Monday, 26 November 2018

Ontario's Standard Form Lease

Residential landlords looking for a template lease in Ontario

Fairly often I get an inquiry from a "new" landlord who is in the process of renting out their rental unit for the first time.  In getting ready to rent out the unit they are looking for a blank lease for their tenant(s) to sign.  For many years, this request for a blank lease brought on much consternation.  While a great deal of the rental relationship between landlord and tenant is governed by the Residential Tenancies Act (RTA), and further the Residential Tenancies Act makes any lease clause that is inconsistent with the RTA void (see section 4 RTA), a lease may still contain some unique clauses that are specific to the circumstances.

The "unique" requirements often led to a mish-mash of conditions and a merging of a variety of leases.  Still today you can find leases dealing with water-closets, coal chutes and stabling of horses.  The biggest problem in these leases is the inconsistency that arises through the lease.  Clauses are contradictory and the result is confusion and lack of clarity.  When this occurs, the law provides that any ambiguity is read or interpreted in favour of the party (usually the tenant) who did NOT draft the lease.   Hence, if you have a messy lease you will not be able to rely on vague terms to insist that the lease means one thing when it could reasonably bear the interpretation of meaning many other things.

The issue with confusing leases and bookstore leases (i.e. off the spinny self-help shelf) has been addressed by the government.  There is now a "standard form lease" that is required to be used in the vast majority of residential rental situations.   That lease can be found at this LINK which is the website for the Ontario Central Forms Repository.

This standard form lease became available and is required to be used in most private residential tenancy agreements entered on or after April 30, 2018.  The failure to use this form has potential negative consequences for landlords.  As you work your way through the form you will find spaces to include special clauses and specific rules for the rental unit.  Including unique clauses in this standard form does not make an otherwise illegal clause valid.  Anything "unique" that you want to include still needs to be consistent with the RTA.  

For the "new" landlord who is looking for a reasonable lease that is consistent with Ontario Law the standard form lease covers the bases.  It, through the formatting process will call your attention to some of the things that landlords may want to include in a lease that they technically do not have to address (ex. smoking).  As time goes on, a landlord may discover that there are certain rules and requirements in relation to the property that in future versions of the lease they can add.

Michael K. E. Thiele
www.ottawalawyers.com

Sunday, 25 November 2018

EVICTION FOR LANDLORD'S OWN USE (or his family's use)

EVICTION BECAUSE THE LANDLORD IS MOVING IN (Possibly in bad faith)
the new rules


The Residential Tenancies Act and at least the last two previous versions of the residential tenancies law in Ontario has allowed a landlord to evict a sitting tenant for no reason other than the landlord wanting to take over the rental unit for themselves, their family members (the relationship being designated in the law), or for care givers.  The notice period was then and still is 60 days to the end of term.  The notice form is a form N12.

Tenancies can be terminated regardless of any fault or lack of fault on the part of the tenant.  Good tenants are as likely to be evicted as bad tenants.  The N12 (Landlord’s Own Use) process does not require the tenant to have done anything to justify termination for this purpose.

Historically, tenants have challenged the N12 (Landlord’s Own use) on the basis of the landlord “wanting” the rental unit for their own use or “needing” the rental unit for their own use.   The difference between “want” and “need” is significant and where the landlord by accident allowed the analysis to become about “need” then the Ontario Landlord and Tenant Board would look at the legitimacy of the “need” and assess whether the expressed need was legitimate and asserted in “good faith”.   

When landlords did not stumble into asserting a “need” but simply stood firm on “wanting” the rental unit the analysis at the Landlord and Tenant Board focused more or entirely on the question of whether the landlord required the rental unit “in good faith” for residential purposes.    The LTB would analyze the evidence to determine why the N12 was served and whether the landlord or the person he indicated on the form was apparently going to move into the rental unit.  An affidavit from the person who was claiming to move in was also provided to the LTB in the application process.

Unfortunately,  the LTB’s ability to analyze the landlord’s intent was rather limited.  If a landlord swears “We’re moving in” and there are no surrounding facts available to the tenant to prove otherwise the application was normally granted.   For many years, the LTB did not worry too much about granting the Order because the RTA provided a remedy if the landlord did not move in.  However, with the passage of time it became readily apparent that the remedy for a false N12 was easily averted and tenants who moved out only to find their unit up for rent again (at a higher rent), ended up with no effective recourse or remedy.

The Landlord’s Own Use notice was increasingly a silver bullet that could kill any tenancy.  Proving that a landlord has served an N12 in bad faith is a very difficult thing to do if the landlord is careful and doesn’t say too much.  While a tenant’s suspicions may be strong, the burden to prove that the N12 was served in bad faith rests with the tenant.  If the tenant is unable to prove that bad faith then the eviction order was/is very likely to be granted albeit normally with a little bit of extra time.

ABUSE OF THE N12

Over many years it became obvious to those of us working in residential landlord and tenant law that the N12 (termination for landlord’s own use) was being abused by landlords as a simple way to evict a tenant without any real consequence. In fact, I had and still have many cases where licenced realtors are giving advice to landlords to serve an N12 to get possession to make it easier to sell a property.  This is entirely contrary to the RTA but it was quite common.

