Guest Contributor: Should paralegals be allowed to practice in family court?

If you are involved in a family court case in Ontario and cannot afford a lawyer, should you have the option of hiring a paralegal? Justice Annemarie Bonkalo was tasked by the attorney general and the Law Society

If you are involved in a family court case in Ontario and cannot afford a lawyer, should you have the option of hiring a paralegal? Justice Annemarie Bonkalo was tasked by the attorney general and the Law Society of Upper Canada to study this issue and write a report.

The Family Legal Services Review report was recently released. It makes a number of recommendations to improve access to justice in family court. The most controversial of the recommendations was that licensed paralegals in Ontario should be able to obtain a specialized licence to be permitted to represent in family court on certain matters.

There are currently over 8,000 paralegals in Ontario licensed by the law society. Most work independent of lawyers. These are the people you call to fight traffic tickets, as well as to represent you in small claims court, at the landlord and tenant board, in criminal court for certain offences and at other tribunals.

The report states that 57 per cent of people go unrepresented in family court as they cannot afford a lawyer. Yet, they make more than the poverty wages required to qualify for legal aid.

The response to this report by some lawyer organizations and even some judges was predictable. They would have you believe that family law is too complicated for paralegals. Paralegals don’t have the education necessary to represent in court. Paralegals should be supervised by lawyers.

First and foremost, paralegals and the judge who wrote the report just want the people of Ontario to have access to justice. This issue is too important to you for there to be a turf war between lawyers and paralegals.

Paralegals currently provide services in many courts and tribunals. We deal with complex laws and their interpretation every day. Family law would be just one more area to learn and apply the laws.

The lawyer groups are correct that paralegals do not have the education today to work in family court. Courses still need to be developed. Stringent specialized licensing tests still need to be prepared. The lawyers who are specialists in the field should be involved in making sure that the course materials set a high bar for paralegals who want to practise family law. We want to provide you affordable access to justice, but not for the sake of a low quality education.

There are places in Canada and the United States where paralegals operate only under the supervision of lawyers. That has never been the model in Ontario. Paralegals have operated independent of lawyers for decades. They have been regulated and licensed since 2008.

The benefit to the consumer of a paralegal working independent of a lawyer is that the consumer does not receive a lawyer’s hefty bill for work done by a paralegal. It would defeat the intended increased access to justice if paralegals were required to work on family law matters under the supervision of a lawyer. New lawyers are permitted to appear in family court without the supervision of a senior lawyer.

The Ministry of the Attorney General and the law society are developing an action plan as a result of the Family Legal Services report. The action plan will be released by the fall of 2017. You are invited to send feedback based on Justice Bonkalo’s report no later than May 15 to commentsflsr@lsuc.on.ca 

Published March 30, 2017  Copied from Windsor Star

Guest Contributor: Should paralegals be allowed to practise in family court?

Do’s and don’ts of small claims court

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court.

Is small claims court now too complicated for the average person to represent himself or herself? Many people’s only interaction with the civil courts in Ontario will be through small claims court. Currently you can sue for money damages of up to $25,000 or the return of personal property not exceeding that amount. Ontario small claims court bears no resemblance to American television shows. The judge does not take an active role in questioning witnesses. You do.

Cases can be won or lost based on your ability to effectively question the opposing side’s witnesses. Small claims court is far less complicated than the Ontario Superior Court of Justice. But that may be of little comfort to the litigant who is trying to go through the steps of bringing an action to trial, obtain judgment and successfully collect their money. At the courthouse, many people can be seen clutching court forms, trying to navigate their way through the system. The court clerks can only give general information on procedures, not legal advice.

When cases become too complicated, people and companies often hire a licensed paralegal or a lawyer to represent them. They are the experts at navigating this mine field.

At the first hearing of a defended claim, the parties meet in front of a deputy judge or mediator to try to settle the case. At this settlement conference judges sometimes urge a person with a complicated case to hire a paralegal or lawyer. Trials are measured in hours, a day, or multiple days. The formal procedures for hearing evidence, marking documents as exhibits and questioning witnesses take far longer than what is seen on so-called reality court television shows.

