This week I have been asked a couple of times how one goes about getting the money that the Landlord and Tenant Board has ordered someone to pay. There is a bit of surprise on the part of many people when they discover that the Landlord and Tenant Board may order a person to pay money to another person but when the person fails to pay--absolutely nothing happens. The fact is, the non-payment of an Order or a Judgment does not cause the government--Federal or Provincial---to do anything. There is no "office" that is in charge of making sure that people pay what they are ordered to pay.
The task of making sure that an Order of the Landlord and Tenant Board is complied with falls to the person who won. So, if you are the landlord and the tenant has been ordered to pay you a sum of money (for rent arrears, damages, costs, or any other reason), and the tenant has failed to pay, it falls to you to actively pursue the payment of the money. Otherwise nothing will happen.
The same is true for tenants. If you have obtained a judgment against your landlord for the payment of money, for whatever reason, and the landlord refuses to pay, you must take active steps to collect the judgment. Otherwise, absolutely nothing will happen.
So what are these steps? To answer this question I will make one significant assumption. That assumption is that you went through the process at the Landlord and Tenant Board and you have an Order from the Board that requires the opposing party to pay you money (for whatever reason).
Presuming that you want to try to enforce the Order yourself (as opposed to hiring a collection agency to collect your judgment), you will be taking the Order that you have, from the Landlord and Tenant Board, to the nearest Ontario Superior Court of Justice Small Claims Court. The reason for this is that the Residential Tenancies Act does not have any built in enforcement mechanisms for its judgments. To enforce an Order under the Residential Tenancies Act (even for eviction), you take the order to the Court for enforcement.
Money orders at the Landlord and Tenant will be for sums under $25,000 as this is the maximum jurisdiction of the Board. It also happens to be the same maximum monetary jurisdiction as the Ontario Small Claims Court. As such, I recommend that you enforce your money order through the small claims court as it is simpler (and cheaper) than enforcing it through the higher levels of the Superior Court of Justice (though you may do so if you wish).
Talking in big picture terms, what you will be doing with your Landlord and Tenant Board Order is that you will be converting it to a judgment of the Ontario Small Claims Court. Once you've done that, you will enforce the Judgment in the same way that you enforce a Judgment of the Small Claims Court (i.e. garnishment, writ of seizure and sale, debtor examination, etc.). Once you complete the conversion of the Order to a Small Claims Court judgment you will need to educate yourself on the mechanisms of enforcement as none of these things happen automatically either.
The conversion process is basically a paper shuffle. You will need to have an original copy of your Landlord and Tenant Board Order and you will need to take it to the Small Claims Court counter. There you will pay a small fee and you will then get a new Small Claims Court file number and the Board Order will be recognized as a Small Claims Court Judgment. Once that is completed you will need to decide how you want to enforce the Small Claims Court Judgment and then there will be a number of other forms to fill out in accordance with your decision. For example, if you decide to issue a garnishment to the tenant's employer, you will need to fill out the garnishment forms as set out under the Rules of the Small Claims Court. My point here is that the enforcement process are now under the Rules of the Small Claims Court and not pursuant to any Rules of the Landlord and Tenant Board or the Residential Tenancies Act.
Enforcement of Judgments is a tedious and time consuming task. Often, the debtor (person who owes you money) is difficult to find, broke, or hiding their assets. To be successful in debt collection you will need to be patient, do some detective work, and frankly have a little bit of luck. If this doesn't sound like something you would do, consider hiring a collection agency to pursue the Judgment for you as they will do all of the work for a percentage of the Judgment.
Michael Thiele, Lawyer
QTMG LLP
Ottawa, Ontario
Sunday 28 April 2013
125 comments:
IMPORTANT NOTICE
Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.
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can you bring a boarder to small claims if the judge at the tenant board awarded no cost to either party.....but not written in the judges official letter of the final decision made .
ReplyDeleteThanks for the comment. The jurisdiction to award costs (legal fees, disbursements) belongs to the process that you went through--in this case the Ontario Landlord Tenant Board. The Board's decision not to award costs or to be silent on the issue does not now mean that you have an independent cause of action for costs in the Small Claims Court. So the short answer to your question is "no". However, the issue of costs is something that the Board should have dealt with in the decision---especially if it was raised in the argument before the Board. You could raise the issue of costs on a Request to Review and even potentially on an appeal to the Divisional Court. Before doing either of these things you should review the Board's cost rules and the guideline on costs. In my view, both a Review and an Appeal would be incredible long shots--with the appeal carrying some significant costs risk to you if you lose. Costs for the most part--at the Board---are very rarely awarded to any significant degree--the presumption in fact is against awarding any amount of meaningful costs (other than the application fee). Appealing a "costs" award is also difficult as costs are quite discretionary as to quantum though you will find caselaw that does deal with appellate review of costs awards. Before taking any action in relation to "costs" you may wish to consider doing some legal research on the point---using www.canlii.com is a fantastic free legal resource. Good luck.