The N12 (Landlord’s own use) was in the early years interpreted strictly.  At one time it was impossible for a corporate landlord to take up residence in an apartment.  It was believed that a corporation couldn’t live in an apartment. Over time that changed and where a corporation was closely held (one shareholder) it was determined that the shareholder could move in and then it was determined that the shareholder’s family member could move in.  The effect was an expansion of the number of ways that a tenant (who was doing nothing wrong) could be evicted from their home.

THE CHANGES

The abuses finally became too much and the Residential Tenancies Act has been amended with respect to a “Landlord’s Own Use” application [Form N12].  The applicable residential tenancies act section is section 48.  This section has now been amended to make the N12 more difficult and more costly to use.  

These are the major changes:

1.    When serving an N12 the landlord or his family member designate must require the rental unit for residential purposes and must intend on living there for at least one year (section 48(1) RTA);
2.    Once the landlord serves an N12 for landlord’s own use the landlord must pay the tenant compensation equal to one month of rent or offer the tenant an alternate and acceptable rental unit (section 48.1 RTA);
3.    The N12 may only be served if the rental unit is owned in whole or in part by an individual (section 48(5)(a));
4.    The landlord is an individual (section 48(5)(b)).

The requirement that the N12 notice be served in “good faith” and that the rental unit is required for residential purposes continues to be a prerequisite to serving the N12.

As you can see from these changes the use of an N12 is now more onerous.  It is not impossible, but there is now a greater basis on which the tenant can challenge an N12.  Corporate landlords may no longer serve an N12.  If the landlord on a lease is a property management company it is arguable that an N12 can not be served.   There appears to be a greater barrier to landlord’s using the N12 to evict tenants.   The requirement that a landlord or his family member live in a rental unit for at least one year makes temporary living arrangements impossible.  The one year requirement allows for a greater questioning of prospective landlord occupiers, especially children who are often the intended beneficiaries of N12’s.  

The compensation requirement is another interesting and new requirement.  I read the section as requiring payment upon service of the N12 regardless of whether the landlord follows through on the N12. As soon as the N12 is served, compensation equal to a month’s rent is due to the tenant.  I believe this is a fair interpretation of this section given the apparent intent to limit the improper use of N12’s.  Requiring compensation to be paid is a good way to stop frivolous use the N12 or using the N12 as a threat.  I have seen too many times where landlord’s serve N12’s just to see what happens and to see if a tenant will leave because of it. Currently, landlord’s are arguing that the compensation does not need to be paid if the Landlord does not apply to the LTB on the N12.  I disagree with this position.  As far as a I know there is no binding authority on this point at the time of writing this article.

THE HEARING PROCESS

The process before the Board remains as it always has.  A landlord may apply to the LTB, based on an N12, at any time after service of the N12.  The notice period of 60 days (to the end of term), continues to only be a minimum notice period and not a maximum.  Hence a landlord who absolutely needs to know when they are getting the rental unit should apply to the Board immediately after serving the N12.  The LTB is fully authorized to extend the 60 day notice period to a future date that seems fair under the circumstances.  Because the tenant is not at “fault” in an N12 situation the Board looks favourably at tenants and their particular needs.  If a tenant has a child in school and wants a few extra months to allow the child to finish school then that extension of time is likely to be allowed.  There are many many reasons for the LTB to extend the termination date even if the landlord is found to have served the N12 in good faith.

Because you can not know for certain when the LTB will terminate the tenancy it is a good idea to apply sooner than later, even if the tenant advises that they will be moving.   Regardless of what the tenant says, it is only lawful to evict the tenant with an Order of the LTB.

Michael K. E. Thiele

www.ottawalawyers.com

Friday, 23 November 2018

Making Noise--what is the cut-off?

Noise by-laws and the consequences for making noise

A very common problem is with tenants making noise in apartment buildings.  The noise can be loud talking, arguments, stereos, blasting music, party noise, televisions too loud, gaming systems and the games on them making war noises, crying babies, barking dogs, walking like an elephant on the floor,  and all other kinds of noise arising from tenants and their guests living their lives.  What are the rules about dealing with noise?

There is a very large red-herring that always interrupts this analysis.  That red-herring (i.e. something that does not actually mean anything but seems like it might), is the noise by-law passed by a city, town, or township where the rental unit is located. 

Tenant's who make noise will, when confronted, will often say that they quiet down at 10 p.m. or 11:00 p.m. as the by-law requires.  The implication is that until the time set out in the by-law they can play the music as loud as they want or have as many people shouting and carrying on as they wish.  So long as they comply with the by-law they feel that what they are doing is legal.

Certainly, if a municipal by-law requires a quiet period after a certain hour or prohibits certain activities before a certain hour then the impression is that noise before or after the time in the by-law is legally permissible.  For the purposes of landlord and tenant law this is absolutely 100% false.

