Have you been hurt on your landlord's property?

Due to carelessness, negligence, or sometimes simple misfortune, people get hurt through accidents on apartment properties.  The injuries may arise from dog bites (dogs owned by other tenants), slip and falls due to ice or snow, trips or falls caused by crumbling concrete, steps or walkways, or even injuries inside rental units due to neglect and lack of repair.  If you or someone you know has suffered an injury inside a rental apartment or house--what can you do?

The fact is that both a tenant and a landlord may be liable in tort for the injuries sustained by a guest.  What is sometimes less clear is that a landlord may be liable for the injuries sustained by a tenant of that landlord if the injury is caused by the landlord's negligence or neglect.  A landlord does not have any special protection from being sued simply by being in a landlord and tenant relationship---regardless of what the lease says!

Given the serious consequences of suffering a personal injury (pain and suffering, loss of income, loss of future income, loss of earning capacity, special expenses including medical and medical assistive devices) it is important to explore all sources of compensation to help the injury victim get through the ordeal.  

My law-firm, located in Ottawa, Ontario, is considered a leading boutique personal injury law firm.  This label "boutique" means that personal injury work is the primary focus of the firm.   We currently have eight lawyers in the firm focusing exclusively on personal injury claims.   Needing a personal injury lawyer in Ontario is actually less stressful than needing any other kind of lawyer from a financial perspective.  Almost all personal injury matters are handled on a "don't pay unless you win basis" meaning there is no risk of having to pay us for services unless you win or settle your claim.  Accordingly, it is worthwhile to get an opinion about injuries that happen on a landlord's property.  Consultations are free and I would be pleased to hear from you.

Michael K. E. Thiele

Quinn Thiele Mineault Grodzki LLP

Ottawa, Ontario

613-563-1131

Icy parking lot-Snow Covered Walk

What is a tenant to do about the icy walkway, path, parking lot?  As the last week or so in Ottawa has shown, winter weather can wreak havoc with safe passage into, onto, and off of the residential rental complex.  Aside from getting out a shovel, ice melter, and doing it yourself, there is indeed another option.  At law a landlord is required to maintain the walkways, pathways, parking lots, in a way that provides for safe passage.   If there is undue snow and ice then of course a tenant is being deprived of their right to safe passage.

The City of Ottawa Property Standards By-law imposes an obligation on landlords to keep the walkways, paths, parking lots, ramps, steps, and entrances safe by removing any accumulation of ice or snow.  See section 9 of the Property Standards By-law.  Of interest is to note that the obligation extends not only to the passage by pedestrians but also to vehicles.

If a landlord is failing to maintain the property in accordance with the burden imposed by the by-law then it is an option for a tenant to call property standards and ask them to attend the property, inspect, and order the landlord to do make the property safe.  The inspection and order will also be strong evidence of a violation that a tenant could use at the Ontario Landlord and Tenant Board if the tenant should chose to file a maintenance and tenant's rights application.

Michael K. E. Thiele
Lawyer
Ottawa, Ontario

Ontario: Maximum Rent Increase for 2013

The Annual Guideline rent increase amount for Ontario in 2013 is 2.5%.  This means that for many tenancies in Ontario the most that a landlord can raise the rent, for a sitting tenant, is 2.5% with 90 days notice.  An example of applying the 90 day notice period would be as follows.  Presume a rent of $1000 with the intention to raise the rent by the maximum guideline amount as soon as possible with the Notice of Rent Increase being delivered (Form N1) as of the date of this blog (December 16, 2012).

On these facts the rent increase could not take effect until April 1, 2013 ($1025) .  You will note the time period is slightly longer than the required 90 days--this is because the rent increase must take effect on the first day of a new rental period after the 90 days of notice and not in the middle of a rental period---i.e. the tenant, in this example, has paid rent for the entire month of March 2013 on the first of March, therefore you can not raise the rent in the middle of the month.

What if 2.5% is not enough?   The simple reality is that the Ontario government has artificially capped the annual guideline amounts at 2.5% and thereby is forcing landlords to absorb the impact of inflation and increasing costs while preventing them from passing on these costs to tenants.  The Residential Tenancies Act was changed to cap the guideline amount in June 2012.  But for this change in the law, the guideline increase amount in 2013 would be 2.6%.