ReplyDeleteIf cause, order property and creditor are in one jurisdiction and debtor is in another where do you file order
ReplyDeleteThanks for the question. I can only answer in relation to an Ontario order/judgment and enforcement of that order in Ontario. Different rules apply for the recognition of foreign orders or orders from other provinces.
DeleteIn the context of Landlord and Tenant. Let's presume you have done the paper shuffle described in the article above and lets say your judgment is now out of the small claims court. Your enforcement tools are those of the small claims court. This means: garnishment writ of seizure and sale. The writ of seizure and sale against land has to be filed in the judicial district in which the debtor's property is located. Your writ will only capture the property in the judicial district covered by the Courthouse/landregistry in which you file the writ of seizure and sale.
The finer points of garnishment "process" are a bit fuzzy for me as I've come to rely on my clerk to know this. Guessing isn't worth it so the best I can tell you is to ask at the Court enforcement office at your local courthouse. Bring with you the Judgment, the address of the debtor and the address of any organization or employer that you want to garnish. The court enforcement office should be able to tell you which Court Enforcement office/ Sheriff's office you have to work through.
Good luck.
Michael Thiele
www.ottawalawyers.com
Court clerk will not comply with s.6 relating to cause of action to allow for registration of ltb order (Ontario) says only applies to plaintiffs claims
ReplyDeleteIt's difficult to comment as this is unusual. If you are able to scan a copy of your LTB order I'd be pleased to take a look at it.
DeleteCan u have a garnishment hearing at small claims court if you have a stay order at LTB? Request for review hearing granted because board members made 2 completely different orders. The first member gave oral decision but was in accident and couldn't write it was out of jurisdiction. 2nd member granted landlord $
ReplyDeleteThis is a great question and not one that has an obvious answer. Years ago in researching Writs and the legal power of them I remember learning that Writs (seizure and sale, land), once issued can survive independently of the Judgment that allowed them to be issued Hence, if one moved to set aside a Judgment one should also move to set aside the writ as they are separate legal documents even though one derives from the other.
DeleteBased on this experience, and without any research on the point (so this is my gut reaction to your question), I think that you do have to attend the garnishment hearing as the Stay of the Landlord and Tenant Board Order fails to stay the legal instruments that flowed from the issued Board Order. As there is a garnishment hearing it necessarily follows that there is a Small Claims Court Order. That Order was issued at the request of the Landlord and on the strength of the LTB Order. That Small Claims Court Judgment (flowing from the LTB Order) is what engages the rules of the Small Claims Court and the enforcement provisions in the Small Claims Court Rules.
To stop the garnishment hearing--because notwithstanding what I think above it is logical to stop the garnishment process while the debt is being challenged--you should bring a motion in the Small Claims Court to set aside the Small Claims Court Judgment and the Garnishment (which I presume is a debtor's examination. You should bring that motion before the Debtors Examination or if there is no time, draft the motion and make it returnable at the debtor's examination--i.e. argue it before the Judge presiding over the proceeding. If I have it wrong and this is actually a garnishment hearing and money has already been taken from you--and you're challenging the garnishment and want the money returned--then you make the same motion based on the same logic,
Hope this helps
Michael K. E. Thiele
My husband has a wage garnishment that started this January for a tribunal judgement that was made in March of 2009. We knew nothing of the tribunal hearing as we had already moved out, so we knew nothing of any judgement until money started coming off his paycheck! Is it common practice for a garnishment order to be given 4.5 years after a tribunal order?? And why are we responsible for 4.5 years worth of interest on supposed rent owing because the property manager took their sweet time filing an enforcement order?? Is there not a statute of limitations on enforcement?? The amount of money that is being taken is a substantial financial burden and I don't know what if anything we can do now. Thank you.