The Residential Tenancies Act controls noise and all behaviour of other tenants 24 hours a day, 365 days a year.  That control is set out in section 64 (among others) of the Residential Tenancies Act.  In that section tenants are prohibited from substantially interfering with the reasonable enjoyment of the premises by other tenants and the landlord.  Loud noise that at any time of the day substantially interferes with the reasonable enjoyment of the premises by any other tenant is prohibited.  This is the case regardless of what the noise by-law says.

The key to the RTA requirement lies in the words "substantial" and "reasonable".  There is no noise bylaw and no RTA requirement that imposes absolute quiet in any residential complex.  This does not mean that some tenants will not be disturbed.  For example--a blender at 1:00 a.m. being used to make a breakfast for a tenant on shift work might very well be quite annoying to a neighbour who can hear this blender.  Does this blender noise contravene a by-law or the RTA?  Very likely not.  While the noise is undoubtedly bothering neighbours, the use of the blender at that time and for that purpose is "objectively" reasonable.   The problem is not actually the use of the blender at that time, the problem is likely that the walls are too thin, not sound insulated, or the rental unit is very old or it wasn't originally constructed for multiple-family occupation.   This problem, then, becomes the reality of communal tenant living in that building.   I know of a great many buildings in this region (Ottawa), where neighbours are fully aware of the intimate habits and daily routines of their immediate neighbours.  They know these things not because they're snooping but simply because the noise carries and you can hear everything just walking down the hallway or while sitting on your living room couch.   Perhaps the more startling revelation is when tenants realize that if they can hear the neighbours then the neighbours can hear them too.

Back to the blender example.  If a neighbour decides to be anti-social and starts turning on a blender, or two blenders, at 1:00 a.m., and leaves it running for 20 minutes just to annoy the neighbours then this likely is a breach of the RTA.  If a complaint to the landlord results in an investigation that determines the noise is being made to bother people then eviction is on the table and the tenancy can be terminated through the N5 Termination Notice process.  So, intent matters!  If a neighbour is trying to be annoying and has no reasonable regard for the peace and quiet of the neighbours then they can be evicted for the noise.   The RTA, through the hearing process and eviction procedures will impose on tenants "reasonable" behaviour and to an extent respectful behaviour for neighbours.  However, the RTA will not prohibit all noise or seek to impose onerous conditions for the benefit of a tenant who is hyper-sensitive or who wants absolute peace and quiet.  This is even the case if the noise is "new" because of new tenants and the tenant complaining had perfect quiet for many years before.

Michael K. E. Thiele
www.ottawalawyers.com

Thursday, 22 November 2018

Proof of your case at the Ontario Landlord and Tenant Board

THE BURDEN OF PROOF AT THE LANDLORD AND TENANT BOARD

Most people are familiar with the concept of the “burden of proof” largely because you hear it referred to in movies and on television.  The phrase “beyond a reasonable doubt” sounds familiar to most people and most people when they hear “beyond a reasonable doubt” will think about the concept of being “innocent until proven guilty”.  These two phrases are grounded in criminal law and are the foundation of a presumption of innocence.   For cases involving criminal acts or even quasi-criminal acts, the law presumes that it is better to let some guilty people go free than it is to convict some innocent people of crimes that they did not commit.  Hence, the burden of proof can be difficult to meet.

The burden of proof or the “standard of proof” that people may not be so familiar with is the civil standard of proof.  The civil standard is the standard that applies in Landlord and Tenant Board matters.  This standard requires the applicant (either the landlord or tenant depending on who filed the application), to prove the allegations on a “balance of probabilities”.  You can understand the “balance of probabilities” as meaning “more likely than not” or “50% plus 1".  Relatively recent appellate caselaw has determined that there are only two standard’s of proof and that there is no sliding scale in the civil standard.  To meet the civil standard of proof the evidence in support of that burden needs to be “clear, cogent, and convincing”.


To be clear, the standard of proof at the Landlord and Tenant Board is the civil standard.  This should be noted even though the Landlord and Tenant Board will hear allegations against tenants that constitute an illegal and even criminal act.  Where a landlord is seeking to terminate a tenancy and evict a tenant because of an illegal act there is no need for a criminal charge or conviction of the tenant.  The landlord can win the application by proving that the illegal act or criminal activity occurred on the civil standard (more likely than not) as opposed to “beyond a reasonable doubt”.   The effect of the different standard is that it is possible to win at the LTB but possible for the Crown to lose in criminal court simply because the burden of proof in the criminal matter is higher.


Shifting burdens  

A shifting burden of proof is when one of the parties is required to offer a certain minimum level of evidence/proof (and once that’s done) the burden shifts to the other side to disprove the minimum level of evidence/proof that caused the shift in burden.   The prime example of this at the LTB is in non-payment of rent applications.

In an application for termination for non-payment of rent and eviction, the landlord has the first obligation to “prove” that the tenant did not pay the rent.  That burden is very easily met because all that the landlord has to do is say “the tenant did not pay the rent”.  That is enough to establish that the tenant did not pay the rent.  The landlord is not required to show anything more to establish with clear, cogent, and convincing evidence that the tenant did not pay the rent.

