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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• THE NOISY TENANT--how to evict!

When a tenant dies--what happens?

From time to time I get a call from both tenants and landlords about the significance of a death of a tenant in an apartment.  The death of a tenant can raise several issues that most landlords and tenants have never considered.  For example, if a tenant has died--who has the right to enter the apartment?  If the landlord is asked to grant access to the rental unit, to a family member, is there any liability if that family member turns out to not have legal authority but nevertheless cleans out the valuables in the unit (from jewelry to family heirlooms)?  What about the situation where the deceased tenant had a spouse who was not on the lease---must that spouse move out?--can the landlord insist that the spouse move out (suppose the rent is way below market rent).  What can a landlord do about pets in the unit if the tenant has died?  What about perishable items?

As you can see the death of a tenant can raise a number of complicated issues.  For many years, the landlord and tenant legislation in Ontario contained nothing of help to assist in solving these issues.  Fortunately, we now have section 91 of the Residential Tenancies Act which provides some guidance on the effect of the death of a tenant on a tenancy.  The law now provides that when a tenant dies, and there are no other tenants in the rental unit, the tenancy is deemed to be terminated 30 days after the death of the tenant.  It does not appear that the termination is at the end of a term--rather it is a straight 30 days after the tenant's death.

The 30 day time period is a busy time for the landlord depending on how much family was involved with the tenant.  Where the tenant had few people in his or her life, it may be that it will take time to locate next of kin to inform them of what has happened.   During this period of time, the landlord is required, by law, to preserve the property of the tenant--subject to removing and disposing of things that are unsafe or unhygienic (i.e. food in fridge, garbage).  Things like pets, where there is no one to care for them, should be turned over to the local Humane Society.  The locks should be changed to control access (where there are no other tenants in the unit).

Once contact is made with the deceased tenant's family, a landlord should be seeking contact with the executor or administrator of the tenant's estate.  It is unlikely and virtually impossible for the deceased tenant's executor to have a obtained a Certificate of Appointment of Estate Trustee (formerly known as Probate).  Hence, the landlord is unlikely to have the comfort of a Court issued certificate that confirms what person has the lawful right to deal with the deceased's property.

The Residential Tenancies Act attempts to deal with this problem by directing the landlord to afford not only an executor and administrator access to the rental property for the purpose of removing the tenant's property but also to a member of the tenant's family.  While helpful, this part of the law (s. 91(2)(b)) should not be read as absolving the landlord from his obligation to preserve the tenant's property.  The landlord should exercise due caution in opening the door to the rental unit to just any family member.  It would be helpful to confirm that the family member to whom the door is being opened (i.e. access to the deceased's property) is named in a Will as executor (get a copy).  Confirm with other family members, if possible, that the person to whom the door is being opened has the authority.  Get and make a copy of the identification of the person to whom access is granted.  Perhaps make a photographic inventory of the apartment--especially of the valuables.  Control access to the unit and make it clear, in writing signed by the family member, that they are responsible for the contents of the unit.

While the tenancy terminates 30 days after the death of the tenant, there is nothing preventing the landlord from agreeing to extend the termination--or preferably renting the unit to the family as a storage unit for an additional period of time beyond the 30 days.  Care should be taken to get the agreement in writing and liability for the cost should be clearly set out and payment recieved in adavance.

Of the other issues raised above, the one that sometimes causes concern is when there is a surviving spouse who is not, technically, a tenant.  Does that tenant have to move out?  The short answer is no.  How that happens is by virtue of a Regulation passed under the Residential Tenancies Act--specificaly O. Reg. 516/06 s.3.  That Regulation provides that when a tenant dies without giving a notice of termination, and the rental unit is the principal residence of the tenant's spouse, the spouse is included in the definition of "tenant".  Hence the spouse, who was not named on the lease as a tenant, by virtue of the death is deemed to be a tenant. 

Of course, a spouse may not wish to become a tenant, or in other special circumstances, there are exceptions to the application of O.Reg. 516/06 s. 3 under certain conditions.  If a spouse does not wish to be deemed a tenant they need to move out of the rental unit within 30 days of the death.  Other ways that this regulation will not apply is where the housing is exempted housing, a care home, or unit to which section 6 of the regulation applies.  The regulation may be found here.

Michael K. E. Thiele
Lawyer
Ottawa, Ontario, Canada
Quinn Thiele Mineault Grodzki LLP
mthiele@pqtlaw.com

Filthy Apartment: What is a Landlord to do?

What is a clean and acceptable apartment to one person may be viewed as an utter disaster to another person.  To a certain degree, how a person to chooses to live within their own apartment is up to them and them alone.  However, in some circumstances, how a tenant lives and how they keep their home impacts on other tenants, the landlord, and the physical condition of the rental unit and building.

There are some tenants who do not "see" or "smell" the problem in their apartments.  Everything from uncleaned litter boxes, smell of animals, rotting food, unclean laundry, body odours, garbage smells, piled junk (or treasures depending on perspective) and everything in between can cause a serious problem for other tenants or the landlord in enjoying their own units and the common areas of a building.

Some of these cleanliness issues lead to fire-code problems as "hoarding" makes the rental unit inaccessible or a danger to firefighters and anyone who needs to get around the unit in an emergency. Issues like this constitute an illegal act and/or impaired safety, both of which are explicit grounds under the Residential Tenancies Act to serve a Notice of Termination and Evict a tenant at a hearing before the Ontario Landlord and Tenant Board.  This article attempts to address those situations that fall short of impaired safety and illegal act but flow from the same kind of problem which is a complete lack of housekeeping or hoarding.

To be in a position to deal with a situation of bad housekeeping (i.e. smells, rotting food, pet urine smells, etc.), a landlord first needs to understand the legal basis for dealing with the tenant's poor housekeeping and hygiene.  To this end, regard must be had to section 33 of the Residential Tenancies Act which provides that a tenant is responsible for ordinary cleanliness of a rental unit subject only to any condition in the tenancy agreement requiring the landlord to clean it.

