Tuesday, 29 July 2014
REQUIRING POST-DATED CHEQUES IS ILLEGAL
In Ontario a landlord is not allowed to demand post-dated cheques, money orders or any type of direct debit from your bank account. The Residential Tenancies Act is the law that governs residential landlord and tenant relationships and it has specific rules about rent and how it is charged to tenants.
With respect to post-dated cheques and other types of automatic payments this is what the law says:
s. 108. POST-DATED CHEQUES ETC.-- Neither a landlord nor a tenancy agreement shall require a tenant or prospective tenant to,
(a) provide post-dated cheques or other negotiable instruments for payment of rent; or
(b) permit automatic debiting of the tenant's or prospective tenant's account at a financial institution, automatic charging of a credit card or any other form of automatic payment for the rent.
WHAT IS A POST-DATED CHEQUE?
A post-dated cheque, or what is meant by this in the contexted of landlord and tenant law is that a landlord will often ask a tenant to provide 12 cheques, all at once for the monthly rent. The cheques are post-dated, meaning each cheque is dated for the day rent is due in each of the following 12 months. The point of post-dating a cheque is that the cheque isn't "good" or capable of being cashed until the date on the cheque. Therefore the post-dating prevents the landlord from depositing all of the cheques at once.
ARE YOU ALLOWED TO PROVIDE POST-DATED CHEQUES?
Note that the language of the Residential Tenancies Act simply provides that a landlord may not "require" a tenant to provide post-dated cheques. Certainly, providing post-dated cheques can be a great convenience and be easier for both the landlord and the tenant. This is especially true in tenancies where the relationship with landlord and tenant is good. If you have provided post-dated cheques, and this is convenient to you, there is nothing wrong with having done this. If you are a landlord and you have asked for post-dated cheques there is nothing wrong with this either. The prohibition is against "requiring" the post-dated cheques as a condition of the tenancy.
Michael K. E. Thiele
Monday, 7 July 2014
Making Ontario Small Claims Court work for you
Often enough I get calls from Landlords who are very upset about the condition of the rental unit that they get back from a tenant who has moved out. Landlords describe apartments where there is writing on the walls, holes punched through drywall, appliances that have been so severely neglected that they are
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Repairs to property, replacing damaged things, cleaning and carting off garbage from a rental unit, after the tenant has vacated, can quickly add up to several thousands of dollars. Can a landlord recover these repair costs?
In short, the only answer to this question is "maybe". Whether or not these costs may be recovered requires consideration of the effort required to get the costs back and the "issues" typically associated with proving the loss.
Typically, by the time landlords are calling me about damage caused by a tenant who has already vacated, they have already tried to get the tenant to pay the damages voluntarily. Not having success in this regard, and having determined that there is no insurance coverage for the loss (note: sometimes there is, so call your broker), the only remaining option is to commence legal proceedings and sue the tenant and any guarantor to the lease.
The legal proceeding to be contemplated is typically a claim in the Ontario Small Claims Court. The small claims court has a financial jurisdiction of $25,000.00. For claims that are over $25,000 but "close" it is possible to waive the excess above $25,000 to fit into the jurisdiction of the Small Claims Court. The alternative, is to sue the tenant in the Superior Court of Justice under the Rules of Civil Procedure under either the simplified or regular Rules.
WHAT IS THE SMALL CLAIMS COURT LIKE?
The small claims court is much more formal than the Landlord and Tenant Board and there is a greater authority to deal with a broader range of claims. Almost the entire scope of the common law, including equity, and all types of damages and remedies are available in the small claims court. The Ontario Small Claims Court has contempt powers and in this sense is a Court of Record that can make orders and judgments that may lead to incarceration of people appearing before it. Proceeding in the Small Claims Court is a serious matter that can give rise to serious judgments involving substantial sums of money by the measure of most people.
Whereas the Landlord and Tenant Board is fill in the blanks "Form" focused), the Small Claims Court allows for more original drafting and requires people to more actively understand and communicate the nature of their claims. While there are still "forms" to fill out, the overall process of the Court is governed by the Small Claims Court Rules which every party before the Court should really be familiar with. While it is possible to go through the process without detailed knowledge of the procedures I think it is a fair comment to say that a litigant who is experienced and who knows the Rules and how the Court works is more likely to have success with the claim.
