the law allows the LTB to impose and enforce.

Since a landlord and tenant can create terms and remedies in their agreement that are broader than those the board member has the power to impose or enforce, this gives them a better chance of creating a win-win scenario for both parties. 

If the parties cannot come to an agreement in mediation, their hearing will not be cancelled. In the hearing, you are not permitted to share anything discussed in the mediation with the board member.

************************************************************

Reasons Why You Should Seriously Consider Doing a Settlement 

Attempting a settlement can save you from the risks that going into a hearing exposes you to AND it can give you advantages that a hearing cannot.

Risk of the Hearing Not Being Called or Completed on the Scheduled Date 

The order in which the cases are called is at the discretion of the board member. Generally, it is withdrawals, settlements, adjournments, and then hearings where only one party is present, and then hearings where both parties are present.

Since some applications take hours to resolve, there is a risk that your case might not get called or not be completed on that hearing date.

Currently, it will take months to get another hearing date for your case. The time and expense of this risk might not be worth it.

Risk of Dismissal Due to a Critical Error

In the hearing, the board member will review the Notice of Termination. If it contains a critical error, it is mandatory for the board member to declare the Notice of Termination invalid and dismiss the application.  A simple mistake could become very costly!

Critical errors found on notices include:

  • an improper representative (e.g. real estate agent, a property manager that deals with multiple properties.)
  • not all tenants are listed
  • not all landlords are listed
  • inadequate identification of the rental apartment (e.g. unit number, basement apartment missing)
  • the wrong rental period 
  • the wrong termination date
  • insufficient details describing the problem that triggered the application, and specific date and time it occurred
  • incorrect amount of rent owing
  • improper method used to serve the Notice of Termination
  • failure to pay any  mandatory compensation by the specified date 
  • and more

You should consider consulting an experienced paralegal to prepare your Notice of Termination and application.

If you have already submitted a Notice of Termination that contains a critical error to the LTB, other than withdrawing your application and starting over again, a settlement is the only option. Hiring a paralegal to represent you in a settlement negotiation may save your application from a mandatory dismissal in a hearing. Board members usually ignore a flawed Notice of Termination when they are told the parties have reached an agreement.

Risk of Dismissal on Every Eviction Application Due to the Landlord Violating the Tenant’s Rights

It is mandatory that the board member deny granting the eviction if the tenant can prove that:

the landlord is in serious breach

  • of the landlord’s responsibilities under the RTA, (e.g. seriously failed to repair or maintain the property)
  • of a term of the lease or tenancy agreement,

OR

the landlord filed for an eviction order because the tenant:

  • complained to a governmental authority about the landlord’s violation of a law dealing with health, safety, housing or maintenance standards
  • has or is attempted to secure or enforce their legal rights
  • has children occupying the rental unit. (Occupation by children is not overcrowding.) 
  • is organizing or is a member of a tenants association

If a landlord believes that the tenant might raise any of these issues, they should attempt to reach a settlement rather than risk a mandatory dismissal of their application in a hearing.

Risk of Dismissal Due to Insufficient Evidence

If you lack enough documentary evidence, such as emails, letters, photos, receipts and bank statements or all of the witnesses necessary to testify before the board to prove your case, it will get dismissed in the hearing.

Risk of Eviction Not Being Granted

The conduct of a tenant / their occupiers / guests:

  • damage to the property
  • interference with the reasonable enjoyment of others on the premises 
  • safety, cleanliness 
  • harassment 
  • overcrowding 
  • persistent late payment of rent 
  • non-payment of rent etc.

may lead to an eviction application being brought against the tenant. 

For a landlord who wants to maintain the tenant, it makes sense to attempt to reach a settlement agreement. Often, when the landlord and tenant develop an agreement together, they work out an agreement that would be more to their liking than the one the board member may impose on them.

In a hearing, the board member must be as fair as possible to both parties in making a decision. Rather than grant an immediate eviction, the board member may instead issue a conditional eviction order to give the tenant a chance to avoid getting evicted.

The tenant will be ordered to stop the specific,  undesired conduct, mentioned in the Notice of Termination, for one year, or else be evicted. If there was willful or negligent damage to the apartment, the board member may also order financial amends be made for that conduct. 