It is this section of the Residential Tenancies Act that imposes a duty on the tenant to maintain the apartment that they are renting to a standard of ordinary cleanliness.  Hence, for example, uncleaned dog or cat urine, stacked pizza boxes and uncleaned dishes, filthy bathrooms, dirty counters, grime encrusted floors and stoves, piles of dirty clothing strewn about the apartment, or an excessive amount of stuff stored in the unit (hoarding),  are all examples of the unit not being kept to a standard of ordinary cleanliness.  Of course, the problem lies in assessing what exactly constitutes "ordinary cleanliness".  The phrase is imprecise and open to interpretation.  It is one of those things that you know it when you see it but providing a precise definition that encompasses all of the potential circumstances is impossible.  To that end, my experience at the Landlord and Tenant Board has been that an adjudicator looks at the evidence of the uncleanliness and basically makes a judgment call about whether the state of the apartment is "reasonable".  As far as I know, there is no objective test or criteria to measure "ordinary cleanliness" in any of the caselaw under the Residential Tenancies Act.

So, if your tenant is not maintaining the unit to a standard of ordinary cleanliness, what do you do?  The first thing is to write the tenant a letter advising of your concern.  Perhaps you noticed the condition of the unit on an inspection, a repair, or some other legal reason for having been in the unit.  It would be reasonable to set out in the letter how you became aware of the state of the apartment, that you would like it to be cleaned, and that the tenant has the obligation to keep the unit to a standard of ordinary cleanliness under the Residential Tenancies Act.  If your lease contains a similar provision you may wish to also cite that part of the lease.  Ask the tenant to give you a call to discuss the contents of the letter and in any event to let you know if there is a problem in maintaining the unit to a standard of ordinary cleanliness.  It is important to invite the tenant to discuss the issue with you as some tenants are unable to meet the standard on their own. 

If the inability to meet the standard arises from a disability a landlord may have a duty to accommodate that disability and the inability to meet the standard under the provisions of the Ontario Human Rights Code.  Perhaps you, as the landlord, will have to reach out to community resources to help the tenant get help.  Note that accommodating a tenant under the Human Rights Code does not mean that you have to simply accept or tolerate the problem.  The tenant is still required to comply with a standard of ordinary cleanliness--its just the manner and method of compliance may be different because of the disability that needs to be accommodated.  Asking the tenant if there is an issue is important as it is impossible to accommodate a disability if you are not told about it.

After sending the letter and presuming you hear nothing, you may wish to serve a 24 hour notice of entry for the purpose of inspecting  the unit on the tenant.  If, as a result of that inspection, you find that nothing has improved, it will be necessary to escalate the matter to a more "legal" level.  You will now have to consider whether the problem is such that you need to evict the tenant if the issue is not resolved.  If so, you will need to fill out a Form N5 to inform the tenant that the tenancy is being terminated unless the cleanliness problems are dealt with, within 7 days of the service of the N5 Form. 

As is the case with all N5 forms, it is very important to include a significant amount of detail in the description of the problem.  The form should include: who, what, where, why, and when, in the description and it should also clearly set out what the tenant needs to do to void the Notice.  This is a legal requirement and the failure to provide this information will make the Notice automatically void at law (i.e. you will lose at the Landlord and Tenant Board).

A Form N5 is by its very nature a voidable notice.  This means that if a tenant complies with the Notice--and cleans the apartment to a standard of Ordinary cleanliness within 7 days of receiving the Notice, then the termination of the tenancy is void and they get to stay.  Assuming that the apartment was cleaned, the N5 becomes technically void.  However, the N5 remains useful for a further 6 months, in that if the tenant allows the unit to fall below the standard of ordinary cleanliness within the six months following the service of the first N5, you can serve the tenant with a second N5.  A second N5 is not voidable by the tenant---meaning you can immediatley apply to the Landlord and Tenant Board for an eviction Order.

If the tenant fails to clean the unit to an acceptable standard within the 7 days following the service of the first N5 you can apply, starting on the 8th day after service, to the Ontario Landlord and Tenant Board for an eviction Order. This is done in form L2.

The hearing and eviction process is not easy.  Proving that a tenant is failing to meet the standard of "ordinary cleanliness" requires high quality evidence.  Simply saying that the tenant is "dirty" is unlikely to meet the burden of proof (balance of probabilities) that rests on the landlord.  If you intend to proceed to a hearing you may wish to get photographs, property standards reports, witness statements, and summons third parties to attend the hearing to explain how the tenant is failing to meet the obligation of ordinary cleanliness under the Residential Tenancies Act.  Without compelling evidence the Landlord and Tenant Board is unlikely to evict  the tenant.

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

Ontario: Illegal Security Deposits

From time to time clients bring me some odd leases that have been drafted, not by lawyers, but by landlords themselves.  For the most part the terms are reasonable and generally enforceable.  However, one area that is always problematic, is anything to do with security deposits and "additional charges".  Often, the security deposits seem reasonable and the additional charges for things like late payment of rent charges (sometimes as interest) and charges for "included" furniture are not shocking to the conscience.  The problem though, is that the vast majority of the charges levied in this way are illegal under the Residential Tenancies Act.

With respect to security deposits in Ontario, the only legal security deposit is a rent deposit for the last month's rent that a landlord must collect on or before entering into a tenancy agreement.  This means that it is Illegal to demand a security deposit for things like damage to the rental unit--whether or not the charge is refundable.  A landlord simply can not get "extra" security under the law.  The legal limitations in this regard are set out in section 105 (Security Deposit Limitation) of the Residential Tenancies Act and section 106 (Rent Deposit May be Required).

The restriction on security deposits and what may legally be charged to tenants has many landlord's very upset.  The source of the upset may be summarized as a feeling that the government is unnecessarily curtailing what a property owner can do with their lands--even to the extent of over-riding the terms of a contract willingly entered into by a tenant.  The argument generally goes that a landlord should be allowed to offer his premises on whatever terms he wishes and if a prospective tenant does not like it--then they do not have to rent the unit.  This argument finds a fair amount of favour among land owners and often they point at the laws that apply to commercial tenancies in Ontario to demonstrate that people can successfully negotiate the terms of leases--that work--without the nanny state interfering.  That being said, this simply is not the law in Ontario.

Given the restriction on security deposits, landlords will sometimes try to come up with other creative charges to circumvent the prohibition on security deposits.  The law has answered such schemes with section 134 of the Residential Tenancies Act that says:  ADDITIONAL CHARGES PROHIBITED.  This section makes it illegal for a landlord to directly or indirectly with respect to any rental unit collect or require or attempt to collect or require from a tenant or prospective tenant of the rental unit a fee, premium, commission, bonus, penalty, key deposit or other like amount of money whether or not the money is refundable.  The section goes further to catch even other scenarios (see the link above to read the legislation). 