Dr. Julie Macfarlane released a report on self-represented litigants in 2013.In it she found, unsurprisingly, that the majority of litigants who decide to self-represent do so because they cannot afford representation. Another reason for people self-representing was that they were attracted to the do-it-yourself approach. Many believed they could handle the case themselves because so much information was available on the Internet.

But a losing party at trial has more to worry about than paying the opposing side’s representation fee. A self-represented party can lose a case in large part due to not knowing how to properly present it to the judge. This requires calling the necessary witnesses, asking them the right questions, knowing what to ask witnesses appearing for the other side, presenting the relevant documents and summarizing the law and the facts to the judge.

Many people know they can hire a lawyer but many don’t know licensed paralegals can represent them in small claims court.

Those who choose to self-represent against a seasoned paralegal or lawyer are at a severe disadvantage. Many people think success in small claims is easier than the reality.After almost every trial there is one party who is unhappy. Settlement should be encouraged at every stage of the action.

The problem is not the court system. The rules and procedures are there to make sure the process is fair. But litigants need to understand that when a case becomes too complicated to represent themselves, they should hire a legal professional. Finally, the smartest and happiest litigants are usually those who compromise and come to a settlement before trial.

January 7, 2016  Copied from http://torontosun.com/2016/01/07/dos-and-donts-of-small-claims-court/wcm/a3946a31-7e95-44c7-aa5a-faba31f407ee

Proposed Changes to the Residential Tenancies Act

The Ontario government is seeking written submissions until the June 30, 2016 on proposed changes to the Residential Tenancies Act. The RTA effects every residential landlord and tenant; particularly those who have evictions applications

The Ontario government is seeking written submissions until the June 30, 2016 on proposed changes to the Residential Tenancies Act. The RTA effects every residential landlord and tenant; particularly those who have evictions applications heard in the provincially run Landlord and Tenant Board.

The proposed changes are made with intention of encouraging small landlords to provide rental housing. The proposal can be found at  http://www.mah.gov.on.ca/Page14837.aspx

Tenant groups are up in arms, stating that the proposed changes would make it too easy for a tenant to be evicted. Will newly appointed Minister of Housing Chris Ballard, follow though under the criticism of these tenant groups and makes changes favouring small landlords?

The current RTA puts too many obstacles in place for a landlord to evict a tenant. I believe some changes are necessary. I am a licensed paralegal with 20 years experience representing at the Landlord and Tenant Board.

The RTA is so complex and confusing for small landlords. With an eviction of a tenant being so important, and so much money on the line if an eviction is denied, I don’t understand why some small landlords represent themselves at the Landlord and Tenant Board. Understanding the RTA, case law, knowing what evidence is relevant, and how to properly ask questions of the opposing side and their witnesses is a skill which takes years to learn.

The large scale landlords know the law. Still, they always hire a licensed paralegal or lawyer to represent them at the hearing.

An application to evict a tenant at the LTB can be dismissed for technical reasons. Some notices of termination given to tenant must have very detailed information with dates and actions of the tenant noted in order to support an eviction. Other reasons applications are dismissed are due to minor errors such as failing to name all the tenants, as well as failing to enter an apartment number on the form.

One of the proposals the government is seeking writing submissions on is to further clarify provisions for substantial compliance with the RTA with respect to the content of certain forms, notices and other documents.

The notices of eviction are not complicated to complete. I can see why landlords think it is simple enough to do themselves. The test is whether the notice of eviction is filled out with enough information to comply with the RTA and the case law. If not, the board member must dismiss the eviction application.

If the proposed changes are made, maybe I won’t have as many small landlords coming to me for representation after their application is dismissed for failure to properly complete the notice. When an application is dismissed for these technical reasons at least I can help the landlord.

When a landlord self-represents and the application is dismissed after a full hearing as they did not have enough evidence, didn’t know how to ask questions the tenant, or didn’t know the law, I am limited in the help I can provide. I can request a review of the decision by another arbitrator at the LTB if there was a serious error in making a decision. If that is unsuccessful, usually the landlord’s only other option is to hire a lawyer to file an appeal with the Divisional Court. An appeal can take many months and thousands of dollars before it is heard.