Once the landlord says “the rent remains unpaid” the burden shifts to the tenant to prove that the rent was paid.  Hence, the burden shifts to the tenant to prove that the rent the landlord claims is unpaid was in fact paid.   Normally this is not such a big deal.  A cancelled cheque, an e-transfer, money order, a signed receipt, an admission from a rental officer, are all effective ways to prove that rent was indeed paid.

What is unfortunate, for tenants, is when rent is paid in “cash” and the tenant is not given a receipt.  How then does a tenant discharge the burden of proof when cash has been paid and they have no receipt?  Sometimes, the landlords refusal to acknowledge receipt of cash is just pure evil.  Other times, it is just an honest mistake.  And other times, it is the system that breaks down and the tenant is just stuck.  For instance, what if the standard way of paying is in cash with the cash dropped in a drop box outside the landlord’s office.  What happens if one night a clever thief figures out how to fish a cash loaded envelope out of the drop box leaving no trace of what they’ve done.  The tenant knows they paid but the landlord has no envelope and nothing seems to be wrong with the drop box.   Who will win that application at the LTB for terminating for non-payment of rent?  Based on the “shifting burden of proof”, in this case the advantage lies with the landlord.  


WHEN TO ARGUE THE BURDEN OF PROOF


The burden of proof is not to be ignored.  At the conclusion of the evidence the adjudicator is likely to ask the parties to make submissions.  The applicant (person who brought the application) goes first.   The applicant, having the burden of proof should be comparing the important evidence that the adjudicator heard and suggesting through argument what evidence the adjudicator should accept and why.  The applicant should suggest that the burden of proof has been discharged and that the case is proven.


The respondent on the other hand, will want to say that the burden of proof has not been met.  For example.  Where two people testify and each say the exact opposite of what the other person says (and presuming this is crucial evidence), the adjudicator will have to decide who to believe.  The respondent will likely suggest that the favourable evidence should be accepted and perhaps even argue that the evidence is contradictory and can not be resolved in favour of one side or the other.  If there is an unresolvable conflict in the evidence then the adjudicator would turn to the burden of proof and say “sorry applicant, you did not prove 50% plus 1 and therefore, because of the burden, you lose”.    Accordingly, it is possible for an adjudicator to say that she believes both sides equally and that because the applicant can’t tip the evidence in their favour it is a “tie”.  When there is a tie, the respondent wins.


Michael K. E. Thiele
www.ottawalawyers.com

PART II: Presenting your case at the Landlord and Tenant Board

Presenting your case at the Ontario Landlord and Tenant Board PART II

This article is a continuation of the theme of presenting your case at the Ontario Landlord and Tenant Board (LTB), whether you are a landlord or a tenant.  This article is written, not for lawyers and paralegals (but potentially helpful to them too) but for regular people who need to use the services of the adjudication process of the Ontario Landlord and Tenant Board.


The last article focused on process and how the LTB actually conducts its hearings. Recall that the formality of a court proceeding is completely alien at the LTB.  An adjudicator is directed to adopt a process—any kind of process---that allows people to know the case, understand the evidence, and be heard.

Yesterday, I was at the LTB here in Ottawa for a hearing that ultimately was adjourned to early December.  What was interesting was that in waiting for the start of the hearing the adjudicator decided (having read the file) that this case should be sent to a Hearing Management Conference (HMC).   A hearing management conference is entirely different than mediation and the focus of an HMC is not on resolution or mediation.  While mediation is voluntary, an HMC can be ordered by an adjudicator who is seeing issues with a particular case.


The goal of an HMC dovetails nicely with the point of this article and that is presentation of the case to the member.  Too often, applicants attend at the LTB and think that the best thing to do is to unload every fact, every issue, and every piece of evidence.  The problem with this is best highlighted by imagining the time it takes for the LTB to watch several “video clips”. Those clips, perhaps only a few minutes in length, need to be set up, watched, re-watched, stopped, explained by the person presenting the clip, cross-examined on, and determined whether the video clip has been altered, is a fair representation of what actually happened, and whether the video clip is more prejudicial than probative (i.e. misleading versus reliable) or more probative than prejudicial (i.e. reliable and representative of what happened versus misleading).


So, the HMC process involved being taken out of the hearing room and sitting with a Board mediator—who in the context of an HMC wears a different hat and is now case resolution officer.  These same mediators also wear another hat in the context of Case Management Hearings (CMH) which sometimes are ordered to proceed before the actual hearing and at these CMH’s the mediator has the authority to make Orders against the parties with respect to procedural issues.


In any event, the HMC is conducted for the purpose of determining whether there are agreed facts, whether all evidence has been disclosed, determine the issues (and narrow them if possible), determine the anticipated length of the hearing, determine who the witnesses are, determine whether amendments to applications are needed, whether accommodations for disabilities are required, and basically any other thing that might impact the hearing.   By going through an extensive checklist and having a longer discussion about how the case will go ahead (and not arguing about the facts), the intention is to streamline how the case proceeds so that as little time as possible is wasted.  Through this HMC, a party may get some guidance on how a particular adjudicator conducts hearings, and the likely process that will be followed.