What I think is quite iumportant to note is the prohibition on even just asking the tenant for such a charge.  I have seen it often enough where a landlord, knowing the proposed charge is illegal, decides to try it on with the tenant.  If the tenant accepts it then the charge is taken---if the tenant objects, the landlord figures that there is no harm in trying.  I note here, that in fact there is "harm in trying" as it is illegal to even propose an illegal charge to a tenant.  Proposing it, may indeed be enough for charges to be laid against a landlord under the Residential Tenancies Act pursuant to the Provincial Offences Act.  In my opinion, this will be more likely where the landlord can be demonstrated to be pursuing such charges knowing full well that the charges are not proper.

The issue of legal and illegal charges and security deposits needs to be of equal interest to landlords and tenants.  For tenants the interest is to avoid paying what the law says need not be paid.  For landlords, complying with the law has its own reward which in this case is to avoid being taken the Landlord and Tenant Board by your tenant or worse, having the Investigations Branch lay charges against you.

Michael K. E. Thiele
Ottawa, Ontario
Lawyer
2012

Bullies in a Housing Complex

BULLIES IN A HOUSING COMPLEX:  I was asked the other day whether there is anything that can be done about bullying that is occuring in a rental housing complex.  In speaking with this client it occurred to me that the fact scenario that she provided is likely fairly common.  In this time, when bullying is being recognized on a national level, I thought it might be interesting to share my views on the legal tools available to combat bullying (against children by children) in the residential landlord and tenant context in Ontario.

The fact scenario that I was presented with was by a mother of a grade 5 student (10 years old) who lives in a housing complex of multi-unit townhomes and row housing.  There are a large number of children living in the residential complex of the same age, as well as older and younger, than her child.  Most of the children in the complex go to the same local public school.  However, there is also a separate Catholic school that her child could attend.  The mom was thinking about changing her child from the public school to the separate school because of bullying issues that just weren't getting resolved at school.  Whether that is the right approach or not is up to her.  Her reason for seeing me though, is that the bullying isn't only happening at school.  The bullying follows the child home from school on the bus and onto the residential complex.  It happens on the complex, at the spot where the school bus picks up and drops off the kids (for both schools) and continues for a bit after the kids get off the bus and walk home.  For a while now, the client has been trying to meet the bus to prevent the bullying but this isn't always possible.  Her child is miserable (but talking about it) and she needs help to fix it.

Initially, the client was contacting me to ask about her options to get out of her lease and how she would go about it.  Only on hearing the story, and why she was looking to move, did we begin to discuss her legal options to stop the bullying while remaining in this housing complex.  In this article I'm focusing only on legal options at the Landlord and Tenant Board as the other options like speaking to the parents of the bullies and speaking to the landlord's superintendent was unsuccessful.

As a landlord and tenant law lawyer, for over 15 years, it is my opinion that the Residential Tenancies Act does provide some legal tools that can force a landlord to take steps to evict a bully and their entire family from the housing complex.  It may not be the easiest case to win, but it is indeed probable if the correct steps are taken.

To understand the legal theory, you need to understand what section 64 of the Residential Tenancies Act provides.  It says:

TERMINATION FOR CAUSE, REASONABLE ENJOYMENT----A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reaosnable enjoymnet of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

On the strength of this section of the Residential Tenancies Act, a landlord, upon receiving complaints from the tenant (mother of child who is being bullied) that her child is being bullied on the residential complex by other occupants (kids of other tenants) of other rental units the landlord could serve a Notice of Termination in Form N5 on the parents of the bullies.  This Notice of Termination would require the tenants to ensure that the bullying behaviour (on the residential complex) ceases immediately.  If the bullying did not stop, then the landlord could file an application to the Landlord and Tenant Board to seek the termination and eviction of the bully's entire family from the residential complex.

The issue you may say, and rightfully so, is how do you get a landlord to take allegations of bullying, name calling, seriously enough so that they will indeed serve a Notice of Termination?  Isn't asking a landlord to intervene on a bullying event requiring a little much of a landlord?  To that, my answer is "look at section 64" above.  Is the bullying behaviour substantially interfering with the reasonable enjoyment of the residential complex of another tenant or with the lawful right privilege or interest of another tenant?  If so, then the bullying between children of tenants is indeed a problem that landlords need to deal with whether they like it or not.

What about the landlord who refuses to take steps?  Where a tenant has an uncooperative landlord, but also does not want to move (can't afford to move), what do you do?  The answer lies in filing a Tenant's Rights Application against the landlord alleging that the landlord is in breach of its obligations under the Residential Tenancies Act.

A integral part of every tenancy agreement in Ontario (express or implied) is that a landlord must provide a tenant AND MEMBERS OF HIS OR HER HOUSEHOLD reasonable enjoyment of the rental unit and the residential complex.  The statutory basis for this statement is section 22 of the Residential Tenancies Act.

The landlord's legal responsibility to take action arises after the tenant provides the landlord with complaints and a reasonable amount of evidence of the fact that their reasonable enjoyment is indeed being interfered with by bullies who reside in the residential complex.  The landlord, being in control of the complex, must then seek to protect the tenant and the children who are complaining.  The landlord does this by serving a Notice of Termination (on the bully's parents) as contemplated by section 64 of the Residential Tenancies Act.  If the Landlord fails to serve this Notice of Termination, and fails to take steps to stop the bullying, then the Landlord is (arguably) in breach of its obligations under section 22 of the Residential Tenancies Act.

The tenant (mom of bullying victim) may seek a remedy for a landlord's breach of its obligations (failure to take action against the bully's parent(s)) under the RTA.  This is done by filing an application against the Landlord in Form T2 at the Ontario Landlord and Tenant Board.  At the hearing before the Ontario Landlord and Tenant Board, the mother of the bullying victim needs to demonstrate that her child is being bulllied on the residential complex by other tenants or occupants of other rental units, that she has complained to the Landlord, that the landlord has done nothing address the problem, and the bullying amounts to what is described in section 64 (substantial interference).  If the tenant is successful in proving these essential elements then the Landlord and Tenant Board may make orders against the Landlord.  An Order may include an abatment of rent, payment of the tenant's costs and expenses, an administrative fine up to $25,000 and ANY OTHER order that the Board considers appropriate.  The scope of the remedial powers is quite broad.  The statutory basis for this power is found in section 31 of the Residential Tenancies Act.

In my opinion, there are legal tools available to tenants whose children are being bullied on a residential rental complex.  There is no legal reason nor impediment to the Ontario Landlord and Tenant Board taking bullying, harassment, and intimidation of children quite seriously, even if it is perpetrated by other children. 