Another common problem is cases involving an eviction where the landlord or a close family member requires the apartment for their own use. The law is clear. The person who wants to live in the apartment must file an affidavit with the board. If you show up at the hearing without this affidavit, your application will be dismissed.

The government is looking at a proposal to allow landlords and tenants to file unsworn statements in support of applications and motions, rather than affidavits.

At a hearing for non-payments of rent a tenant can without any notice to the landlord, raise issues as if they had filed their own application. Some of the more common allegations are the landlord entered my unit illegally, the landlord harassed me, and the landlord failed to make repairs. If the tenant is successful at proving these allegations, not only must the board consider delaying or denying an eviction, but the board can also order the landlord to pay money to the tenant for these breaches of the RTA.

The government is seeking submissions on a proposal to require tenants to disclose any issues that they intend to raise at rental arrears eviction hearings to the landlord prior to the hearing. This would prevent these surprise arguments.

These are just a few of the ideas the government is considering to improve the eviction process. Unless or until these changes are made to the RTA, the best advice I can give any small landlord is to hire a licensed paralegal to represent them at any LTB hearing.

Published June 22, 2016  –  copied from http://myhomepage.ca/proposed-changes-residential-tenancies-act/?publication=condolife

Paralegals able to help during court matters

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $25,000 or less. The court also has the power to order return of property not exceeding that value.

  • Published in the The Intelligencer (Belleville)
  • 14 Jun 2016
  • MARSHALL YARMUS — Marshall Yarmus is a licensed paralegal specializing in small claims court. His company, Civil Litigations, operates in Toronto.

Individuals and businesses use the small claims court to sue for money owed for a wide variety of reasons where the amount owing is $25,000 or less. The court also has the power to order return of property not exceeding that value.

The government just announced starting a new court action can now be done online for all types of claims province-wide, through a secure government website.

The Ontario government wants to make the court more accessible, by offering this new online filing service. However, just because it is easier to file documents doesn’t mean the small claims court procedures are easy to navigate.

Many people attempt to represent themselves in the small claims court. They have that ‘do it yourself’ attitude. They mistakenly believe the small claims court is like American courtroom reality television. Nothing can be further from the truth. Forms must be filed correctly. Procedures must be followed. A trial in Ontario looks nothing like television.

Court staff can give you general information procedures on how to complete forms, but they are not supposed to give legal advice.

This doesn’t stop people from asking court staff for legal advice when the case becomes complicated. A staff member may even give advice which they shouldn’t. Since court staff are not legally trained, the advice given, although well meaning, may be wrong. Unless the person gets professional legal advice the error may prove costly.

When your case becomes complicated, or you need someone who has knowledge of the rules of the court, the evidence and witnesses needed, and the particular law concerning the facts of your case you should turn to a licensed paralegal or a lawyer.

Ontario is the only jurisdiction in North America where a paralegal is a trained and educated professional, who is licensed, insured, and regulated. Paralegals are authorized to provide legal services directly to the public. A paralegal in Ontario can represent you with your legal matter by offering you legal advice, filling out forms, and representing you at trial in certain courts (including small claims court) and tribunals.

The small claims court process starts out by completing and issuing a Plaintiff’s Claim. The party being sued must file a defense with the court within 20 days of service. If this is done, the matter will be scheduled for a settlement conference before a judge or a mediator. This, in my opinion, is the most important hearing. Selfrepresented litigants may not recognize its significance.

A judge at a settlement conference has the power to make a number of orders, including dismissing a claim which has no merit, and to order the opposing side to produce documents which helps your case. If you don’t know to ask the judge to make a specific order, this may hurt your case.

The settlement conference is a great opportunity to allow the parties to come to an agreement on their own. It is a much better outcome than having a trial judge impose a decision. You could go to trial and get an order the other side owes you money. It is then up to you to collect through the process available through the court.

