This week I have been asked a couple of times how one goes about getting the money that the Landlord and Tenant Board has ordered someone to pay. There is a bit of surprise on the part of many people when they discover that the Landlord and Tenant Board may order a person to pay money to another person but when the person fails to pay--absolutely nothing happens. The fact is, the non-payment of an Order or a Judgment does not cause the government--Federal or Provincial---to do anything. There is no "office" that is in charge of making sure that people pay what they are ordered to pay.
The task of making sure that an Order of the Landlord and Tenant Board is complied with falls to the person who won. So, if you are the landlord and the tenant has been ordered to pay you a sum of money (for rent arrears, damages, costs, or any other reason), and the tenant has failed to pay, it falls to you to actively pursue the payment of the money. Otherwise nothing will happen.
The same is true for tenants. If you have obtained a judgment against your landlord for the payment of money, for whatever reason, and the landlord refuses to pay, you must take active steps to collect the judgment. Otherwise, absolutely nothing will happen.
So what are these steps? To answer this question I will make one significant assumption. That assumption is that you went through the process at the Landlord and Tenant Board and you have an Order from the Board that requires the opposing party to pay you money (for whatever reason).
Presuming that you want to try to enforce the Order yourself (as opposed to hiring a collection agency to collect your judgment), you will be taking the Order that you have, from the Landlord and Tenant Board, to the nearest Ontario Superior Court of Justice Small Claims Court. The reason for this is that the Residential Tenancies Act does not have any built in enforcement mechanisms for its judgments. To enforce an Order under the Residential Tenancies Act (even for eviction), you take the order to the Court for enforcement.
Money orders at the Landlord and Tenant will be for sums under $25,000 as this is the maximum jurisdiction of the Board. It also happens to be the same maximum monetary jurisdiction as the Ontario Small Claims Court. As such, I recommend that you enforce your money order through the small claims court as it is simpler (and cheaper) than enforcing it through the higher levels of the Superior Court of Justice (though you may do so if you wish).
Talking in big picture terms, what you will be doing with your Landlord and Tenant Board Order is that you will be converting it to a judgment of the Ontario Small Claims Court. Once you've done that, you will enforce the Judgment in the same way that you enforce a Judgment of the Small Claims Court (i.e. garnishment, writ of seizure and sale, debtor examination, etc.). Once you complete the conversion of the Order to a Small Claims Court judgment you will need to educate yourself on the mechanisms of enforcement as none of these things happen automatically either.
The conversion process is basically a paper shuffle. You will need to have an original copy of your Landlord and Tenant Board Order and you will need to take it to the Small Claims Court counter. There you will pay a small fee and you will then get a new Small Claims Court file number and the Board Order will be recognized as a Small Claims Court Judgment. Once that is completed you will need to decide how you want to enforce the Small Claims Court Judgment and then there will be a number of other forms to fill out in accordance with your decision. For example, if you decide to issue a garnishment to the tenant's employer, you will need to fill out the garnishment forms as set out under the Rules of the Small Claims Court. My point here is that the enforcement process are now under the Rules of the Small Claims Court and not pursuant to any Rules of the Landlord and Tenant Board or the Residential Tenancies Act.
Enforcement of Judgments is a tedious and time consuming task. Often, the debtor (person who owes you money) is difficult to find, broke, or hiding their assets. To be successful in debt collection you will need to be patient, do some detective work, and frankly have a little bit of luck. If this doesn't sound like something you would do, consider hiring a collection agency to pursue the Judgment for you as they will do all of the work for a percentage of the Judgment.
Michael Thiele, Lawyer
Sunday, 28 April 2013
You won! Now (how to) collect the money
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