Michael K. E. Thiele

Lawyer

Quinn Thiele Mineault Grodzki LLP

Ottawa, Ontario, Canada

No eviction in winter in Ontario!

Is it the law that a tenant can not be evicted in the wintertime in Ontario?    There is a well ingrained urban myth that the Landlord and Tenant Act (more precisely the Residential Tenancies Act), prevents a landlord from evicting a person in the winter.  The thought is that it is fairly cruel to make someone homeless in the dead of winter with freezing temperatures.  This belief is so pervasive that notwithstanding clear guidance on the Ontario Landlord and Tenant Board website and the advice of lawyers and paralegals to the contrary people still think there is some kind of legal prohibition to a winter eviction.

The fact is that there is absolutely no bar or prohibition against a winter eviction.  The law allows a landlord to serve any of the available Notices of Termination at all times of the year.  Of course, the Notice of Termination must be valid. 

Will the Ontario Landlord and Tenant Board refuse to evict in the winter?  As you may know, if a tenant refuses to move out after being served with a Notice of Termination, a landlord must apply to the Ontario Landlord and Tenant Board for an order evicting the tenant.  The adjudicator may exercise some discretion to delay or deny eviction under section 83 of the Residential Tenancies Act.  The mere fact that it is "winter time" is not a recognized ground for refusing or delaying eviction.  Of course, if there are other extenuating circumstances that high-light a particular hardship and the fact of it being winter time is relevant to that hardship, then an adjudicator may indeed refuse or delay an eviction taking into account that it is "winter time".

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

Winter Insurance Warning--Freeze Risk

Here in eastern Ontario it is that time of year where outside temperatures are dropping below zero.  With freezing temperatures there is a risk of bursting pipes if the an apartment or house should lose sufficient heat to prevent the pipes from freezing.  An obvious solution is to make sure that the heat is turned on at a sufficient level to keep all parts of the home warm.  In this regard, people should realize that water pipes often run along walls, sometimes outside walls and usually inside walls.  Temperatures in these spots are often lower than in the middle of a room.  The point being, that turning down the heat for any extended period of time may lead to significantly lower temperatures around water pipes that lead to freezing and bursting.

The point in this blog today is to highlight a significant insurance requirement that people don't normally realize is mandated by their insurer.  During the heating season the vast majority of insurance companies have rules about how often a home must be inspected for sufficient heat.  In most cases, where a home owner or tenant is away for more than 4 or 5 days, the insurer requires that arrangements are made for a responsible person to enter the home on a daily basis to make sure that there is sufficient heat.  If an insured fails to have their home inspected on a daily basis, and suffers a loss associated with a lack of heat (i.e. a burst water pipe), the insurance company will decline the claim arising from the water damage.  Losses arising from burst pipes or often in the tens of thousands of dollars if not more.

An alternative, allowed in many insurance policies, to daily inspection is for the homeowner or tenant to turn off the water supply in the house and drain the pipes.

If you have travel and vacation plans that will take you away from your home during the heating season  it would be a very good idea to check the requirements of your insurance policy or call your broker to ask what you should be doing to ensure that your insurance coverage is not voided in the event of an incident while you are away.

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

More Heat Please--It's Cold in my Apartment!

A landlord, under the Residential Tenancies Act is responsible for providing tenants with "vital services" as defined in section 2 of the Act.  Vital services, includes "heat" during the part of the year prescribed by the regulations.  The reference to the regulations in the definition of "vital services" requires us to look at Ontario Regulation 516/06 and specifically section 4 thereof.

Section 4 provides that the heating season is from September 1, to June 15 of any given year.  This means that between these two dates a landlord is legally obligated to provide a tenant with heat.  If the tenant does not have the ability to regulate the temperature, then the landlord is required to provide heat so that the room temperature at 1.5 metres above floor level and one metre from exterior walls in all habitable space and in any area intended for normal use by tenants, including recreation rooms and laundry rooms but excluding locker rooms and garages, is at least 20 degrees Celsius.

If a landlord fails to provide heat in accordance with the provisions of the Residential Tenancies Act and the Regulations, a tenant may file an application to the Ontario Landlord and Tenant Board to have the Board determine what the appropriate remedy is.  Note that one application the tenant may consider bringing is based on section 29 of the RTA which allows the tenant to seek an Order that the Landlord, Superintendent or agent of the landlord has withheld the reasonable supply of heat (any vital service) ... or deliberately interefered with the reasonable supply of any vital service, ... .  For landlord's who are defending any such application you can see from the wording of section 29 that liability is not absolute.

As we start to get into winter and freezing temperatures, tenants should also be reminded that windows should be kept closed or at least not left open and unattended.  Central heating systems may not adjust for freezing temperatures inside a rental unit (i.e. no thermostat) and accordingly there is a risk of pipes freezing and bursting.  The damage caused by the floods and all of the repairs costs in all of the units affected as well as the cost of the replacement of the property that is damaged will often be the responsibility of the tenant who left the window open.

Michael K. E. Thiele
Landlord and Tenant Lawyer
Ottawa, Ontario, Canada

Review Order--Ontario Landlord and Tenant Board

About two weeks ago I represented a client at the Ontario Landlord and Tenant Board seeking the eviction of a tenant on the basis that he impaired the safety of other tenants, committed an illegal act, and interfered with the reasonable enjoyment of the premises by other tenants and the landlord.  The hearing was long for Board standards in that it took most of the day.  In proving the allegations we called 8 witnesses who testified as to the tenant's conduct.  Each of these witnesses was cross examined by the tenant's lawyer.  It was a long day and the decision was reserved (meaning the adjudicator was going to decide later and mail us a copy of his decision).

My client was elated to receive an Order in the mail wherein the tenant's tenancy was terminated and he was ordered evicted.  Given the length of this tenant's tenancy he was given a month and a half to move out after-which time my client would be entitled to file the eviction with the Sheriff for enforcement.  All of this was great for my landlord client.

In passing, my client asked me if this was final and whether anything could happen to stop this eviction.  To that question I advised that the tenant had two options. The first was to file a Request to Review and the second was to file an Appeal to the Divisional Court.  The tenant has the right to exercise either of these options within 30 days of the date of the decision.

About two weeks went by and neither my client nor I heard anything from the tenant.  My client was hopeful that the 30 day period would pass without an appeal or review.  Then, approximately two and half weeks after the original eviction order my client received in the mail a Review Order.  Not having been advised of any review hearing or any request to review my client was concerned about what this meant.  Hence, this article that briefly outlines the Review procedure.