If the case is not settled, you will end up at trial. Here, you must present your case to the judge in an organized and understandable manner. Licensed paralegals and lawyers who specialize in small claims court representation know how to prepare a case for trial. They know how to question the opposing side’s witnesses. Cases are often won or lost based on this skill which can take years to learn properly.

Do you have a general question about small claims court procedures? Fax or e-mail your questions to info@getlegal-resultsca 1-877-931-1011. The best questions will be answered in the next edition of this article.

Questions commonly posed to paralegals

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale

In this article I will address some frequently asked questions paralegals who specialize in small claims court representation receive.

I have a judgment. How do I collect my money?

The small claims court does not collect a judgment for you. You must take steps to collect. There are four methods available through the court. They are: writ of seizure and sale of lands, a writ of seizure and sale of personal property, a garnishment and a judgment debtor examination. How much information you have on the debtor will determine which is the best method for your case.

A writ of seizure and sale of lands effectively acts as lien against real estate owned by the debtor. You are allowed to force the sale of the property. However, the cost to you to do that is so much that forcing a sale is rarely pursued.

A writ of seizure and sale of personal property is, in my opinion, a last resort. The sheriff is not allowed to enter a person’s home to seize anything. In the case of an individual debtor this method is usually restricted to seizure and sale of a car. To seize a car you will need to do searches to prove the debtor owns the car outright. It cannot have a lien against it. The sheriff will want between a $1,000 and $3,000 deposit before seizing and selling a car.

A garnishment is a court order forcing either an employer, a bank, or a company who owes money to be a business debtor for accounts receivable to pay the money to the court. If you have the necessary information, this is the best tool to force payment of the judgment.

A judgment debtor examination allows you to ask almost any questions of the debtor regarding their past, present and future ability to pay. Used properly by someone who knows what to ask this is powerful method to collect information to help you enforce the judgment. However, since debtors don’t always show up for the scheduled hearing, you should only use this if you don’t have information on the debtor.

How much does a paralegal charge for a small claims court case?

Like every profession, different people charge different rates. You usually get what you pay for. The lowest priced paralegal may not be the best choice. Some of the factors paralegals consider in determining their price are: their years of experience, whether they specialize in that area, the difficulty of the matter and importance of the matter to the client, and special circumstances, such as the loss of other retainers, postponement of payment, uncertainty of reward, or urgency.

Paralegals may charge based on an hourly rate, a flat fee for a particular portion of the case or the entire case, or on a contingency basis.

An hourly fee seems straight forward. However, small claims court cases often do not proceed as planned. There could be unexpected motions to the court, an amendment of a claim or defence, the need to defend a claim by brought by the Defendant, or more than one settlement conference.

In a flat fee also known as a block fee arrangement, the paralegal may take the risk by changing a known and agreed fee in advance that unexpected things don’t happen that require more of their time than expected.

A contingency fee is where a paralegal’s fee is based on a percentage of the amount recovered from the debtor. The paralegal is entitled to request the client pay the out of pocket expenses in advance. Since the paralegal is taking the risk here and delaying payment of any fees until money is recovered, you could pay the most fees though this method.

North York paralegal ‘excited’ services could expand to include family law

A North York based paralegal is ‘excited’ that his seven-year fight to have his profession be allowed to offer some family law services to clients is one step closer to fruition.

A North York based paralegal is ‘excited’ that his seven-year fight to have his profession be allowed to offer some family law services to clients is one step closer to fruition.

The Law Society of Ontario, which regulates lawyers and paralegals, voted last month to commit to develop a special license which would support training for paralegals in dealing with some family law services.
“I’m excited,” said Marshall Yarmus of Civil Litigations Paralegal Services. “Finally – it’s been seven years working at this.”

The special licence will support training in navigating the court process, form completion, investigating forms such as financial, motions to change, and uncontested divorces, and possibly other areas outside the courtroom, he said.

“(Family law) is the one area I get the most phone calls about,” said Yarmus, a paralegal for the past 21 years who currently works near Bathurst Street and Lawrence Avenue. “People can’t afford lawyers or can’t afford to keep lawyers on their case.”

