Which is the Proper Venue to File my Ontario Landlord and Tenant Dispute?

The Residential Tenancies Act outlines which landlord and tenant disputes fall under the jurisdiction of the Landlord and Tenant Board (LTB).

The LTB has the exclusive jurisdiction to decide such matters. Any issues not covered in the Residential Tenancies Act (RTA) as being in the LTB jurisdiction must be decided by a different appropriate court. While most landlord and tenant disputes are resolved by the LTB, depending upon various circumstances, not all are. Therefore, it is critical to know which court or tribunal is the correct venue in which to initiate your claim.

If you file in the wrong venue, the court or board will dismiss your case if they do not have the jurisdiction to resolve it.

By the time you are made aware that you have filed in the wrong venue, the timeframe to submit an application to the proper venue may have expired and you will be left with no legal recourse.

Below is an example illustrating how different circumstances affect the determination of the correct venue to apply to if a landlord is submitting an application for rent owed or damages to an apartment.

If the application is initiated while the tenant is living in the rented property, it should be done though the Landlord and Tenant Board.

A similar application submitted after the tenant has vacated the premises should be done though the Small Claims Court. (However, a recent case presented below has put this long-standing practice into question.)

Note that for any landlord or tenant claim exceeding $35,000 (the current monetary jurisdiction of both the Landlord and Tenant Board and the Small Claims Court,) the proper venue for the application is the Superior Court of Justice.

In addition, if you choose to have legal representation by a paralegal, they can represent you in a LTB or Small Claims Court case but not in a Superior Court case. You would need a lawyer in that venue.

Determining whether to sue in the Landlord and Tenant Board or in Small Claims Court is often not as simple as it first appears to be.

If you are contemplating self-representing yourself, you risk having your case dismissed if you submit your application to the wrong court or board. But, if you hire a licensed paralegal or a lawyer, and they incorrectly advise you to sue in a court or tribunal that does not have the jurisdiction to hear your case, you are protected from their negligence by the errors and omissions insurance they are required to carry. (See www.lso.ca  for more information.)

Note, also, that only a small number of lawyers in private practice deal with landlord and tenant matters on a regular basis. So, many are quite inexperienced with LTB cases.

Hire an experienced, licensed paralegal to increase your odds of obtaining a successful outcome, and to save you time, money and frustration.

I list a number of cases below pertaining to landlord and tenant disputes that were dismissed for being in the wrong jurisdiction.

In particular, 3 significant court decisions can assist a party in determining the proper venue to file a claim: [1] Mackie, [2] Efrach.) and [3] Kiselman.

[1] Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801 (CanLII) http://canlii.ca/t/2bf5v

The tenants residing in a community housing project brought a class action claim against the corporation to compel it to carry out repairs needed on the premises. 

Even though the LTB has the jurisdiction to hear disputes regarding a landlord’s obligation to maintain the premises in a proper state of repair, the tenants attempted to characterize the repair claims more broadly as negligence and breaches of the Ontario Human Rights Code and the Charter of Rights and Freedoms.

They took their claim to the Superior Court of Justice which determined that:

“It is, therefore, my opinion that the Board has exclusive jurisdiction to resolve the Plaintiffs’ repair claims. Further, it is my opinion that characterizing the claims as a negligence claim or as an Ontario Human Rights Code or Charter claim does not infuse the Superior Court with jurisdiction. From a jurisdictional perspective, it is the substance and not the form of the claim that matters, and the substance of the Plaintiffs’ claim is a repair claim between a landlord and tenant that is within the monetary jurisdiction of the Board.”

[2] Efrach v. Cherishome Living, 2015 ONSC 472 (CanLII), http://canlii.ca/t/gg2dv   

The apartment next door to a tenant was left unlocked. The tenant alleged that someone entered through the open door, climbed over the balcony, and broke into his apartment. He sued his landlord for negligence in Small Claims Court.

The court determined that the tenant’s claim was filed in the wrong forum, and so dismissed it. The tenant appealed to the Divisional Court. The court used the test of the essential character of the claim as done in Mackie.  The Divisional Court agreed with the Small Claims Court that the essential character of the claim (lack of maintenance) fell within the exclusive jurisdiction of the LTB, and thus dismissed the appeal.

[3] Kiselman v. Klerer, 2019 ONSC 6668 (CanLII) http://canlii.ca/t/j3g30  

Eleven months after moving out, a landlord sued his former tenant, in Small Claims Court, for rent owed, and undue damages to the apartment. The tenant made a motion to dismiss the action, arguing that the LTB had exclusive jurisdiction to deal with these issues.

The Small Claims Court deputy judge dismissed the action stating:

“….the Residential Tenancy Board is the forum to go to in a landlord/tenant dispute.  They have the expertise and the protocol to deal with these matters.”

The RTA, in sections 87(1)(b) and 89(1), clearly states that the LTB loses jurisdiction to hear a landlord’s claim for unpaid rent and undue damages after a tenant has vacated the apartment.

The landlord appealed to the Divisional Court. The Divisional Court, unbelievably, agreed with the deputy judge that the Small Claims Court lacked the jurisdiction to hear the case.

On November 19, 2019, the Divisional Court released the Kiselman decision. This decision will, for the foreseeable future, make it difficult for a landlord to determine the proper venue in which to sue a former tenant after they have vacated the apartment.

Also, since this case was decided by the Divisional Court, it is binding on Small Claims Court deputy judges and Landlord and Tenant Board members to follow the ruling of the Divisional Court.