Any party (Landlord or Tenant) and any person directly affected by an Order of the Board may, upon payment of the requisite fee, file a Request to Review with the Ontario Landlord and Tenant Board (Rule 29--Ontario Landlord and Tenant Board Rules of Practice).  Once the Board receives the Request to Review, an adjudicator will review the Request to Review to determine whether the request discloses a prima facie case.  This means that the adjudicator determines whether there is any apparent merit to the Request to Review.  The Request to Review does not have to be proved--it just needs to be strong enough for an adjudicator to reasonably conclude that there may have been an error in the Order or in the proceeding that needs to be more closely examined.

Where an adjudicator determines that there is no merit in the Request to Review, then the adjudicator will write an Order dismissing the Request to Review without holding a hearing.  In such an instance, the other side will quite possibly be unaware that a Request to Review was filed until they receive the Review Order denying the Request to Review.  That is what happened in the case I described above.

Where an adjudicator is satisfied that the Request to Review does disclose an issue or ground that calls into question  the validity of the Order (i.e. misapprehension of the evidence, procedural fairness issues, ability to participate), then the adjudicator will send the case to a Review Hearing.  When this is done, the original eviction Order is stayed and becomes unenforceable until the Review Hearing is concluded.

At the Review Hearing, the party who made the Request to Review must prove that there was some kind of error warranting a review.  The adjudicator who conducts the Review Hearing is not necessarily the same adjudicator who sent the Request to Review to Hearing.  Hence, it should not be presumed that just because a Request to Review was sent to hearing that the Review will be allowed.

Presuming that the party who requested the Review is successful in showing that there was an error of some kind that was important enough, the adjudicator conducting the review hearing will set aside the Order that is under review.  At that stage, the adjudicator hears the original case, all over again, from scratch.  None of the evidence from the first case is normally used.  It is as if the first case never happened.  Therefore, it is important for the applicant to be ready to prove the case all over again in the event that the Request to Review results in the setting aside of the original Order.

There is much to discuss in relation to Review Hearings that I won't go into in this article.  However, I will suggest to anyone contemplating filing a Request to Review that they take their time to set out exactly what the grounds are and to be precise.  Read the Rules and the Guidline published by the Board on its website.  A Review is not an avenue to re-argue the case--at least not initially.  It is important to put all of your best arguments forward in the written Request to Review.  If you hold back--assuming that you will give it your best at the Review Hearing--you may be denied that opportunity by the reviewing adjudicator who dismisses the Request to Review without holding a hearing.

Michael K. E. Thiele
Lawyer
Ottawa, Ontario

Paying rent in cash----smart?

It always comes as a great surprise to me that many tenants pay their rent in cash.  They pay the rent in cash, often forget to get a receipt, lose the receipt, or don't even ask for one.  These are very trusting tenants.

I'm often confronted with the cash paying tenant at the Ontario Landlord and Tenant Board.  Most often when I am representing that tenant.  We are usually defending an application for termination of the tenancy for non-payment of rent.  As is my usual practice, we go through each month of claimed rent arrears, line by line.  It is in doing so that the tenant swears to me that the rent is paid---paid in cash.  That's when I ask the tenant if they have a receipt or any proof that the cash was delivered to the landlord.  The answer is often naive and the tenant tells me that the landlord knows the rent is paid.  Sometimes the tenants can show a withdrawal of the exact amount of cash from their bank account and we try to infer that the rent must have been paid from this withdrawal.  Most often though, there is no proof of payment.

The burden of proof in any application at the Ontario Landlord and Tenant Board is on a balance of probabilities.  In a non-payment of rent case, the burden is easily discharged by the landlord who only has to say " I didn't get the rent for X month(s)".  The burden then shifts to the tenant to prove that the rent has been paid.  How do you do that without a receipt?

The simple answer is that most of the time you can't  The Landlord and Tenant Board imposes the proof of payment on the tenant.  Without a receipt, cancelled cheque, direct deposit slip, there simply isn't any evidence of proof of payment.  Of course, a tenant's own testimony is evidence, and perhaps there is a circumstance in which the adjudicator would prefer the tenant's oral evidence that the rent was paid over the landlord's oral evidence that the rent was not paid.  However, those instances are very few and far between.

Tenants who pay cash, and who don't keep their receipts, risk having to pay the rent twice should the landlord deny receiving the rent in cash.  This is profoundly upsetting and quite expensive for tenants who are often paying the rent in cash because they can't afford a bank account or because the landlord insists on getting the rent in cash.

Tenants should be aware that a landlord can not insist on getting rent in cash.  Even if a tenant gets a receipt, it is better to pay the rent in a form that is traceable.  Direct deposit, cheque (get copy of cancelled cheque), money order, all of these are better than paying in cash.  A lost receipt for cash is as bad as never getting a receipt in the first place.

No written lease--Am I in trouble?

From time to time I will get a call from a tenant who is at his/her wits end.  They are having some kind of problem with their landlord and they feel that they don't have any recourse because the landlord never gave them a copy of their lease or they never actually signed one.  Invariably, the landlord has made the tenant feel that they could be forced to leave in short Order if the landlord chose to demand it--all because the tenant does not have proof of the lease or because a lease was never signed.    

The fact is, in Ontario, a tenant has all of the protection of the Residential Tenancies Act even if there is no written lease.  At law, a residential lease between a landlord and tenant may be written, oral, or implied.  Each form of lease is just as valid, just as legal, and provides just as much protection as any of the other forms of lease.  There are a few differences of course, but most relate to the difficulty associated with proving the terms of the lease.  A written lease will speak for itself from the paper it is written on.  An Oral lease requires an adjudicator to listen to what the Landlord and Tenant say were the terms of the lease and choose what the parties agreed to.  In an implied lease, a lease is created by the conduct of the parties or arises from the circumstances surrounding the occupation of the premises.  Often, the terms of Oral leases are ascertained by the conduct of the parties (i.e. amount of rent is determined by the amount of rent paid on a monthly basis).

The point here is that tenants do not need to worry that they have no rights just because there is no written lease.  In fact, it is fairly common for there to be oral lease agreements and all of these tenants and landlords have the same rights as parties who do have written leases.

In Ontario residential tenancies law it is important to remember that landlords and tenants are NOT free to negotiate the terms of their own deal.   The Residential Tenancies Act imposes certain minimum standards, rights, and responsibilities on both landlords and tenants regardless of how the tenancy agreement is formed.  In fact, if the parties agree to terms that are contrary to the provisions of the Residential Tenancies Act those terms are deemed to be void by the law--see section 4 Residential Tenancies Act.