The Dec. 1 decision followed a report from the former chief justice of the Ontario Court of Justice, who was tasked by the law society and the Attorney General to consider whether a broader range of service providers could deliver certain family legal services.

The report prepared by Justice Annemarie Bonkalo noted 21 recommendations, including a special licence to allow paralegals to provide certain types of family legal services such as custody and simple divorces without property.

In 2014 to 2015, more than 57 per cent of Ontarians did not have legal representation in family court, according to the Law Society of Ontario.

Currently, paralegals can act in small claims court, on non-criminal provincial offences, in criminal matters where the maximum penalty doesn’t exceed six months in prison and/or a $5,000 fine, and before administrative tribunals.

Details remain vague and a timeline has not been set, but Yarmus estimates it will be a “couple years” before paralegals are allowed in family court, adding he’s in favour of specialized licenses.

“If we can pass the special test, then we should be allowed (to deal with family law),” he said.

by Fannie Sunshine
Fannie Sunshine is a reporter for Metroland Media Toronto

https://www.insidetoronto.com/community-story/8038272-north-york-paralegal-excited-services-could-expand-to-include-family-law

Published in the North York Mirror January 16, 2018

GUEST COLUMN: Paralegals in family court

It only took seven years of fighting with the Law Society of Upper Canada to get it to take the first steps towards allowing paralegals to offer some family law services.

BY MARSHALL YARMUS, SPECIAL TO THE SUN

It only took seven years of fighting with the Law Society of Upper Canada to get it to take the first steps towards allowing paralegals to offer some family law services.

The Law Society is the regulator of lawyers and paralegals in Ontario.
It is required to regulate in the public interest and to facilitate access to justice.

Most people wouldn’t pick a fight with their regulator; an organization that has the ability to suspend or revoke their licence.

I am not like most people.

On Dec. 1, 2017, the Law Society’s board of directors approved an action plan which included developing a specialized licence for paralegals with appropriate training to offer some family law services.

This licence will support training in such areas as navigating the court process, form completion, investigating forms, motions to change, uncontested divorces and possibly other areas outside the courtroom context.

At the same time, the Law Society will assess what additional family law services paralegals can offer, including advocacy inside the courtroom, and consider how to develop a further expanded licence.

What led to this announcement?

I and other paralegals were receiving calls from people who had family law disputes, but did not have the money to hire a lawyer.
In 2010, I scheduled a motion to be heard at the Law Society’s annual general meeting.

It asked the Law Society to study the barriers to allowing paralegals to offer some family law services.

I debated family law lawyers on this issue on radio and television.

Ultimately, the motion was withdrawn prior to being heard based on a commitment to study the issue.

In February, 2011 the elected leader of the Law Society announced she would undertake a study to determine if paralegals should be allowed to do family law work.

Only one report was released before the initiative was abandoned.

In 2013, I again led a group of paralegals who scheduled a motion to be heard at the Law Society’s annual general meeting.

Hundreds of lawyers showed up to oppose this non-binding vote, only to find the motion had been withdrawn hours earlier.

Since 2013, I have written a number of newspapers articles criticizing the Law Society for failing to address this issue.

Some family lawyers argued family law was too complicated for paralegals to handle.

They said paralegals could handle small claims court, landlord and tenant board and provincial offences cases, and represent people in other courts and tribunals, but not family law where the stakes were too high.

In 2016, the Attorney General and the Law Society appointed Justice Annemarie Bonkalo to study the issue and write a report.

Justice Bonkolo made 31 recommendations to improve the family court system, including having paralegals with a special licence being allowed to prepare forms and do some family court advocacy work.

Following Justice Bonkalo’s report the Law Society and the Attorney General began to develop an action plan.

The Dec. 1, 2017 approval of this action plan marked the beginning of the path towards the public having an option of legal providers for family law matters.

It will take time to develop the curriculum and train paralegals in family law.

However, I am proud to have been one of the main motivators for the Law Society to address this lack of access to justice issue.

Yarmus is a licensed Toronto paralegal at the firm Civil Litigations.