The HMC I was in yesterday, resulted in an adjournment because it was clear that the case would take at least 4 hours and there was only and hour left in the hearing block.  Because of the HMC we were able to address the issue of whether we wanted to start now, cause this particular adjudicator to be seized with the case, and come back at some future date that might be several months down the road. [“seized” means that once an adjudicator starts hearing the case that adjudicator needs to be the one who finishes hearing the case].  For this case, neither side wanted to start and not finish because it is more difficult to keep yourself on track with months between hearing dates.


In my case yesterday, the HMC might also have managed to reduce the length of time needed to hear the evidence to the time available to hear the case.  That didn’t happen, but it might have and if that were successful then the efficiency of getting the case dealt with would have been worth the exercise of the HMC.



FOCUS, FOCUS, FOCUS.

The HMC, from the issues it addresses as noted above, aims to narrow the focus of the case to the key and important issues.  That goal, is also the goal that you (as the landlord or tenant) should be conscious of and aiming for.   Whether you are the side bringing the application or the responding side defending an application, being focused has a ton of benefits—the most important of which is that you are more likely to win the case.


How does being focused help you win?   The simple answer is that focusing your case forces you to understand your own case better. The better you understand your case, the more likely it is that you will be able to communicate your case to the adjudicator and therefore the adjudicator will understand what you are complaining about or will understand why you are not responsible for what the claim against you is for.


The ability to “focus” a case has a great many moving parts.  If you think you are just “fantastic” at being focused I can tell you without a doubt that you are wrong.   Brilliant trial lawyers with decades of experience, law clerks, paralegals, and support staff work hundreds of hours to “focus” their case.   While LTB hearings are not major trials there is still a similarity and arguably more difficulty at LTB (where the ability to be ambushed with evidence is a part of the process).


So what does the process of being focused look like?  There are of course the “facts” as you understand them.  Then there is the “law”.   Then there are the “witnesses”.  Then there is the “evidence”.  Then there is the format of the evidence (written, oral, digital, real).  Then there is the issue of “time available to present a case”.  Then there are the “human factors—nerves, perception, hearing, speaking, communicating”—in relation to every participant in the hearing.  Then there are rules of procedural fairness and natural justice. Then there is the unknown responding evidence and argument.  And to top it all off, there is rhetoric and the art of persuasion using all of these factors and likely others that I haven’t thought of now.  To “focus” you need to put all of these things together (which involves a fair amount of guesswork) and ultimately, tell a story.


At the heart of all cases there is a “story”.   The effective presentation of all cases is the art of story telling.  



Interesting Concepts—but my hearing is next week. Practical advice please!

Practical Tip #1

Collect all of the documents that you think you will need.  Typical documents include: the lease, notices of termination, emails, text messages, photographs, complaint letters, by-law reports, police reports, property standards orders, bounced cheques, bank statements, rental applications, and any other document that conceivably may be needed.

Put them in a logical order.  By date, by incident, or whatever makes sense.  

Create an index.  Page number each document.

Make 4 copies (one for each of: other side, adjudicator, witness, yourself).

Drive a staple through each copy.

The value of this is that you are now able to find any important document, and refer every single person to the page you want them to look at in seconds.

Doing this will endear you to the adjudicator who otherwise spends a ton of time looking for the “right” page etc..



Practical Tip #2

For yourself, create a flow chart (bullet points), of every critically important thing you want entered into evidence.  Write it out in a logical order (usually chronological).  This will be the order you present your case.  At each bullet point make a note of each page in your document brief (Tip #1 above), that supports the point you want to make.

If you follow your flow chart, regardless of how nervous you are, you will have presented your case and said all the things you wanted to say in support of your case.



Practical Tip #3

Take a hour or two to figure out the legal basis of your claim.  Yes, there are Forms to fill out at the LTB.   Each one of those forms is based on a section of the Residential Tenancies Act (RTA).  You can read the actual law that causes the form to be created.  You can do it for free from the comfort of your computer.  Search for the Residential Tenancies Act on www.canlii.org.  This is a free caselaw site.  You can read all of the laws in Canada here for free.  Narrow your search to Ontario, then search Residential Tenancies Act.   

Once you have the RTA in front of you, just browse the index to the RTA.  You will see the sections that apply to your case. Read those sections.  You don’t need to memorize or become a legal genius. Just get a sense of what the law says about the application you are bringing, or defending against.  The knowledge you gain from this can be tremendously valuable during the hearing.



Practical Tip #4

Go to the landlord and tenant board website.  You should again browse the Landlord and Tenant Board Rules of Practice.  Just read the ones that apply to your case. Further, browse the Interpretation Guidelines.  These Rules and Guidelines address the things that typically happen at the Board.  From adjournments, disclosure, fairness, service, etc., all of these issues are dealt with in the rules and guidelines. If you are familiar with “how the Board thinks” you have an advantage.


This article is running long so that will be it for now.  I will continue on with presenting your case at the LTB in a future article.


Michael K. E. Thiele
www.ottawalawyers.com

Monday, 19 November 2018

GETTING OUT OF YOUR LEASE EARLY---Is it possible?


PLEASE LET ME MOVE OUT!