What can a landlord do if the guideline amount isn't enough?  Aside from Above Guideline Increase applications it is increasingly probable that many landlords are renting out units that are exempt from the annual guideline increase caps imposed by the Residential Tenancies Act.  The exemptions, for the most part are based on the date that the rental units were built or used for residential purposes.  If you have a relatively new rental unit or otherwise want to know if you can avoid the rent increase guideline amounts you should contact a Landlord and Tenant lawyer who can go over all of the ways that your unit might be exempt under the RTA.  While a call to the Landlord and Tenant Board may also get you an answer, you should be aware the the language of the exemptions is less than straightforward and the interpretation thereof should be done by an experienced landlord and tenant lawyer.

Michael Thiele

QTMG LLP

Ottawa, Ontario

Canada

PAYMENT PLANS FOR ARREARS OF RENT

A simple reality of life is that tenants in Ontario sometimes fall behind in their monthly rent obligation.  When that happens a landlord may decide to give the tenant a break and work out something that is mutually acceptable or alternatively the landlord will immediately serve a Form N4--Termination for Non-Payment of Rent and seek to enforce the legal rights available to him.

The termination process for N4's already has built into the procedure a voiding mechanism that effectively forgives the late payment of rent.  Once an N4 is served a tenant has 14 days to pay the rent.  If the rent is not paid after 14 days (by the date set out in the Form N4), the landlord may then apply to the Ontario Landlord and Tenant Board to get a hearing to terminate the tenancy and get an eviction Order. 

An application for a hearing is held within a few weeks of filing the application with the Landlord and Tenant Board.  At that hearing the Adjudicator will determine the amount of rent in arrears and absent any special circumstances Order that the tenant shall pay the rent arrears within 11 days of the date of the Order.  If the arrears (plus costs of $170) are paid by the date stipulated by the Adjudicator then the eviction Order is void and the tenant gets to stay in the rental unit.  If the arrears and costs are not paid, then the landlord may proceed to have the eviction Order enforced on the date set out in the Order (normally the 12th day after the date of the Order).

What about those situations where tenants simply are unable to pay the rent arrears?  What if the reason for the rent arrears is a lost job, illness, robbery, or some other temporary set-back.  Is the tenancy doomed if the tenant is unable to pay the rent arrears within the time period provided by the Residential Tenancies Act?

In fact, a tenant who is unable to pay rent arrears may still be in a position to maintain their tenancy.  The adjudicator has discretion, under section 83 of the Residential Tenancies Act, to make an Order that is appropriate under the circumstances.  For example, a tenant who has rent arrears may propose a payment plan that extends over months or even a year.  The reason for the rent arrears and the personal circumstances of the tenant are quite relevant for the adjudicator.  If the tenant is able to demonstrate an ability to pay ongoing rent and the payment plan for the arrears is reasonable, then it is quite likely that the plan will be accepted by the Adjudicator. 

Any payment plan that is ordered will be conditional on the tenant maintaining the plan.  If the tenant should fail to meet any of the conditions the Landlord will be able to obtain an eviction Order based on the tenant's breach of the Order.  It is for this reason that it is quite important that whatever payment plan is proposed by the tenant that the plan be reasonable and capable of being met.  Otherwise, the only thing that will be accomplished by the payment plan is a temporary reprieve of the eviction.

Michael K. E. Thiele
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada

Cats & Dogs: How Many Are Allowed?

In the context of residential tenancy law, the ownership of pets and keeping those pets upon a rental complex sometimes causes significant problems for neighbours and landlords.  There is little dispute today that a landlord, in Ontario, may indeed choose not to rent to a person with pets.  There is no prohibition against a landlord screening out prospective tenants because of pet ownership.  Equally true, however, is that once a tenant is in possession of an apartment, a landlord is not able to terminate the tenancy, nor require the tenant to get rid of the pet.  The law allows tenants to have pets regardless of any lease condition wherein pets are prohibited or even where a tenant signs an agreement not to have pets.

The right of tenants to have pets is not unfettered.  The pets must not become a nuisance, those same pets can not interfere with the reasonable enjoyment of the premises by other tenants or the landlord.

A tenant is also required to maintain their pets in accordance with law.  This means that a tenant must look after their pets, properly feed, clean, and care for them.  Failure to do so would qualify as an "illegal act" under the Residential Tenancies Act--as the concept of illegal act under the RTA is broader than conduct that is criminal in nature.  Also, a tenant is required to meet the licencing requirements that are applicable in the local jurisdiction (city, town, municipality).  Failure to abide by the requirements of any such by-law would also be grounds for termination of a tenancy.  An example of an Animal Control By-law (for the City of Ottawa, Ontario) may be found here.