GUEST COLUMN: Paralegals in family court

Published in the Toronto Sun January 6, 2018

Paralegals in family law

The former vice president of the Paralegal Society of Ontario says the Law Society of Ontario let down the public when it took on responsibility for regulating paralegals in the province only to ban them from practising in the area of family law.

Legal Report \ Family LawMarch 19, 2018|Written By Michael McKiernan

Paralegals are poised to have more of a role in family law disputes despite resistance from the bar.

For Marshall Yarmus, the end of a decade-long journey is finally in sight.

The former vice president of the Paralegal Society of Ontario says the Law Society of Ontario let down the public when it took on responsibility for regulating paralegals in the province only to ban them from practising in the area of family law.

Unsatisfied by the lack of progress on the issue, he instigated public campaigns urging the regulator to complete the job it started in 2007. In 2010 and 2013, Yarmus transformed the traditionally sleepy annual general meeting of the LSO into essential viewing events for the profession as part of a team tabling motions to expand the scope of paralegal practice to include family law.

Both motions were ultimately withdrawn at short notice in exchange for assurances of further study, but it wasn’t until December 2017 that Yarmus felt his efforts were finally vindicated. That was when benchers of the LSO committed to the creation a special licence for paralegals to offer limited services in family law, including process navigation, form completion and uncontested divorces.

In addition, the regulator’s governing body endorsed a plan to study what other services should come under a further expanded licence, including the possibility of courtroom advocacy by paralegals, as part of its response to the Family Legal Services Review by former Ontario Court Chief Justice Annemarie Bonkalo.

“One of the reasons I started this campaign was because I kept getting calls from litigants looking for services at a lower price, so I’m excited that we’re finally going to get access to justice for people with family law problems who can’t afford a lawyer,” says Yarmus, who runs Toronto-based Civil Litigations Paralegal Services.

“This time it’s actually going to happen. The law society and the attorney general are determined to implement this, and people will at last have a choice of legal service provider,” he adds.

Although he hasn’t yet decided whether to personally train up in family law once the new licence is available, Yarmus says he supports the move to mandate extra requirements before paralegals can begin practising in the area.

“Education is very important. We don’t want anyone who’s unqualified to be doing it,” he says.

But as paralegals inch toward regulated family law practice, a group of familiar foes stands in their way: the family law bar. Many lawyers in the area argue that anything short of a law degree is inadequate preparation for the complexities of family law.

Orillia, Ont. lawyer Fay McFarlane says the law society is making a mistake by giving paralegals an entryway to family law.

“It may be disastrous. Even us, as family law practitioners, have issues sometimes dealing with clients and their emotions,” she says. “I don’t think paralegals can handle it.

“If they had the training that lawyers have, maybe they could, but that’s why we’re lawyers,” McFarlane adds.

“Family law is complicated enough, but I don’t know how you can solve the problems associated with that by lowering the standards for people to be able to practise,” says David Harris-Lowe, president of the Simcoe County Law Association and partner at Barrie, Ont. firm Barriston Resolution Services.

He says the LSO proposal won’t directly affect him because his family law clients are unlikely to consider hiring paralegals even if they had the option.

“I recognize that there is an element of self-interest, at least to some lawyers,” Harris-Lowe says. “But when I hear that judges are saying this is a problem, that’s more concerning to me, because they don’t have that self-interest. Their interest is in having cases resolved fairly and expeditiously in the court system.”

Members of Ontario’s family law bench upped the volume of their objections after Bonkalo’s March 2017 report recommended paralegals be allowed to provide legal services, without supervision by lawyers, in the areas of custody, access, simple child support cases, restraining orders, enforcement and simple divorces without property.

A program of lawyer supervision would have no impact on the access to justice crisis in family law, she wrote, adding that “only licensed and independent paralegals can offer meaningful competition to lawyers.”

Despite initially favouring a blanket ban on courtroom appearances by paralegals in family law matters, Bonkalo explained that her mind changed during the consultation process.

“As I continued to explore the issues and hear from different communities, it became clear to me that precluding paralegals from appearing in court would be a disservice to clients,” she wrote, noting that demand for help among unrepresented family law litigants peaks when they are called to appear in court.