As you should gather from this article, Ontario Residential Tenancies law provides significant protection to tenants regardless of how they became tenants.  The law gives all tenants certain basic rights that can not be negotiated away and can not be over-ridden by contract.  Any landlord who tries to impose terms that are contrary to the Residential Tenancies Act can be charged under the Provincial Offences Act and be subject to fines ranging from $25,000 to $100,000 (see section 238 Residential Tenancies Act).

Michael Thiele

310 O'Connor Street

Ottawa, ON K2P 1V8

Tel: 613.563.1131

Ontario Landlord and Tenant Board: Appeal Options

The Ontario Landlord and Tenant Board hears cases in a summary fashion.  The Board is directed, by the Residential Tenancies Act, specifically section 183, to adopt the most expeditious method of determining the issues in a case that still affords the parties with an adequate opportunity to know the issues and to be heard on the matter.  In practice, this means that the traditional manner of presentation of evidence in Court is not necessarily followed.  An adjudicator has a very wide latitude to decide how a case will be heard.  Often, the adjudicator will proceed in an inquisitorial manner and once the questions are asked reach conclusions and make a decision based on the questions asked. To that end, the parties need to be assertive about their interests if it seems that they are not getting the opportunity to present evidence that they think is important.

Sometimes, the hearing procedure breaks down, evidence isn't heard, procedural fairness and natural justice is denied, or the adjudicator makes a legal error or has a serious misapprehension of what the evidence before him actually was.  Sometimes, the mistakes are small but cumulative leading the adjudicator to make the wrong decision.  If you are on the wrong end of a bad decision, what can you do?

Like many Administrative Tribunals, the Ontario Landlord and Tenant Board has an internal review process.  That review may be initiated by filing a Request to Review, which form is available on the Landlord and Tenant Board website.

The Review process is not automatic.  In order for a review hearing to be scheduled, the person requesting the review must demonstrate in the Request to Review Form that it appears that there may have been an error in the decision.   If successful in establishing that there may have been an error the Board will Order a Review Hearing to take place.

On the date of the Review Hearing, the party who requested the review will be required to convince the adjudicator hearing the Review that there was an error.  If successful in this regard, then the adjudicator will set aside the Order and a new hearing will take place in which all of the evidence has to be lead again---this is often called a hearing de novo. 

A big mistake that parties often make in filing a request to review is that they just re-argue the points they made at the hearing.  This is not the purpose of a Request to Review and if you proceed in this way it is likely that the Request to Review will be dismissed without a hearing.  Before filing a Request to Review I highly recommend that you read the Board's Guideline #8 which describes the purpose and methods to follow in filing a Request to Review.

AN APPEAL

The second way of challenging a decision of the Ontario Landlord and Tenant Board is by filing an appeal to the Ontario Superior Court of Justice, Divisional Court.   An appeal to this Court is restricted and limited to a question of law (see section 210 of the Residential Tenancies Act).   This means that in the Divisional Court the findings of fact made by the Board are generally not open to be disputed before that Court.  The Divisional Court is only going to intervene in the decision if it can be demonstrated that there is an legal error with respect to the decision or if there was a problem in the procedure of the hearing. 

To be frank, an appeal to the Divisional Court is exceedingly complex.  It is highly improbable that anyone but a lawyer could be successful in filing an Appeal to the Divisional Court.  Unlike the Landlord and Tenant Board proceedings, an appeal to the Divisional Court follows the technical Rules of Civil Procedure --see Rule 61.

A STAY OF PROCEEDINGS

If you are considering a Request to Review or an Appeal it is because the Order you have received is somehow wrong.  If, for example, you have been ordered evicted you will be nervous about the timing of the appeal and the date by which you were supposed to move out.    On an institutional basis, both the Board and the Court recognize that the Review Process and the Appeal Process will take a rather long time.  Hence, the Board will consider granting a Stay of any order, if it is requested in the Request to Review and a good argument is made for why the Order should be stayed pending the Review Hearing.

Note that an appeal to the Divisional Court results, automatically, in a stay of the Order being Appealed.  This means that the Order of the Board can not be enforced until the Divisional Court deals with the appeal or the Landlord brings a motion to lift the Stay.

Michael K. E. Thiele

Lawyer

www.pqtlaw.com 

Help!--My Landlord wants to live in my apartment

In Ontario, the residential landlord and tenant laws provide tenants with security of tenure.  This means, that a tenant, even after the expiry of a lease, is automatically entitled to continue living in the apartment/rental unit on the same terms and conditions as under the expired written lease.  The tenancy becomes a month to month tenancy and the tenant has the legal right to continue the tenancy indefinitely.  This means that the landlord is not entitled at law to regain possession of the apartment just because the lease ended.  It also means that a landlord has no absolute right to possession of the apartment.  Once the tenant is granted a leasehold interest in the property it is intended by the law for a landlord to have limited options to regain possession.

Most people understand that a landlord can seek to terminate a tenancy and evict a tenant where the tenant is breaching the terms of the lease or the Residential Tenancies Act.  Things like non-payment of rent, interference with reasonable enjoyment (music, cleanliness, etc.), illegal act, are all fault grounds for termination of the tenancy.   The tenant's security of tenure is terminated by the tenant's conduct.

What though, about the model tenant?  The tenant who always pays the rent, doesn't cause a problem, and in fact looks after the landlord's property as if it were their own.  Can such a tenant ever be evicted?

The idea in the Residential Tenancies Act is that the model tenant should be able to live in a rental unit indefinitely.  There are only a few "non-fault" grounds for termination of the tenancy.

The one I'm writing about today is Termination For Landlord's Own Use.  Where a tenant is at the end of a term, or on a month to month, the Residential Tenancies Act does allow a landlord to serve the tenant with a Notice of Termination based on the landlord's good faith requirement to use the rental unit for residential purposes (for himself, his spouse, parent, spouse's parent, or person providing personal care services to these individuals.  For those interested in the technical wording see section 48 of the Residential Tenancies Act.

The form that a landlord serves on a tenant to terminate the tenancy for own use is Form N12.  This form must be served at least 60 days prior to the proposed terminate date.  The termination date must be the last day of a term (usually the last day of a month as this is the day before rent for the next term is due).  The 60 days of notice is a minimum notice and certainly the landlord may provide much more time to a tenant.