ReplyDeleteHi there:
ReplyDeleteThe biggest problem that you describe is not having knowledge of the proceeding that led to the Judgment against you. If you were not in possession at the time that the Board application was commenced then the Board has no jurisdiction in the matter and the Order should be set aside. If you were in possession when the application was issued, but moved out before it was served, then you did not have notice of the hearing and you could move to set aside the order and enter a defence to the landlord's claims. The way to do so at this stage is to file a request to review asserting that you did not have a reasonable opportunity to participate in the hearing, that you have a defence, or that the Board had no jurisdiction to make the Order as you were out of possession at the time that the application was commenced. You can get the details of the application against you by attending at the Landlord and Tenant Board, showing them the Board file number--it should be in the garnishment paperwork that you recieved--or it will be searchable by address at the Board. You can ask for a copy of the application, Order etc to see what the case was about.
Your request to review is obviously very late (more than 30 days past the date of the decision). You will need to file a request to extend time as well. Explain in there that you had no notice or knowledge of the application, the order, or anything until you recieved the garnishment notice (I presume this is true?). If you advise that you were out of possession by the time the application was issued or served at your home then that should be grounds enough to establish that you did not have a reasonable opportunity to participate in the hearing.
If the Board grants a Review Hearing you will need to prove that you were unable to participate and if you are successful the case will proceed on the merits. If you were out of possession on the issue date of the application then the application should be dismissed and the landlord would have to sue you in small claims court---which by now may be statute barred as it is more than two years.
All of that being said, the garnishment process is likely through the small claims court. So you will need to schedule a motion in the small claims court--a garnishment hearing, to dispute the garnishment and stop it pending the resolution of the Request to Review at the Landlord and Tenant Board. You must do both as neither place has the ability to deal with all of the issues.
You other questions about the amount of interest, time to enforce etc are good questions. The assumption is that you have knowledge of the Judgment and could have paid it. Your failure to pay imposes the interest. Judgments do expire but it is many years---my recollection is 20 years---but I would have to look it up. However, the timeline you describe is not that unusual.
Lastly, the burden of garnishment can be profound. If you are not able to follow up with the Landlord and Tenant Board, or simply want to get a payment plan put in place that is less onerous than a garnishment you can find some authority in the small claims court rules that allow the Court to set a different payment plan.
There is an awful lot of information here. If you are able, seek the assistance of a community legal clinic or a lawfirm that has articling students who could help you with the legal technicalities. Also, if you attend at the Landlord and Tenant Board there may be a duty counsel who could assist you in filling out the required forms.
best of luck
Michael K. E. Thiele
In your opinion, will a claim for damages against a tenant be heard in Small Claims court even if the LTB seems to have jurisdiction over the matter?
ReplyDeleteI am told that the LTB has jurisdiction when the damages/relief sought are within the LTB's monetary jurisdiction. In addition, the tenant had not vacated nor was evicted at the time the small claim was served.
It would seem to me that the LTB has jurisdiction in every regard: time, money, etc...
Am I wrong?
Thanks in advance and keep up the good work.
Thank you for the question. I appreciate your request for my "opinion" and I'll highlight that it is only an opinion as opposed to a definitive answer---as I do not think there is a definitive/correct answer to the question as imposed by the authority of a Court decision. Let's add another twist to your example and say that the while the tenant was in possession when the small claims court action was commenced, the tenant is no longer in possession of the property when the small claims court action proceeds to trial--the effect of which is that the Board would not have jurisdiction to adjudicate the matter if the small claims court action were dismissed now because a landlord may not initiate a claim against a tenant at the Landlord and Tenant Board when the tenant is not in possession at the time the claim is initiated. And as an aside, there is no procedure for transferring an action from the Small Claims Court (or any court) to the Landlord and Tenant Board.
DeleteIn my opinion, the Small Claims Court has a distinct advantage over the Landlord and Tenant Board in damage claims. That advantage is the ability to win "costs" in addition to the damage claim. The anticipated costs that could be won are sometimes enough to justify hiring a lawyer or paralegal to represent the landlord--if legal fees can be quoted on a block fee basis. Costs in the small claims court may rise to 15% of the amount claimed plus disbursements. The case is always better and chances improved if you can have a qualified lawyer or paralegal to argue the case for you. Getting reimbursement for legal fees (for meritorious and successful cases) encourages parties to retain qualified counsel instead of doing it themselves. If you look at the LTB costs authority, the rule, and the costs guideline you can see the distinct disadvantage in proceeding to the Board with a lawyer as those costs will not be reimbursed in the way that the Small Claims Court will normally order them reimbursed.