Life's realities sometimes make it necessary for a tenant to move and leave their current apartment.  Sometimes, the reality is a job loss, a relationship breakup, or sometimes the reality is an opportunity for a better job in a different city.  Family responsibilities or financial set backs can also contribute to the need to terminate a tenancy early.  Many of these "realities" are unexpected and take people by surprise.  The year long term of a lease, or the multi-year term that seemed like a good idea to sign up for is, all of sudden, a tremendous burden.

For tenants who never signed a lease and are on a month to month tenancy, or for tenants whose lease terms have expired and therefore the lease has automatically renewed on a month to month basis, the extent of liability to the landlord for ongoing rent is 60 days notice to the end of the term.  In theory this could amount to a maximum of three months rent.

A tenant who is on a month to month tenancy needs to give a landlord 60 days of notice to the end of term.  The exact rules for this and the timing of that notice is set out in a handy form that the Ontario Landlord and Tenant Board provides.  That form is the Form N9 and is called a Tenant's Notice to Terminate.


FIXED TERMS


What is meant by "Fixed Terms" is a lease that was entered into for a term other than a month to month term.  The typical or normal term is one year.  After the one year term expires, a lease in Ontario does not end.  Without doing anything at all, the lease automatically renews periodically on a month to month basis.


During the original lease term, a tenant is presumed to be committed to staying in the rental unit and paying the rent for the entire term of the lease.  After the expiry of the original lease term, the lease goes month to month, and a tenant is only presumed to be bound to pay the future rent for up to 60 days as the tenant may terminate the month to month tenancy on a minimum of 60 days written notice to the end of the monthly term.


What if a tenant needs to terminate a lease during the original fixed term of the tenancy?  For this discussion, lets presume a scenario where the tenant has signed a one year leasing starting January 1, 2017, in Ottawa, Ontario.  The tenant moves in and is obligated to pay $1500 per month on the first of every month.  The term is indicated in the lease as ending on December 31, 2017.  On February 4, 2017, the tenant's local job is terminated but she is offered a transfer to another location in Toronto.  If she wants the job, she has to start, on March 1, 2017.  She basically has three weeks to find a new apartment in Toronto, pack, move, and wrap up her life in Ottawa.  In that time she has to figure out what to do with her Ottawa apartment.  She has only paid for January and February and now after these two months has 10 months of rent left which totals $15,000.


What can this tenant do?  A telephone call to the Landlord and Tenant Board will result in the tenant being told that she can "Assign" the lease to another person.  The Residential Tenancies Act provides that a tenant may assign a lease with the consent of the landlord.  If a landlord chooses not to allow the tenant to assign the lease a tenant may terminate the lease--even if in a fixed term--on 30 days notice to the landlord regardless of the length of the term of the lease. 


The applicable sections of the RTA are found in Part VI, specifically in section 95 and 96. 


The first thing that a tenant should do, in relation to "assigning" a lease is to ask the Landlord, in writing, whether the landlord agrees to allow the tenant to assign the lease.   This is a general request for permission to transfer the lease to another person.  The reason to ask this question is that a landlord has the right to say "no".   The landlord does not have to have a good reason to refuse an assignment on a general basis.  Given that the point of an assignment is to transfer responsibility for the lease to another person, a tenant whose landlord refuses consent to assign should be just as happy to terminate the tenancy agreement using a Form N9.  A landlord's refusal to consent to assign is grounds for terminating a tenancy under section 95(4) RTA.


WHAT IF THE LANDLORD AGREES TO ASSIGNMENT GENERALLY


After asking your landlord for consent to assign the lease (without proposing any specific person to take over the lease) in writing, your landlord has seven days to respond to your request.  If the landlord responds within the seven days stating that they agree to you assigning the lease you are then left with the task of trying to find a new tenant to take over your lease.  You can advertise, find friends, friends of friends, hold open houses, and do whatever you can to find a new tenant.  Your success will likely turn on the state of the rental market, how desirable your rental unit is, and the amount of your monthly rent. 


Presuming some success in finding a person who wants to take over your lease you will need to work with the landlord to have the landlord assess the tenant to see if the person you have found is suitable.  The landlord needs to assess the prospective assignee reasonably and objectively--meaning the landlord can't just say no for arbitrary reasons.   The landlord may run a credit check or background check on the tenant to make sure that the assignee is acceptable.  You may be charged a fee for the out of pocket expense of doing so--but only if the cost of the background check results in the assignment of the rental unit.  A landlord is only entitled to charge for the background check when the background check results in a "yes".

If you have been lucky enough to find a new tenant to take over the lease on an assignment the landlord will prepare some kind of document (sometimes just a written acknowledgement), that the assignee has taken over the lease from a certain date.  For the tenant doing the assigning (i.e. the tenant who is leaving), getting a firm and fixed date in writing about when the assignment takes effect is critical.   This date is important because it is from the date of the assignment that the tenant who is leaving is no longer liable for rent, damage, or any behaviours of any guests in the rental unit.   The liability of the tenant who is leaving is limited to rents owing, damage caused, upon to the date of the assignment.