Provincial Court Justice Marion Cohen voiced her concerns with Bonkalo’s conclusions to the Toronto Star, warning that “paralegals will squeeze the lawyers out and the quality of justice in the Ontario Court of Justice will suffer” if they are implemented.

In his submission to the LSO, Justice George Czutrin, a senior judge of the Superior Court’s family branch, said it was “unfortunate” that Bonkalo’s report gave so little weight to the concerns “experienced [by] family justice participants,” adding that allowing paralegals to provide family law advice was not the answer to challenges in the system.

“In fact, it is much more likely to cause its own set of problems without adding real value,” Czutrin wrote.

Kavita Bhagat, a family lawyer in Brampton, Ont., says any attempt to hive off parts of family law as acceptable for paralegals to practise is doomed to failure because of the dynamic nature of disputes. In any case, she says, Bonkalo’s report put too little emphasis on alternative methods of dispute resolution.

“Paralegals are attractive to the attorney general because it’s a very easy solution to propose,” she says. “But it’s also a Band-Aid solution that ignores the real problems of family law.”

At the law society, Howard Goldblatt, chairman of its access to justice committee, won’t be tied down to any deadline for implementing the new paralegal licence or reporting back on its possible future expansion. But the process will give paralegal critics another chance to make their case.

“We want to ensure that those who have views and voices are heard,” he says. “Ultimately, the law society’s job is to regulate in the public interest, and that is what will prevail, as opposed to any stakeholders on either side of the debate.”

Julie Macfarlane, a law professor at the University of Windsor and director of the National Self-Represented Litigants Project, says Ontarians are lining up to use paralegals in family law. She’s frustrated both by the glacial pace of developments and the arguments of family lawyers, which she calls “elitist.”

“There has been a lot of bad talk about paralegals, which I think is unfair. It seems disingenuous to suggest that nobody but lawyers can do this work,” Macfarlane says.

Still, she’s puzzled by the vociferousness of the bench’s opposition to Bonkalo’s recommendations.

“I would have thought that it would be better for them to have someone representing a party than nobody,” Macfarlane says.

“The underlying problem is the culture that says lawyers have to have their hands around everything. There’s a tremendous resistance to loosening the grip,” she adds.

Even in jurisdictions that have embraced family law paralegals more openly, Macfarlane says, there is evidence of lawyers and law societies inhibiting their progress.

For example, the Law Society of B.C. allows designated paralegals to offer family law services under the supervision of a lawyer. However, the law society was forced to abandon a pilot project allowing paralegals into the courtroom when only three lawyers took advantage of the rule by sending paralegals under their supervision before a judge over a two-year period, producing insufficient data for assessment.

Michele Ross, a designated paralegal at Quay Law Centre in New Westminster in B.C. who was one of the few paralegals to make it into court as part of the project, says it was a missed opportunity.

“Some lawyers would benefit from some education about what we can do and how we can help clients save money,” she says.

Macfarlane says there are Ontario family lawyers who support a bigger role for paralegals, but she worries they feel forced into silence because of the overwhelming consensus against them.

In Vancouver, Leisha Murphy, partner at Connect Family Law, feels no such pressure. She says her firm’s designated paralegals are well equipped to deal with many aspects of clients’ cases and would love to see the law society offering them more independence in practice.

“I prefer to go to the higher-level aspects, like the strategic direction of the file,” she says. “We need to loosen the reins. With so many people unrepresented, it’s inevitable in the long run anyway, and we as lawyers need to adjust to that reality.”

http://www.canadianlawyermag.com/author/michael-mckiernan/paralegals-in-family-law-15386/

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

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

First N5 Form

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

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

Landlord’s Lawful Rights

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

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

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

Notice

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

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

(b) set out the grounds for termination; and

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

Notice void if tenant complies

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

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

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

Second N5 Form

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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

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

Common Landlord and Tenant Myths Part 3

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

The Residential Tenancies Act (RTA) only applies if you have a written lease

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

 Landlords can include a “not pet” provision in the lease

Myth: A no pet provision in a lease is void. Section 14 of the Residential Tenancies Act states:

No pet” provisions void                       

14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.  2006, c. 17, s. 14.”