Sometimes, the N12 is used to terminate a tenancy--not because the landlord actually intends to occupy the premises but for other alterior motives.  What are some examples of those motives?  Well, perhaps the rent is really low and the landlord would like to kick out the sitting tenant so that the unit can be re-rented for a much higher market rent.  Perhaps the sitting tenant makes complaints to property standards thereby costing the landlord money in having to comply with property standards orders.  Or maybe, the landlord and the tenant have had a falling out about something that is not grounds for termination of the tenancy but which nevertheless results in the landlord wanting to get rid of the tenant.

When the N12 is used in this way, a tenant has the option to force a landlord to prove the good faith of their application.  This is done by refusing to move out and insisting that the landlord bring an application to the Ontario Landlord and Tenant Board to prove the good faith of their intention.  If the tenant can cast serious doubt on the landlord's "good faith" intention then the application will be dismissed.  Further, if the tenant can show that the N12 was served in retribution for the tenant enforcing her rights under the Residential Tenancies Act, complaining to a government body, for organizing a tenant association, or because the unit is occupied by children--then the Landlord and Tenant Board must refuse the application to terminate the tenancy (see section 83(3) of the Residential Tenancies Act).

A word of caution, while a tenant may certainly put the landlord to the test of proving his good faith, my experience is that it is often difficult to disprove the landlord's sworn evidence that he has a good faith intention to occupy the premises for residential purposes.  If the only contradictory evidence that a tenant has is a "theory" then they are unlikely to be successful.  To that end, if there are messages, statements, notes, letters, witnesses who heard the landlord express a contrary intention, then it is critically important for that evidence to be brought to the hearing.  Great evidence, to disprove good faith, that I have used in cases includes: real estate listings showing the property has been put up for sale by the landlord, photos of the Landlord's actual house to show that the apartment he is moving into is smaller than his current garage.  I've had phone messages from landlord's that demonstrate how angry the landlord is with the tenant for complaints, and I've had client's who have surreptitiously recorded landlords admitting that the only purpose of the N12 is to get the unit back to get higher rent from a new tenant.

What about the situations where the landlord does indeed intend to occupy the apartment in good faith?  Let's assume that there is nothing nefarious.  Does the tenant have any options other than to move out?

In fact, the tenant does have a way of resisting the termination of the tenancy and in my experience they tend to have a fair amount of success in at least delaying the eviction to for an extended period of time.  To understand why the Board would refuse to terminate a tenancy you have to consider the circumstances of a tenant.  Imagine a family with children in school.  The N12, if enforced, would result in the children not being able to finish the last month in their current school (assuming that the family couldn't rent in the same area).  What of a tenant who has severe disabilities, has been living the apartment for 10 years, and simply can't pack and find an accessible unit and move in 60 days.  I think you get the point.  There are circumstances where an N12, served in strict compliance with the law, imposes profound hardship on the tenant if the tenant is required to move out by the date stipulated in the notice.

I suppose it is only fair, if we're considering hardship stories, to also realize that a landlord serving an N12 may be serving it because of difficult circumstances as well. Perhaps the landlord needs the apartment due to a marital breakdown.  Maybe the apartment is for a child who is returning home due to injury, disability, etc..  My point, is that hardship does not rest only with a tenant.

The hardship angles, and whether 60 days is enough, may be considered by an adjudicator under section 83 of the Residential Tenancies Act.  This section gives the Landlord and Tenant Board the discretion to extend the time or even refuse eviction depending on the circumstances.  In my representation of tenants in N12 cases I have had the Board extend the termination date by more than a year as well as outright refusals.  And this has been in cases where the good faith of the landlord has not been in question.  Depending on the circumstances, an adjudicator has the power to ignore the 60 days and do "justice" as between the parties.

Doing "justice" is often a subjective concept and open to critcism depending on one's views.  Certainly, with respect to N12's, there is a camp that focuses the argument on property rights and that the landlord, as owner of the land, should not have to tolerate the presence of the tenant any longer than the 60 days set out in the Residential Tenancies Act.  To open the 60 days to the discretion of the adjudicator is an affront to the rights of property owners.  The flip side, of course, is that the tenant did nothing wrong, pays the rent, and is of lesser means than the Land Baron (landlord) and therefore the landlord is in a better position to deal with the problem of not getting the unit back than the tenant is in dealing with the problem of having to move in short order.

For me, I have argued both sides of this position depending on who my client is.  To that end, my personal view does not come into it very often.  If asked, I would offer the following framework to determine what is appropriate when faced with two compelling and truthful parties.  I would look at the landlord and tenant relationship from the position of who is more innocent in the face of the application.  In this context of an N12, I would favour a hardship argument from a tenant (and try to ameliorate that hardship) on the basis that the tenant has a legal right of security of tenure and the landlord knew that when he rented the unit to the tenant.  While the tenant is deemed to know that an N12 could be served, this was only a contingent possibility whereas the notion of security of tenure attaches from the moment the tenancy commences.

So, in summary, the N12 is a fairly potent method of termination that is normally effective.  The Landlord and Tenant Board does recognize the legislature's intention to allow property owners to recover their apartments for this reason and hence it is difficult for a tenant to defeat such an application.  Mere inconvenience is not enough to deny the landlord its legal right to regain possession of  the unit.  However, in appropriate circumstances, the Landlord and Tenant Board retains sufficient discretion to delay or deny such a application where to grant the landlord's request would be fundamentally unfair.

Michael K. E. Thiele

Lawyer

Ottawa, Ontario, Canada 

Who practices Landlord and Tenant Law?

I have been asked on many occassions how I managed to become so involved in residential landlord and tenant law.  The truth of the matter is that it happened entirely by accident.  In the mid-1990's when I was working in my first law firm I was asked by a colleague to assist a small religious non-profit corporation with a problem they were having with a residential tenant.  Given that it was early in my career I looked at any work as an opportunity to broaden my knowledge and experience.

In resolving the problem for this client it became apparent that very few lawyers were actually practicing Landlord and Tenant law.  In those days, residential landlord and tenant matters were governed by the Landlord and Tenant Act.  Legal proceedings took place in the Courthouse before the registrar at 9:00 a.m. and Superior Court Judge at 9:30 a.m. if the lawyers or the registrar had not managed to strong arm the parties into a settlement.

The 9:30 a.m. appearance before a Judge could be a harrowing experience.  The authority of the Judge's office was readily and swiftly deployed.  Only parties with the most serious cases, and confidence in them, would have the nerve to survive this session.  Given that the 9:30 a.m. block was half an hour before the "real" motions, the Court was intolerant of foolishness and those who were unprepared.  It was normal for an entire docket of cases to be cleared in less than 30 minutes.