The assignee (tenant taking over the lease), is likewise only responsible for rent, damage, and tenant responsibilities from the date of the assignment.  Anything that existed before the assignment is not the responsibility of the assignee.   Hence, as you can imagine, it is very important for the "leaving tenant" and the "new tenant" to clearly document and record the condition of the rental unit on the date of transfer.  The old tenant doesn't want to beheld liable for new damage caused by the new tenant and the new tenant does not want to be liable for damage that existed on the date of the assignment.  Without a clear inspection and acknowledgement of the landlord about the condition of the premises on the date of assignment there is a risk that the landlord chases both the old tenant and the new tenant for damage when the tenancy ends.

IS THERE ANOTHER WAY to end the tenancy?

The assignment process that was just discussed is the "way" that the LTB will advise tenants who need to leave early to deal with the tenancy.  That being said, nothing stops a landlord and tenant from agreeing to terminate a tenancy on terms that work for both.  When an agreement to terminate is reached the parties can use a Form N11 to terminate a tenancy (regardless of term).  The obligations to each other under the lease will be effective on the termination date set out in the N11 Form.  Note that there is no minimum notice period for an N11.  Where the parties agree, they can legally choose any termination date that they wish.

Michael K. E. Thiele
www.ottawalawyers.com   

Presenting your case at the Ontario Landlord and Tenant Board


Nervous?  How do I argue my case

How do you present a case at the Ontario Landlord and Tenant Board?  I get this question often and my initial joking reply is “just like you see on television”.   After a brief chuckle the conversation I’m having explores the nature of how an administrative tribunal (like the Ontario Landlord and Tenant Board) functions versus how a Court functions.   Both venues (Court and Board), are adversarial in that they pit one side against the other and allow each side to present evidence, cross examine, refute and corroborate and ultimately make arguments to the adjudicator/Judge why one particular side should win the case.

Beyond the fact that Courts and Tribunals (Landlord and Tenant Board specifically) are adversarial they couldn’t be much different in all other respects (i.e. they truly are nothing alike).   Depending on your point of view, presenting your case at the Landlord and Tenant Board is friendly, easy and the epitome of Justice served or it is a nightmare devoid of rules of evidence, fairness, and fraught with ambush.  Of course, your experience does not have to be at either extreme but I mention the extremes because the structure of a Board hearing is so loose and freewheeling that parties often enough come away from the experience feeling like they have just experienced one of these extremes.

Why is the Board process so loose and freewheeling?   Ultimately it comes down to the legal rules that govern the procedure in front of administrative tribunals.  As an administrative tribunal the Ontario Landlord and Tenant Board is not bound by the Rules of Evidence nor any other particular method of conducting a hearing.  The LTB processes are intentionally and purposely wide open to any kind of evidence being admitted and any kind of process being adopted. The idea is that regular people can simply appear before the Board, and without any specialized training they can tell their story and the adjudicator will receive the evidence without all the technicalities that turn Court cases into logistical and strategic marathons that seemingly go on forever.

An adjudicator at the LTB is directed by the Residential Tenancies Act to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter (section 183 Residential Tenancies Act).   If you look closely at this section (183), you will see that an adjudicator can adopt different styles for different cases depending on the nature of the case and even the abilities of the parties.  The process can follow the formalities of a Court proceeding or it can be inquisitorial where the adjudicator acts like an investigator and just asks questions or it can be a conversational style or frankly any variation of these that meets the test of section 183.

Because of section 183, you should not expect the case to proceed in the way you see on television.  It is unusual for there to be opening statements—in fact that is rare.  It is more common for the adjudicator to ask the applicant (the side bringing forth the application), for a quick summary highlighting what the application is about and what the party hopes to achieve. The adjudicator will often then ask the other side something along the lines of “do you agree that this is what the case is about?”.  From that opening the adjudicator tends to figure out what kind of case he or she is listening to and then adopts a process that seems appropriate for the circumstances.   It is worth noting that if neither the landlord nor the tenant says anything then the adjudicator will conduct the hearing in the way that they choose.  You should not expect the adjudicator to say “how would you like for this hearing to proceed?”.  If you have a desired format, or want to proceed in a particular way, then it will be up to you to assert that format to the adjudicator and try to get the adjudicator to adopt that format.  If you simply sit quietly and wait to be called upon then the format of the hearing will be determined for you.

Should you have a preferred manner of proceeding?  As a lawyer doing this for over 20 years I certainly have my preferences. However, how I would like for a case to proceed really depends on the nature of the case, the strength of the witnesses and what the evidence I anticipate to lead looks like (oral, documents, video, pictures, strong witnesses, intimidated witnesses). Applying a cookie cutter process to every case is usually not the best choice because the formality of a specified structure (like Court Proceedings) is unlikely to work in a high volume and summary system like the Landlord and Tenant Board.

THE HEARING 

Ontario Landlord and Tenant Board hearings are scheduled in large blocks of cases. Your case will be one of many, all scheduled to be heard—typically, within a 3 hour block of time.  It may very well seem impossible for every case on the docket to be heard within the time allowed.   Sometimes that is true and when that happens cases that are not reached and even cases that are started but not finished are adjourned to some future date (which is almost never the next day).