I haven't looked at the "exclusive" jurisdiction issue in several years. However, I recall that there is case law, from the small claims court, taking a view of concurrent jurisdiction--meaning the litigants may choose to proceed in either forum. Then again fairly recently I remember skimming a case striking the claim because the Judge felt it should have been adjudicated the Board. So, from that perspective there is conflicting authority.
My "opinion" of what it should be is that the jurisdiction is concurrent. My argument in support is that where one forum provides a remedy and distinct advantage that the other can't or won't (i.e. costs) then the applicant/plaintiff should have the choice of where to proceed. My recollection is that the case law that discusses the selection of forum does consider as a factor the remedies that the competing forums can provide as this is a part of the "justice" of it all.
Practically speaking, this does not come up very often for my clients. If the tenant has damaged the unit enough to warrant litigation, my client's are necessarily proceeding at the Board because they want eviction for the damage as well as a monetary judgment. The Small Claims Court has no jurisdiction to order termination and eviction. Where my clients become aware of damage that they do not need to evict for (because the tenant has already moved or has been evicted) then there is no option but to sue in Court because the Board no longer has jurisdiction. If I had a client who wanted to sue for monetary compensation for damage but for some reason did not need eviction, I'd inquire whether we could wait for the tenant to move out before suing in small claims court. In effect, I'd try to avoid the legal issue you identify--because you are correct to identify it as cause for concern if the claim is initiated in the small claims court while the tenant is in possession. If my client's instructions were such that the issue could not be avoided then some legal research would be warranted--hopefully finding Divisional Court authority on point, and absent that prepare the arguments and try to make some law.
DeleteMichael K. E. Thiele
Thank you for the insight Michael.
DeleteIt probably seemed as though I was writing hypothetically, or from the perspective of the landlord, but to be frank, I am the tenant in exactly the scenario you described.
I had been sued in Small Claims Court for damages shortly before vacating (of my own volition), but after the landlord has served my partner and I with a notice to evict for their own use.
To be clear, we are not responsible for the damages, rather the claim and eviction notice were essentially used to attempt to extort money from us, or rather, avoid paying us for labor he hired us to perform on his property after an 8 year long tenancy.
Obviously the eviction notice was given in bad faith as the landlord wanted us out but had no other legitimate cause to evict (rent always paid, house spotless, etc.) That is a whole other story.
It would seem as though the judge at trial in Small Claims Court might take notice of this somewhat uncommon situation: would he/she not take the view that if the landlord really felt he had a legitimate claim to damages and wanted to evict us, that the LTB is the only proper venue??
I understand you are writing about LTB law, not small claims, but I just find your blog interesting and thought I'd pick your brain.
I guess we'll see what happens at trial next week!
Thanks again,
Thomas
Good evening, I was awarded costs for damages that my tenant did when he had a grow op in my house. He was arrested and convicted, which made it easy for us to evict him. However, our house is a mess and at this point almost impossible to sell since it is listed as a grow op. 2 questions, can I sue for the loss in value of my house as a result of his actions even though LTB already awared damage costs for physical damages?
ReplyDeleteShe is on disability and he has an Army pension, will the courts allow me to use garnishment of their pensions or bank account? I'm worried that I will never see a dime and now will lose a boat load of money if I try to sell the house. It's bad enough that my insurance company dropped me because of his "business" and I'm paying for subprime insurance.
Thanks for your advice
Mishelle: It is possible that you unintentionally waived your right to claim for damages in the Superior Court if you sought damages at the Landlord and Tenant Board for the same thing. The analysis of this question is fairly nuanced so you need to see counsel on the issue--particularly because the amounts at stake will be significant. The section of the RTA that is of concern is section 207---it contains a clause that effectively wipes out any claim if the Board issues an order in relation to the tenancy. The wording of the section is problematic in that it can be read quite broadly to limit any cause of action if any sum of money has been claimed against a tenant at the Board.
DeleteEnforcement of Judgments, excluding assets from enforcement, finding assets through debtors examination, determining whether a pension can be executed against or if the pension money, after deposit to a bank account can be executed against (i.e. does the character of the money change if it is just sitting in an account) are difficult questions that have different answers depending on the circumstances---so sometimes the answer to your question is yes, sometimes no (I appreciate that isn't too helpful!).