It turns out that I enjoyed the Landlord and Tenant work. It called for rather pure advocacy, spur of the moment judgment calls and negotiation.  The subject matter, while not recognized within the bar as being in any way glorious, certainly captured the serious attention of both landlords and tenants alike.  Tenants because the outcome would determine their future address and landlords because the problem (usually non-payment of rent) was directly impacting the profitability of their business.

Notwithstanding that this area of law interested me, it soon became clear that this work did not command significant legal fees.  Ultimately, I think it is this fact that explains why not many lawyers pay much attention to this area of law.

In the heady days of the 1990's (compared to today for sure!) Ontario Legal Aid was a panacea for lawyers interested in poverty law issues--which included rental housing.  Legal Aid would fund tenant cases where the landlord was breaching its obligations under the law (maintenance, repair, illegal entry, breach of quiet enjoyment) and certainly it would almost always defend an application against a tenant for termination and eviction from their rental unit.  Having an interest in social justice, liking the cause of the under-dog, and having the ability to earn a living with "volume" I never said "no" to any landlord and tenant file regardless of the underlying circumstances.

Sometimes, not saying "no" is all it takes to become the go-to-guy.  Within a few years I was receiving referrals from lawyers and law-firms from all over.  Everyone, it seemed, was happy to refer landlord and tenant cases to someone who knew the "ins and outs" of this area of the law.

If my success as a landlord and tenant lawyer began in the mid-1990's, it became even more so with the passage of the Tenant Protection Act (TPA).  The TPA took landlord and tenant matters out of the Courts with the creation of an administrative tribunal known as the Ontario Rental Housing Tribunal.  This Tribunal specialized in Landlord and Tenant cases, was located apart from the Courthouse, and it had its own Rules, Forms, and processes.  The departure from the procedures under the Landlord and Tenant Act were significant and therefore, the lawyers who once dabbled, now gave it up completely.

Subsequent to the TPA, the Residential Tenancies Act (RTA) was passed and it replaced the TPA.  The Ontario Rental Housing Tribunal was renamed the Ontario Landlord and Tenant Board.  The administrative law nature of the Board did not, and has not, changed.  For me, what changed was the recognition by landlords that the practice of law before this Tribunal was becoming more specialized.  No longer were cases being resolved on the stern resolve of Superior Court Judges in 30 minutes or less.  The Tribunal, by the nature of its structure, gave parties much more time and opportunity to fully air their positions.  Cases became longer and more complex.  Parties are now asserting their rights and positions especially in the face of a "no costs" environment fostered by the Tribunal/Board.

For several years the playing field between landlord and tenant was virtually level.  As a lawyer representing both sides, I heard both landlords and tenants, equally and vociferously, complaining about the inequity in the law.  Both sides thought (and still today feel) that the law is weighted in favour of the other side.

In my view, the law surely has its idiosyncrasies, but for the most part I feel that it is balanced.  The balance arises from the fact that the law is entirely knowable---i.e. it isn't arbitrary.  Any landlord and/or tenant is able to know the rules and follow them if they care to learn the law.  If the law is understood, and the Rules followed, the outcome in most cases would not offend most people's sense of justice and fairness.  I have always felt, whether I am on the side of the Landlord or Tenant, that a just result could be achieved by guiding my client to act in accordance with the rights, responsibilities, and obligations imposed under the governing legislation (LLT, TPA, RTA).

The unfairness that landlords and tenants often rail about generally arises in circumstances where the person hasn't bothered to learn the law.  Such people often think that the law is an ass and should not apply to them because their values and ideas of what the law should be are somehow superior to the will of the provincial legislature.  Needless to say, this view doesn't carry much sway before the adjudicators hearing cases.

In recent months I have become concerned that the playing field is becoming less even.  The problem arises because the Legal Aid system, run by Legal Aid Ontario, is broken.  Since the mid-1990's, Legal Aid slowly chipped away at the services it covered and provided to low income Ontarians.  This is significant because low income Ontarians are the ones most affected by Landlord and Tenant laws.  Tenants with money and resources don't stay around to fight with crazy landlords (they just give their notice and move), and landlords normally don't pick fights with tenants who have resources as these tenants usually pay their rent.

Legal Aid, long ago, stopped funding any case where the tenant was trying to fight an injustice caused by a landlord (via private certificates that could be taken to a private lawyer).  Legal Aid restricted its funding to resisting applications for termination of tenancies.  Even this was circumscribed by a new requirement for tenants to seek help first from a Community Legal Clinic.  Only if the Clinic was not able to help the tenant would Legal Aid authorize a tenant to retain a lawyer to help them (albeit at a substantially discounted hourly rate with a capped number of hours).  While making it more difficult to get legal help, at least Legal Aid Ontario allowed for the possibility of tenants to get a lawyer if they really pushed.

That is no longer the case in the East Region of Ontario.  As of a few months ago, Legal Aid Ontario cut all funding of Legal Aid Certificates to tenants.  Regardless of the circumstances, if a tenant can not get help at a clinic, they are simply out of luck.  The fact of the matter is that Community Legal Clinics have an endless number of clients in all of the poverty law areas of practice.  In Ottawa, the simple reality is that these clinics have so few resources to bring tenant applications that it is a fair comment to say they never do.  With respect to applications against tenants, there is a profound pressure to negotiate resolutions in the face of a massive caseload.  Difficult clients, especially those with mental health problems, are often overlooked as these tenants even have a difficult time asking for help.

One can see the beginning of a trend where vulnerable tenants are not fighting.  Many tenants now receive the limited advice of duty counsel which means they get about 10 minutes of legal guidance to run the case themselves.  I have watched tenants, who have good cases and who would have won had they had a lawyer, give up and lose.  These days, with the elimination of Legal Aid funding, I am representing many more landlords than in the past.  In one case, a tenant I was seeking to evict advised the Board that she was told not to bother fighting the claim because Legal Aid told her that she didn't have much of a chance so they wouldn't even represent her.  Anecdotal perhaps, but this trend is increasingly apparent to those of us who practice before the Landlord and Tenant Board.

Some of you may wonder how I'm getting my fill of social justice and fighting for the under-dog.  I'm pleased to say that I'm enjoying taking the occasional "good" case without charge.  As people who love their careers can attest, while money is important the intangible rewards of interesting work can readily compete for one's feeling of satisfaction for a job well done.

Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
310 O'Connor Street
Ottawa, ON K2P 1V8