So, a landlord suing a tenant after they have vacated the premises, needs an experienced, paralegal familiar with case law to persuade the court or board that they are not required to follow the Kiselman decision.

[4] Fei Hu v Lee, 2016 CanLII 78566 (ON SCSM), http://canlii.ca/t/gvmv3

Two weeks before the termination of a tenancy, a tenant and landlord made an oral agreement to split the cost of replacing flooring damaged by the tenant’s dog. It was agreed that the landlord would repay their part of the repair cost shortly after the end of the tenancy.

The tenancy ended on April 30, 2015.The former landlord found a cheque they had received from the tenant post-dated for February 2015. On May 4, 2015, they deposited that cheque.

The tenant sued the landlord in Small Claims Court for theft; for conversion of funds that took place after the tenancy ended, and for the money owed for the split repair costs.

The Small Claims Court considered whether the cashing of the cheque could be characterized as an illegal retention of money under section 135(1) of the RTA.

The court determined that section 135(1) would apply only if the cheque had been deposited during the tenancy. Since the transaction took place after the tenancy had ended, the LTB did not have exclusive jurisdiction to decide the case (The deposited cheque was later revealed to be an erroneous duplicate payment cheque for February.)

In regards to splitting the cost of the floor repair, even though the agreement was made during the tenancy, the landlord’s obligation to pay did not commence until after the termination of the tenancy.

Given the circumstances in the case, and since the court was not aware of any application the former tenant could make to the LTB, it was determined that the Small Claims Court retained jurisdiction.

 [5] Fraser v. Beach, 2005 CanLII 14309 (ON CA) http://canlii.ca/t/1k8v3

The neighbors of an illegal rooming house, by way of an injunction, sought the eviction of the tenants. They made an application in the Superior Court of Justice. The Superior Court granted the injunction and ordered the eviction of the tenants.

The tenants appealed to the Ontario Court of Appeal. The Court of Appeal found the Superior Court made an error granting an eviction by way of an injunction. It set aside the eviction order finding that the authority to evict is exclusive to the LTB.

[6] Spirleanu v. Transglobe Property Management Service Ltd., 2015 ONCA 187 (CanLII), http://canlii.ca/t/ggqqr

Following an LTB eviction order, a tenant’s personal belongings were discarded.

The tenant claimed that the landlord should be liable for the wrongful disposal of his property and took his claim to the Small Claims Court and lost.

He then went before the Superior Court of Justice to re-litigate whether his property was wrongfully disposed of by the landlord.

The Ontario Court of Appeal found that, under section 41 of the RTA, a former tenant is permitted to sue at the LTB for the wrongful disposal of their belongings after an eviction.

Therefore, the jurisdiction of the civil courts was ousted.

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

From the preceding examples presented, one can see that suing in the correct court or tribunal is often not easy to determine.

You need a Landlord and Tenant Board expert, an experienced, licensed Ontario paralegal or lawyer, to determine the proper venue to bring your claim. These are just some of the cases your paralegal or lawyer should consider to prevent your claim from being dismissed.

* This blog is not intended for self-represented landlords or tenants to determine the proper court or board to bring a claim.

Paralegal Representation

Every day I receive calls from landlords wanting to hire me for LTB matters.

 If you are in Toronto or the GTA and you need to hire an experienced, licensed paralegal contact me:

Marshall Yarmus

Civil Litigations

(416) 229-1479

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

If you currently have a case before the Landlord and Tenant Board, or are in the process of filing one, please make an appointment to come in for a free consultation at https://www.civilparalegal.com/appointment/

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

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.

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

The Art of Cross-Examination for Small Claims Ontario and the Landlord Tenant Board Ontario

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

I have called cross-examination an art. Others call it a science. Either way to do it properly takes years of practice. After twenty-two years in business I am still learning new techniques.

Your ability or that of your Ontario paralegal to ask questions of the opposing side’s witnesses can be the difference between winning or losing your case.

Cross-examination is a tool that is only as good as the person wielding it. An experienced paralegal knows how to ask questions to obtain the answers helpful to their client.

The self-represented party who has little or no experience in court often does not know about the amount of preparation necessary to be good cross-examiner. They don’t know the skills necessary to elicit the answers needed.

Before we go further you must know the purposes of cross-examination. This tool is used to poke holes in the evidence of the opposing side’s witness. It is also used to gain admissions from the opposing side’s witnesses that strengthen your case.

Cross-examination is used in small claims court Ontario and the landlord and tenant board. It is also used in other courts and tribunals.

Do you need to ask questions of every opposing witness? No. The less seasoned legal representatives may feel pressure to ask questions of every witness. There is no need to cross-examine a witness that has not said anything to harm your case, and who has nothing to offer that would help your case.

Another novice problem I see is asking one too many questions. Though a carefully planned series of questions you may get a witness to admit an important fact. All can be lost if you ask one more question then necessary which allows the witness to say something that destroys your case.

How do you get the opposing side’s witnesses to admit facts favorable to your case? How do you ask questions based on documents? How do you use cross-examination to show a witness is not credible and should not be believed by the court or tribunal? How do you deal with a difficult to control witness?
There are many goods books that you can read to find answers to these questions. I recommend “Cross-Examination: Science and Techniques, 3rd edition.” However, there is no substitute for experience.

If you lack experience in cross-examining witnesses, we can help. Contact Marshall Yarmus (phone 416-229-1479 www.Civilparalegal.com) to represent you at your small claims court trial or landlord and tenant board hearing.

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.

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

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

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.