While the Small Claims Court is more formal than the Landlord and Tenant Board the procedures are still intended to allow for people to represent themselves. It is perfectly allowable for a person to explain the nature of their claim in regular English (or French) and leave the "law" out of it and instead rely on the Small Claims Court Judge to apply the law to the facts as presented to them. When proceeding in this way a plaintiff (person making the claim) is relying on the Judge to know the particular law that applies to the claim and for the Judge to quickly conceive the nuance and different perspectives that a consideration of all of the facts call for. This can be a very tall order for Judges who have multiple cases on their dockets, have to learn complex facts that are not being presented in a the "best" way, while still ensuring that the trial process is procedurally fair. So, while it is entirely acceptable to rely on the Judge to do the "legal" work in a case, it is advantageous to retain a lawyer to represent you.
A lawyer, in representing you in Court, has a few different functions. The function that is not often spoken about is that a lawyer is an "officer of the Court". This function imposes duties on the lawyer that the Court often relies upon in deciding a case. When a party is represented by a lawyer the Judge can focus more on the evidence being presented and worry less about whether the party is leading all of the evidence that they want to lead. A represented party will have the benefit of their lawyer's skill in presenting the essential elements and facts of the case. Aside from the facts, a represented party can take comfort in knowing that their lawyer will have considered the law before the trial and that the evidence presented in Court is the evidence that the Judge needs to apply the law to. Further, where the law is fairly nuances a lawyer can make sure that the Judge understands the law to be applied to the particular facts of the case. Another significant benefit of having a lawyer is that the lawyer will do all the talking, structure the case, decide what witnesses to call, dross examine witnesses, challenge the position of the other side and speak for the party during the course of the hearing---in a way that is helpful to the party's case.
The advantages of having a lawyer should be apparent from the foregoing paragraph. As you may imagine, if the "other side" has a lawyer who is providing this kind of service to the party opposite it would be incumbent on the other side to get a lawyer to balance out the advantage of being represented. That being said, no one is required to be represented by counsel in a Small Claims Court case and you may certainly defend yourself even if the other side has a lawyer.
SETTLEMENT CONFERENCES & TRIALS
An advantage of the Small Claims Court over regular litigation in the Superior Court of Justice is that the process is simplified and that case proceeds more quickly than regular procedure cases. After the exchange of a Claim and Defence the next step in the process (normally) is that a case is scheduled for a settlement conference. The Court will order the parties to disclose their evidence and a witness list along with will say statements (there is a Form) in advance of the Settlement Conference. At the Settlement Conference the Judge will consider both sides, get both sides to explain their positions, and try to mediate a resolution of the claim by pointing out legal issues, problems with the case, and things that might not be obvious to the parties. Settlement Conferences often result in judicially supervised settlements that get the parties out of Court without the needs for a trial.
If a Settlement Conference does not result in a settlement, the Judge at the Settlement Conference may make additional procedural orders and then order that the case may be set down for trial. Sometimes, if there are major procedural issues or evidentiary problems the parties may make a motion to the Court for remedies/relief that are required before the case can go to trial.
Trials in the Small Claims Court are definitely "real". They are adversarial and the parties are most certainly expected to try to "win" their case. It is not a session of getting together to have a discussion, nor is it a time when the Judge will hold your hand through the process doing the work for you. If you are the plaintiff (person bringing the claim), you will be expected to be ready to present your case by making an opening statement, calling and examining witnesses, entering evidence, cross examining witnesses, arguing law, while at the same time staying within the Rules and complying with the Rules of Evidence. It is a mistake to think that the Judge will elicit the evidence by asking questions, making inquiries, calling witnesses, or wait for you to get the evidence that you "left at home". A trial is not a tea party--even in the small claims court. If you fail to discharge your burden (as a plaintiff you have the burden of proof on a balance of probabilities), you might find that after you finish presenting your case that the Judge invites the Defendant to ask for a dismissal of your case without requiring the defendant to lead any evidence at all. A defendant has no obligation to help you get all the facts before the Court nor to assist you in any way. A defendant has the right to make you prove your case before the defendant starts to present his/her defence to your case.