For a persistent late and/or incomplete payment eviction application, the tenant must immediately become up-to-date with the rent, and continue to pay the total rent on-time each month, or else be evicted.

For a non-payment of rent eviction application, the board member may issue a pay-and-stay conditional eviction order. If the tenant pays the rent owed according to a payment plan that the board member imposes, they can stay on as a tenant. The tenant must continue to pay the total rent on-time each month, but they will be given 11 days, or more, to pay the past rent owed, and or else be evicted. 

If the tenant succeeds in complying with all of the conditional eviction order, for one year, they cannot be evicted under the current application. (Another incident of poor conduct, after the one year period would require another application process.)

Risk of Tenant Bringing An Application in a Non-payment Eviction

Under Section 82 of the RTA, in a hearing, a tenant is allowed to raise issues against the landlord. They are not required to submit an application or pay a fee to the LTB to raise their issues. A tenant can give the landlord as little as 5 days notice their intention to raise issues. 

Their allegations may include, but are not limited to:  the collection of an illegal deposit or fee, an illegal rent increase, illegal entry, harassment, interfering with the tenant’s reasonable enjoyment of the unit, and maintenance or repair issues.

Many of these allegations can lead to the landlord being ordered to pay money to the tenant, which can be used to offset the rent owing, and may also require the application to be dismissed entirely.

Advantage of Ability to Offer Incentives to Vacate

When a tenant owes money for unpaid rent or undue property damage, a settlement negotiation may persuade the tenant to willingly vacate the apartment.  Rather than risk an eviction not being granted in a hearing, a landlord may offer to waive all, or part, of, the money owed to persuade the tenant to vacate. The risk involved in keeping a troublesome tenant often is too great to not consider this advantageous option.

Advantage of Ability to Add Other Issues to the Application

If at the time that the application was filed, issues were missed or if new issues developed after it was filed, the opposing parties can agree in a settlement negotiation to settle all of the issues that both the landlord and the tenant have with the tenancy.

This opportunity, for either party to have all of their issues dealt with,  would not be possible in the limited forum of a hearing, since the only issues the board member can consider there are those raised in the current application. A settlement would erase the cost and frustration of fighting future applications.

Advantage of Decreased Chance of a Successful Outcome getting Reversed

A settlement has a much lower chance of being challenged than a hearing decision in your favour does. Even if you receive an order in your favour, the opposing side may attempt to get the outcome reversed by filing a Request for Review with the LTB and/or file an appeal with the Divisional Court. The order you received will be not permitted to be carried out until the case is reviewed or resolved.

If the case is taken to Divisional Court, you will wait months, even a year to get a hearing date. Also, you will need a lawyer to represent you in this lengthy legal process.

************************************************************

If a landlord does not attempt a settlement negotiation, they will face risks in a hearing that could lead to a dismissal of their application, possible penalties being brought against them, a less appealing payment plan imposed upon them by the board member, and the costly possibility of a challenge to their favorable outcome.

Rather than wasting time waiting for a hearing to get the same result: the end of offensive behaviour, on-time rent payments, repayment of rent owed, financial amends for damages, it is worth trying to come to a settlement agreement.

************************************************************

Settlement Agreements and Consent Orders

If the landlord and tenant come to a consent agreement:

  • the mediator will write out a Mediated Settlement Agreement, and have the parties sign it and give each a copy of the agreement. (The LTB will not keep a copy.)

OR

  • The mediator will take the agreement and the parties to the hearing room. The board member, if needed, will interrupt a lengthy hearing in session to write out a Consent Order.

Things to note about a Consent Order:

  • The board member is allowed to include in the Consent Order only the terms and conditions in the agreement which are permitted by the Residential Tenancies Act.
  • Only the terms or conditions that relate to the Notice of Termination served will be enforceable.
  •  Any terms or conditions that are not part of the current Notice of Termination will not be enforceable; if the tenant does not meet these terms or conditions, there is no legal penalty that the LTB can enforce for their failure to do so.

An example of a condition that is allowed on a Consent Order, but is not enforceable: “When the tenant vacates, they will leave the apartment in a broom-swept state.” This condition is not forbidden by the RTA, so it is allowed to be included in a Consent Order. However, since it is not a condition that a board member is permitted to impose, this condition is not legally enforceable.