One of the questions I often get from clients who are landlords is how many pets can a tenant have.  There are some people who manage to accumulate a large number of cats and dogs and just the sheer number of these animals in a rental complex can affect the character of the premises in such a way that the landlord feels it necessary to take steps to control the situation.  The answer to the "permitted number" of animals is not set out in the Residential Tenancies Act as this act is silent on the issue.  If a landlord were compelled to use only the Residential Tenancies Act to deal with the impact of the number of animals owned by a tenant the landlord would have to make the case under more general sections of Act dealing with substantial interference with reasonable enjoyment.

However, many landlords will have another manner of approaching the issue of the number of cats and dogs in a rental unit.  Help is found in the Animal Control By-laws of the city, towns, villages, municipalities or townships in which the rental unit is located.  For example, the City of Ottawa, restricts the number of pets (cats and dogs) that are owned to a total of 5 (combined cats and dogs).  If a person owns only dogs, the number is limited to 3.  If a person only owns cats, the number is limited to 5.  Details are here--section 50 for number of dogs, section 65 for number of cats.

What is most helpful about the City of Ottawa Animal Control By-law is that it clearly reflects the serious responsibility of pet ownership.  The scope of the by-law is quite broad and I think it clearly reflects and tries to deal with the problems and issues that commonly arise from pet ownership.  Everything from registration, care, medical attention, number of pets, stoop and scoop, leash laws, roaming cats, micro-chips is addressed.

In my experience the thoroughness of the by-law is useful in that a problem tenant (i.e. a tenant with too many pets, or whose pets are a nuisance) is likely breaching one or more provisions of the Animal Control By-law.  The breaches of the Animal Control By-law very easily becomes legitimate grounds for termination of the tenancy under the provisions of the Residential Tenancies Act.  Furthermore, the existence of the by-law makes it possible for landlords and neighbour tenants to file complaints with the City for investigation and prosecution.  City involvement has the benefit of potentially solving the problem or alternatively providing evidence of illegal activity (i.e. acts breaching the by-law), which the landlord can use as evidence in a hearing against a tenant.

Michael K. E. Thiele
Ottawa Lawyer
Quinn Thiele Mineault Grodzki LLP

The burden of proof: How it's changed

The burden of proof in cases at the Ontario Landlord and Tenant Board has always been on a "balance of probabilities".  This means that the applicant, whether landlord or tenant, has the burden to establish that what is being alleged and claimed in an application is more likely than not to have occurred. 

A number of years ago I had the opportunity to represent a client before the Divisional Court in which the issue of what the burden of proof should be was the central issue in the case.  The allegations against my client, the tenant, amounted to allegations of criminal conduct.  It was our position that when allegations were criminal in nature that the burden of proof should be higher than a mere balance of probabilities.  The logic was that given the seriousness of the allegations a person should not be smeared with findings of criminality based on the application of a test of more likely than not.   Given the admissibility of hearsay, and far fewer procedural protections at an administrative tribunal, we argued that it would be unjust to allow a person to be successfully accused of criminality on a mere balance of probabilities. 

The argument was not that the criminal standard should apply---beyond a reasonable doubt--as that would be too much given that it was still a civil context.  Instead, it was argued that the burden of proof should be somewhere between balance of probabilities and beyond a reasonable doubt.  The argument was that the test needed to be a little bit more strenuous given the findings of fact that the adjudicator was being asked to make.  In the end, the argument was successful and the burden of proof, in matters relating to such unsavoury allegations was held to be higher than a mere balance of probabilities.  This case was decided in 2002 in Bogey Construction v. Boileau.

How the law is viewed today is different than it was in Boegy Construction.  The Supreme Court of Canada has done away with the sliding scale of the burden of proof and has held that there is only one civil standard of proof and that is a "balance of probabilities" applicable in all cases.  This was decided in F.H. v. McDougall in 2008. 

In reviewing F.H. v. McDougall it is interesting to see that some landlord representatives are interpreting the case as over-turning Bogey Construction.  I don't actually believe this is the case.  What the Supreme Court has done in F.H. McDougall is actually imposed the Bogey Construction v. Boileau test on not only cases involving illegal acts but on all cases before the Board.  How is this?

For people with experience before the landlord and tenant board you will have seen that what it takes to prove a case--i.e. on the balance of probabilities---can often be very little evidence.  Evidence by show of hands, representative evidence presumed to apply across several cases, inferences drawn without foundation, evidence being admitted without proof of authorship how it was created or where it comes from--i.e. photos, statements, recordings.  Weighing conflicting evidence and the process of choosing what evidence to accept--and what evidence to reject--is not often well explained.   In this context do the findings satisfy a test of "balance of probabilities". 