PROPERTY DAMAGE CLAIMS in small claims court
When I am representing landlords in claims for damages to rental units there is a checklist of things that I would ideally love to have ready and available to tender into evidence. This is the list:
- A copy of the tenant's rental application;
- A copy of the tenant's identification (for proper legal spelling of their names);
- A copy of the lease;
- A copy of the rent ledger from the commencement of the tenancy to the end of the tenancy;
- A copy of any Notices of Termination served during the course of the tenancy;
- A copy of any Orders from the Landlord and Tenant Board that were made during the course of the tenancy;
- A copy of any Property Standards Orders or any other orders by any governmental agency affecting the rental unit during the course of the tenancy;
- Pictures of the condition of the rental unit at the time of the tenant moving into the rental unit;
- A Move In Inspection report (with photos is tremendous), that goes through each room of the rental unit that identifies all of the elements of each room (floor, walls, ceiling, doors, baseboards, switches, lights, appliances, etc. etc.). The report should have room for check marks indicating the condition of the individual elements--leave room for written comments---and be initialed by the tenant on at least each page--but even better beside each room. The Move In Inspection report should also mention the condition of the common areas of the building on move in and get the tenant to agree with the description (photos are great).
- A copy of any Notice of Termination, Eviction Order, Sheriff's Notice to Vacate
- A copy of a move out inspection along with photographs of the damage to the unit. Signed off by the tenant if possible. If the tenant is not signing off on the move out inspection then a written statement from a neutral third party who was present at the time that the landlord recovered the unit describing the condition of the unit;
- Three estimates for repair work to the rental unit or to the appliances and systems in the unit;
- A copy of cheques and invoices for the work done in the unit;
- A copy of invoices for replacement appliances etc..
- A copy of a demand letter to the tenant asking the tenant to pay the damages prior to commencing litigation.
If you have the evidence that is represented by the checklist you will find that the need to be represented by a lawyer or paralegal is less important as the flow of these documents tells the story of the tenancy in a chronological way and further demonstrate that the damages claimed result from the actions--negligent or willful conduct of the tenant. However, before deciding to do this yourself, consider the fact that having these documents handy will likely allow a lawyer to quote a block fee for representation that may indeed be substantially contributed to by an award of costs at the end of trial.
IF YOU DON'T HAVE THE CHECKLIST DOCUMENTS
The checklist for me represents the ideal case. Almost no cases are ideal and many of the documents in the checklist are often missing or non-existent. Where the documents do not exist you need to think about how you will get the evidence that is represented by the document on the checklist. Usually this means calling a witness and having the evidence of the "fact" presented orally. With respect to non-contentious issues such evidence is usually not a problem (for example--testifying that there was an oral lease). However, sometimes the oral evidence is highly contentious--for example stating that the rental unit was in perfect condition at the start of the tenancy. When the evidence is disputed, contentious, and pertinent to the ultimate issues in the trial the Judge may have to judge the credibility of witnesses and choose who to believe. Hence, on some points, it may be necessary to call much more evidence in support of your position if the tenant is denying the fact you are asserting as true.
The conclusion of the trial will result in Judgment. If you are successful the Court will order that the defendant owes you money, with interest and costs. If you have lost your case it is entirely possible that the Court will order you to pay costs to the defendant.
Sometimes Judgments are paid voluntarily and the case is settled. Sometimes Judgments are appealed and the litigation saga will continue. When the Judgment is neither paid nor appealed then the next step will be to enforce the Judgment through the enforcement provisions in the Rules of the Small Claims Court. These enforcement provisions will include things like garnishment, writ of seizure and sale and debtor's examination.
Whether you have any success in enforcing the Judgment often turns on whether the defendant has any assets. If the tenant has no job, no assets, and no decent prospects, then sometimes, regardless of the "justice" of it all, your judgment will remain unsatisfied and you will get nothing. Sometimes, the result of pursuing the claim to its conclusion is that the defendant will make an assignment in bankruptcy and as a result your claim is wiped out. Whether or not a defendant will have an ability to pay is something that you need to take into consideration before starting out with a lawsuit.
Proper vetting of prospective tenants, regular inspections, and active enforcement of your rights under the RTA should keep the number of significant damage claims against former tenants to a minimum. However, it will be impossible to have a perfect record and hence you should take steps to document each tenancy in such a way that proceeding with a damage claim is made easier. The checklist outlined in this article is something that you should turn your mind to at the beginning of every tenancy. It is not a lot of work to gather the evidence in a timely way and certainly it pays off many times over if you have a tenant who does cause problems in the rental unit.
Michael K. E. Thiele
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