Blog

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.

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.

 

Common Landlord and Tenant Myths in Ontario – Part 4

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

A Tenant can vacate the apartment whenever they want without consequences

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

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

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

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

A landlord is not permitted to accept rent payments in advance

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

 

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

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

 

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

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

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

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

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

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

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

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

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

 

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

Myth: At least most of the time.

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

Section 26(3) of the RTA states:

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

Paralegal Representation

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

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

 

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. 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/

 

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

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

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

Notice of Examination

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

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

Judgment Against a Corporation

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

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

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

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

What can you ask a Debtor?

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

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

(a) the reason for nonpayment;

(b) the debtor’s income and property;

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

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

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

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

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

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

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

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

Order As To Payment

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

Enforcement Limited while Order as to Payment in Force

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

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

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

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

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

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

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

Paralegal Representation

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

 

 

 

 

 

 

Why you should hire an Ontario Paralegal?

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

 

Common Landlord and Tenant Myths Part 3

 

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

Eviction For Persistent Late Payment of Rent

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

N8 Form and L2 Application

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

Failure to Provide Enough Details in the N8 Form

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

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

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

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

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

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

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

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

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

 

Eviction in Ontario is a Last Resort

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

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

“Circumstances Justifying Discretionary Refusal

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

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

 

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

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

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

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

 

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

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

 

 

 

Common Landlord and Tenant Ontario Myths Part 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralegal Representation

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