However, case law dealing with condominiums have found otherwise. If the tenant lives in a condominium, the landlord must provide the tenant a copy of the condominium corporation’s declarations and by-laws. If the condominium corporation has made a declaration or by-law that there are no pets allowed in the entire building that may be enforceable against a tenant as it is against ever unit owner in the building.

A landlord can arbitrarily refuse the subletting or assignment of a tenancy

Myth: The RTA permits a tenant to sublet or assign their lease. The tenant must request permission from the landlord to do so; however the landlord cannot unreasonably refuse the sublet or assignment request.

These terms subtenant and subletting are often misused by landlords and tenants in Ontario. Section 2(2) of the Ontario Residential Tenancies Act (RTA) defines subletting as:

2(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,

(a) the tenant vacates the rental unit;

(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and

(c) the tenant has the right to resume occupancy of the rental unit after that specified date.  2006, c. 17, s. 2 (2).

Section 97(4) and (5) of the RTA state:

Consequences of subletting

(4) If a tenant has sublet a rental unit to another person,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy.  2006, c. 17, s. 97 (4).

Overholding subtenant

(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy.  2006, c. 17, s. 97 (5).

If the landlord rented the apartment with an “As is” clause in the lease the tenant cannot complain about maintenance issues which existed before they moved in.

Myth: Section 3 of the RTA states the act applies despite any waiver or agreement to the contrary.  Section 20(1) and 20(2) of the RTA state:

“Landlord’s responsibility to repair

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.  2006, c. 17, s. 20 (1).

Same

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.  2006, c. 17, s. 20 (2).

The Human Rights Code does not apply to Ontario tenancies covered by the Residential Tenancies Act

Myth: Every landlord has a duty to accommodate a tenant’s code related ground, such as a disability, to the point of undue hardship. To do so the tenant must advise the landlord of disability, and seek accommodation from the landlord.

Even if the tenant does not tell the landlord about the disability, the landlord cannot be willfully blind. If a disability is obvious, the landlord will be considered to have constructive knowledge of it and therefore should have attempted to address the issue with the tenant prior to taking steps to evict the tenant.

Landlord’s obligations to accommodate under the Human Rights Code are complicated. This is just an overview of the law.

See Landlord and Tenant Board Interpretation Guideline 17 for more information.

Interpretation Guideline 17 states in part:

Relief from eviction

In Walmer Developments v. Wolch15 the Divisional Court held that the Ontario Rental Housing Tribunal (now the Board) must consider and apply the Code when exercising its authority to grant relief from eviction. A Member considers such relief pursuant to section 83 of the RTA. Section 83 states that the Member must have regard to all the circumstances to determine whether it would be unfair to refuse the landlord’s eviction application or postpone the enforcement of the eviction order.

If the Member determines that the landlord has failed to accommodate a tenant covered by one or more of the categories contained in subsection 2(1) of the Code up to the point of undue hardship, the Member must consider relief from eviction in accordance with clause (a) of subsection 83(1) of the RTA. However, even if relief is granted, the Member may still consider whether other types of conditions and requirements should be ordered to address the conduct or problem at issue. The authority to make such orders comes from subsection 204(1) of the RTA.

My lease has expired. My tenancy is now on a month to month basis. Terms of the expired written lease no longer apply

Myth: At the expiry of a written lease the tenancy continues on a month to month basis indefinitely on the same terms and conditions contained in the written lease. Evictions based on behavior of the tenant that are contrary to the written lease can still be the subject of an eviction application to the Ontario Landlord and Tenant Board (LTB).

Landlord and tenant applications to the LTB can be complicated. Even cases that start out as straight forward can become complicated at a hearing. Whether you are a landlord or a tenant bringing or defending an application at the Landlord and Tenant Board your best weapon to hire an experienced licensed, trained, and insured Paralegal Ontario.

Paralegal Representation

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

Landlord and Tenant Board

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

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/

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.