Because the hearing blocks are sizeable and time is limited, it is very helpful to be organized and ready.  If you are a landlord and it is your application you will obviously want the case to proceed.  You may find yourself frustrated by a tenant who spends a lot of time with duty counsel and who then seeks an adjournment(s) for any number of reasons.  While you can’t prevent some of the delays, you should minimize any delays that can be attributed to you.  Hence, have your evidence ready, have your documents filled out, provide disclosure in advance of the hearing to the other side and have at least three copies of everything available at the hearing.

Too often I have heard parties and witnesses state during the hearing that the information, document or evidence they are referring to is “at home”.   For your own sake, don’t be the landlord or tenant who has left the important evidence at home.  The usual response to “it’s at home” is “that’s too bad”.  In rare circumstances a landlord or tenant may be permitted to make a post hearing submission—but that is rare.  Another common refrain is that the “adjudicator can call so and so” who will confirm the truth of what the person is saying.  Please note, the adjudicator does not call anyone. If there is a person who could testify then it is the obligation of the person who wants that evidence to call the person with the information as a witness at the hearing.   The LTB has summons to witness forms and there is a process that either landlord or tenant can use to compel the attendance of witnesses.  If the person you want to call to testify does not want to come voluntarily then you might want to think about summonsing that person.  The point to take from this is that the case will be decided on the evidence that is produced and entered at the hearing.  For the purposes of the case, the “truth” will be determined based on the introduced evidence and not on all the evidence that might have been produced.

WHAT ABOUT LETTERS, AFFIDAVITS, or other STATEMENTS?

Sometimes, in fact oftentimes, witnesses don’t want to attend a hearing.  In fact, I think you could almost call it a rule of nature that a person’s willingness to testify decreases in proportion to how close the hearing date gets. All of a sudden the witness who was gung ho and behind you 100% will discover that they can’t get out of work, need to visit (insert name of sick relative here), or somehow they don’t seem to answer the phone anymore or are out of town.   The fact is that a great many people would rather have a root canal than testify in a legal proceeding.

This reluctance often leaves parties grasping at straws trying to figure out how to get a reluctant witness’ evidence.  In these circumstances we see people providing letters, sworn affidavits, petitions (signed by everyone in the building!), emails, text messages and voicemail recordings.  All of these forms are evidence are offered instead of the live in person testimony of the individual.  Is this acceptable?  Is this admissible?

The freewheeling nature of the LTB means that all of these letters, statements, emails, texts, recordings, affidavits, are admissible and may be relied upon to the detriment of the “other side”.   The hearsay objection that one would normally expect to raise is not exactly a “proper” objection at the LTB.   As an administrative tribunal the Board is entitled to receive hearsay, and hearsay evidence is just another kind of evidence that the Board will consider.

While the evidence is admissible, and it may be relied upon by the adjudicator, the nature of this evidence is still problematic.   The fact is that all of these forms of evidence are not subject to cross-examination and weighing the credibility of the information in a piece of paper is effectively impossible to do when that information is carefully scripted to tell a particular slanted version of events.

For that reason, if an opposing party objects to the admission of a letters, text, petition, affidavit, recording, etc., you will likely hear the adjudicator say that the objection is “over-ruled” (meaning the document is admitted), but that in considering the document the adjudicator will consider the “weight” of the document.  By this, the adjudicator means that they will only give the written document the importance it deserves and discount the reliability and probative value of the document because it is in fact hearsay.   To rebut the information contained in a written document (recording, text, email, etc.), is fairly simple to do if you have a live witness present.  Simply have that live witness point out the shortcomings in the document and highlight how the information is inaccurate, incomplete, and/or misleading.  Once that is done—the evidence is likely of very little value.

SUMMARY

As you get ready to attend an LTB hearing you should expect an informal process that accommodates the “non-lawyer”.   You don’t need to know special rules or be an expert in cross-examination to appear before the Board.  The LTB process is intended to be accessible to lay people.

Does this mean that you are just as well off representing yourself as you are with a lawyer or paralegal?   Absolutely not!    In my opinion the open nature of LTB hearing procedures puts the self represented person at a greater disadvantage at the LTB than if the unrepresented person faced off against a lawyer or paralegal in Court.   The rules of evidence, and all of those “technicalities” that people sometimes complain about are actually the result of many hundreds of years of legal proceedings that recognize the needs for procedural protection and reliance (if at all possible) on only the best evidence.  With the safeguards of the Court process removed from the LTB (and most other administrative tribunals), there is an increased risk of an applicant or respondent being taken advantage of or being out maneuvered by someone who is familiar with and comfortable with working in an adversarial process.  For that reason, I do recommend to landlords and tenants that if it is affordable and the stakes of the hearing are high enough that they are better served by being represented by a lawyer or paralegal who is experienced in the freewheeling nature of the Ontario Landlord and Tenant Board.

In a future blog, I will continue the theme of this blog and write about preparing your evidence and how to tell your story to the adjudicator in a way that is compelling and logical.

Michael K. E. Thiele
www.ottawalawyers.com 

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