An example of a term that is not allowed on a Consent Order: “The tenant will be responsible for paying 15% of the cost of maintenance of the apartment.” Since in the RTA, the landlord is always responsible for maintenance of the apartment, the board member would not be permitted to include that term in the Consent Order.

************************************************************

Settlement Breach

If a tenant breaches a Mediated Settlement Agreement or Consent Order by doing the same prohibited behavior within the next 12 months, the landlord can, within 30 days of that breach, without notice to the tenant, return to the Landlord and Tenant Board and complete a Application to End a Tenancy and Evict a Tenant – Tenant Failed to Meet Conditions of a Settlement or Order (L4-B form). In most cases, the board will issue an eviction order without holding a hearing.

*********************************************************** 

Paralegal Representation

Having an experienced paralegal who knows:

  •  the law, the RTA
  • the case law the board member must follow,
  • the wider options you have in a settlement versus the limited options in a hearing,
  • the risks you may face in a hearing
  • how to skillfully create a well-crafted settlement agreement that can be a win-win situation for both parties
  • how to get a legally enforced consent order to protect you and

     will save you time and expense, stress and frustration.

Every day I receive calls from landlords wanting to hire me for LTB representation and advice. I have 25 years of experience as a paralegal.

If you need to hire an experienced, paralegal, contact me:

Marshall Yarmus

Civil Litigations

(416) 229-1479 or (343) 600-7722

https://civilparalegal.com/home_services/landlord-and-tenant-board/

Evicting a tenant in Ontario has gotten harder

Residential landlords have fewer rights in Ontario since the 2018 Rental Fairness Act passed, making changes to the Residential Tenancies Act.

Residential landlords have fewer rights in Ontario since the 2018 Rental Fairness Act passed, making changes to the Residential Tenancies Act.  Some of the changes include:

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

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

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

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

The law has changed to give a former tenant more rights. If a tenant moved out because they received the proper form stating that as the landlord or their family member planed to move in, and the landlord or their family member didn’t move in, the tenant can file an application.  At the hearing it is now the landlord’s onus to prove that the notice to vacate was given in “good faith.” Previously it was the tenant who had to prove bad faith.

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

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

Our office receives calls everyday from landlords looking to hire me for representation or legal advice.

If you need to hire an experienced paralegal, contact me:

Marshall Yarmus

Civil Litigations (416)-229-1479 or (343) 600-7722 https://www.civilparalegal.com/our_services/landlord-and-tenant-board/

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

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

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

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

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

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

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

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

A Writ of Seizure and Sale of lands filed in the jurisdiction where the debtor lives or carries on business also acts as lien against the person or company’s name. If another creditor is able to locate money or assets of the debtor, and the money comes into the hands of the sheriff, you are entitled to an equal portion of the money just by filing this Writ of Seizure and Sale of Lands.

This equal distribution of the money the sheriff receives is paid out pursuant to the Creditor’s Relief Act.

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

If you are collecting a money judgment ordered by the Landlord and Tenant Board, you will need to know a current residential address for the former tenant. The judgment must be transferred to the small claims court in the area the tenant now livs.

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

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

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

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

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

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

This has been a brief overview of the major judgment enforcement options. There are many books that have been written about the art of judgment enforcement. This is not intended to be legal advice.

If you need help collecting your judgment, contact Marshall Yarmus at (416) 229-1479 or (343) 600-7722 or visit our website at http://civilparalegal.com/home_services/judgement-enforcement/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Our paralegal firm, Civil Litigations has 24 years experience we can help you. Our phone number is 416-229-1479. Our website is CivilParalegal.com

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

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

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

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

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

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

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

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

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

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

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

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

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

Suing a Contractor is often Complicated

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

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

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

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

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

Disputes that I see in the Toronto Small Claims Court, Richmond Hill Small Claims Court, Brampton Small Claims Court, include the contractor just abandoning the job part way through. This is especially true when the contractor is paid a large portion of the fees upfront.

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

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

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

How can an Ontario paralegal help you?

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

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

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

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

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

The services Ontario paralegals are permitted to offer include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Offers to settle properly made under rule 14.07 may attract double cost consequences of failure to accept.
If you hire a paralegal Ontario to represent you at trial where the amount claimed is $35,000.00, you may be entitled to a representation fee of 15% of $35,000.00 being $5,250.00.