The Supreme Court in F.H. McDougall has made it clear that in the civil standard of balance of probabilities that "in all cases, evidence must be scrutinized with care by the trial judge".  The Court went on to say that this means that the evidence to satisfy this test must be "clear, cogent, and convincing".   It is this phrase--clear, cogent, convincing--that I suggest raises the burden of proof to what was being contemplated in Bogey Construction.

As the Supreme Court indicates that there is only one burden of proof in the civil context then it is to be expected that the test must be applied with the same rigour in all civil matters regardless of whether the procedural aspects of the proceedings are relaxed and the rules of evidence are softened.  How can pure hearsay--though admissible at the Board--ever rise to the level of being clear cogent and convincing to the point of meeting the single "balance of probabilities test" that exists in all civil matters?

Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.pqtlaw.com

Evicting a tenant to move in your mother: Corporate Landlord

As many people know, the residential landlord and tenant relationship in Ontario bears a hallmark of security of tenure.  Meaning, once a tenant is in possession of a rental unit it is very difficult for a landlord to regain possession of that unit from the tenant.   Fixed term leases automatically renew on a month to month basis and landlords may only terminate a lease for cause or not for cause grounds as set out in the Residential Tenancies Act.  Simply wanting a rental unit back from a tenant is not a valid nor legal reason to regain possession.

Certainly, terminating a tenancy and evicting a tenant on the basis of cause such as non-payment of rent, impaired safety, illegal act, substantial interference with reasonable enjoyment, is fairly intuitive.  What, however, about the tenancy of a tenant who meets all of the conditions of a lease, always pays the rent, disturbs no one?  For the most part, the tenancy of such a tenant is unassailable subject only to the narrow grounds set out in the Residential Tenancies Act.

One of those narrow grounds is the subject of this article today.  That is, the right of a landlord to seek to terminate the tenancy of a tenant on the basis of landlord's own use.  The twist to this topic today, and what is relatively new, is that a corporate landlord may terminate a tenancy of a tenant for the use of the mother of the single shareholder of the corporation.

It was not long ago that a corporate landlord could not terminate a tenancy to move into a rental unit.  The thought was that a corporate entity had no personalty and hence could not occupy a rental unit for residential purposes.  This position was changed by the Divisional Court in a case called Slapsys (1406393 Ontario Inc.) v. Abrams wherein the Court held that a Corporate landlord could indeed serve a Notice of Termination in Form N12 (Landlord's own use) where that use was for the benefit of a single shareholder of the corporate landlord.  

In a more recent case this principle has been extended to include serving a Notice of Termination (in form N12) for the mother of the single shareholder of a corporate landlord.  That decision is from the Divisional Court in Saleh v Bedford Properties Estates Limited decided on November 19, 2012.

It is apparent that the Landlord and Tenant Board and now the Divisional Court is eroding the security of tenure enjoyed by tenants in the "not for cause" realm.  Based on this decision it is not too difficult to see the current limitation of "single" shareholder being erased altogether.  If the Board is prepared to terminate a tenancy for the mother of a corporate shareholder it becomes increasingly difficult to reject, on a principled basis, a notice of termination for a second shareholder.  Given that a single shareholder is now able to terminate for any of the relations identified in the N12 (children, spouse, care-giver, spouse's parent, spouse's child) aren't the grounds now so broad (given the number of people for whom a corporate landlord can terminate a tenancy) so as to limit the availability of termination to single shareholder corporate landlords decidedly arbitrary?  The rationale for allowing a single shareholder of a corporate landlord to terminate for a large range of relations seems to be a rationale that can easily be suited to corporations that are closely held by the same group of people.

For example, a corporate landlord (owned by a single shareholder) is able to terminate the tenancy of a tenant where that shareholder wishes his spouse to move into the unit.  However, at present, if that corporate landlord is owned by both the husband and wife as shareholders termination is not possible if the wife (or husband) wishes or needs to move into the rental unit (imagine a situation of impending divorce or separation).  In both situations the same person is intended to occupy the rental unit for residential purposes--the only difference is the share structure of the corporate landlord.  In my view, maintaining that position/distinction becomes a matter of form trumping substance which in the landlord and tenant context under the Residential Tenancies Act is precisely something that the Board is directed to disregard.

Michael K. E. Thiele
Ottawa, Lawyer
310 O'Connor Street, Ottawa, Ontario
www.pqtlaw.com    

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