If you make an offer to settle in accordance with Rule 14.07 and are successful at trial that $5,250.00 may be doubled to $10,500.00 in costs awarded in your favour.

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

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

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

If you are requesting costs you will need to cite the specific act, rule, or the case law that allows for it.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Small Claims Court Ontario Motion to Set-Aside Default Judgment

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

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

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

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

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

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

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

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

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

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

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

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

“Setting Aside Noting of Default by Court on Motion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See details on my website.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) to expedite the disposition of the action;

(c) to encourage settlement of the action;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Elusive Representation Fee at the Landlord Tenant Board Ontario

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

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

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

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

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

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

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

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

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

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

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

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

Serving another party in a way which was not appropriate;

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

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

When to Use a Request to Review

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

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

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

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

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

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

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

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

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

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

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

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

Examples of serious errors are:

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

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

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

New Evidence

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

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

civillitigations: eviction, landlord tenant boardCivil Litigations, Landlord and Tenant Board, landlord tenant act Ontario, Marshall Yarmus, Ontario paralegal

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

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

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

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

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

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

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

Section 5(1)(2) sets out when a claim is discovered.
“5 (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.

Eviction at the LTB for Landlord’s Own Use

Effective September 1, 2021, a tenant can sue a former landlord who gave a “bad faith” N12 notice or the equivalent, for up to 12 months of rent which they were paying as general damages. The tenant does not need to prove they suffered any out of pocket loss.

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

Good Faith Intention to Move In

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

T5 Application 

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

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

(a) advertises the rental unit for rent;

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

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

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

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

Effective September 1, 2021, a tenant can sue a former landlord who gave a “bad faith” N12 notice or the equivalent, for up to 12 months of rent which they were paying as general damages. The tenant does not need to prove they suffered any out of pocket loss.

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

Landlord’s Own Use and N12 Form

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

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

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

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

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

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

Relief from Eviction

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

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

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

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

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

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

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

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

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

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

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

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

civillitigations: October 28, 2018eviction, L2, landlord tenant board, N12Eviction, Landlord and Tenant Board, landlord tenant act Ontario, Ontario paralegal

Common Landlord and Tenant Ontario Myths Part 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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

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

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

First N5 Form

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

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

Landlord’s Lawful Rights

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

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

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

Notice

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

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

(b) set out the grounds for termination; and

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

Notice void if tenant complies

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

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

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

Second N5 Form

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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

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

Eviction For Persistent Late Payment of Rent

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

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

N8 Form and L2 Application

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

Failure to Provide Enough Details in the N8 Form

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

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

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

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

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

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

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

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

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

Eviction in Ontario is a Last Resort

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

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

“Circumstances Justifying Discretionary Refusal

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

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

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

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

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

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

Why you should hire an Ontario Paralegal?

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

Paralegals are more affordable than lawyers 

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

Paralegals are qualified and licensed

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

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

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

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

Most paralegals specialize in representing in only certain courts or tribunals

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

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

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

Paralegals carry errors and omissions insurance to protect you

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

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

Paralegals pay into a compensation fund

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

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

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

Paralegal Representation

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

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

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


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

Notice of Examination

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

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

Judgment Against a Corporation

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

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

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

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

What can you ask a Debtor?

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

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

(a) the reason for nonpayment;

(b) the debtor’s income and property;

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

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

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

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

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

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

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

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

“Order As To Payment

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

Enforcement Limited while Order as to Payment in Force

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

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

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

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

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

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

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

Paralegal Representation

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

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

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

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

It may not be enough.

Application Dismissed for Technical Reasons

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Relief from Eviction

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

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

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

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

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

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

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

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

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

Witness Letters

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

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

Paralegal Representation

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

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

Common Landlord and Tenant Myths in Ontario – Part 4

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

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

A Tenant can vacate the apartment whenever they want without consequences

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

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

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

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

A landlord is not permitted to accept rent payments in advance

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

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

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

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

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

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

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

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

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

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

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

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

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

Myth: At least most of the time.

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

Section 26(3) of the RTA states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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

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

You can rely on his 23 years of experience.