From your comment about insurance I trust you've looked into coverage for the damage caused by the tenants? Several years ago insurers in Ontario started to exclude damage caused by grow ops--but it is worth checking. Note that typically you have one year from date of loss in Ontario to sue your own insurance company for losses sustained.
Best of luck.
Michael K. E. Thiele
I am holding a mediated agreement from the Ontario LTB, which the tenant dishonoured when he left the premises without paying the rent owing. To enforce the agreement, I plan to garnish his trust through small claims court. In order to convince the judge that the tenant does not want to be found (not employed, no driver's licence, no credit card, etc.), do I have to conduct a skip search to demonstrate that I conducted an earnest effort to find and serve him? He, not the trust, is named in the LTB agreement? I would appreciate any advice you could offer. Thank you.
ReplyDeleteHi:
DeleteThe mediated agreement is not a judgment or order. Hence the first step is to try to convert the mediated agreement into a judgment or order. A breach of a mediated agreement can lead to an Order if you file an L4 application with the Landlord and Tenant Board setting out the breach. Query, whether the Board has jurisdiction to issue an L4 order based on a breach if the tenant is no longer in possession of the rental unit at the time of the L4 application being filed. Generally speaking, a tenant must be in possession when the landlord files with the Board. The answer to this question is not immediately apparent from the L4 form or section 78 of the RTA. The form itself does not ask if the tenant is still in possession and certainly requiring possession for an L4 is a huge disincentive to entering into a mediated agreement respecting rent arrears. Anyway, if there is a problem with the L4 (because of a lack of possession) then you will need to sue the tenant in small claims court based on the mediated agreement.
With respect to garnishments or other enforcement processes you are not required to "personally serve" the tenant to effect enforcement. The L4 order will be mailed to the tenant's unit so the tenant should get it if mail is forwarded and alternatively the tenant should have made arrangements to forward mail. If suing is necessary then you will need to personally serve the claim. Skip tracing my be necessary in order to support a motion for substituted service on family members--or such other means as are reasonable.
Garnishments are of third parties--entities that owe a debtor money. Hence, you are not required to have a judgment against the "trust" in order to garnish it. Now, you may discover that the trust does not have to send any money to the sheriff as a result of your garnishment. Trusts can be structured to avoid this by the terms of the trust. Further, if your tenant (former tenant) is a person under disability and has disability income you may find that some or all of this money is exempt from seizure (depending on the source of income).
Good luck
Michael K. E. Thiele
Thank you for your earlier response. The challenge to collect the debt has certainly been daunting and so far I have not managed to achieve results. My tenant has vacated the property (it was sold) and he is now in hiding, so filing and L4 is not an option. My next step is to garnish his bank account (I have all the details - account #, branch, etc.). Since I am not required to personally serve the Notice of Garnishment on my former tenant, can I list to the only address that I available to me (that of my former property) on Forms 20E, 20F, 20P and 8A?
DeleteHi: I do not think that you will be able to garnish the account as you still do not have a Judgment/Order for the arrears. You need to convert the mediated agreement to an Order--using an L4 Application--acknowledging that you may very well have a problem with jurisdiction of the Board to entertain the application because the tenant is no longer in possession. If you can't get the Board to assume jurisdiction through the L4 you will need to get a Judgment from the Small Claims Court--which means suing the former tenant and serving him personally. If you are unable to serve personally you can bring a motion to the Court for substituted service---but you need to demonstrate the effort to locate and serve and the Judge needs to be satisfied that it would be a proper Order.
DeleteA Garnishment or any of the other enforcement procedures in Court are all based on there being a valid Order or Judgment. Without a Judgment/Order you have nothing that is in my opinion directly enforceable against the assets of your former tenant.
Michael K. E. Thiele
Hi: Sorry, my mistake. The mediated agreement resulted in an Order from the Landlord Tenant Board. The tenant is aware of the Order. Thus, can I send the Notice of Garnishment to the "old" address since I have no other address for this tenant? Thank you.
DeleteHi: The answer to the question lies in the Rules of the Small Claims Court as I presume you are enforcing the Order through the Small Claims Court processes--i.e. this is where you are issuing the garnishment that you intend to serve. To see what the requirements are take a look at Rule 20 and with respect to service of the documents take a look at Rule 8. Depending on how you read it the answer to your question about mailing the garnishment documents to the last known address may be in Rule 8.07. It is worth mentioning the issue to the Court clerk, advising of your service concern and pointing out Rule 8.07. If the Court clerk is not supportive of your position you could ask what the alternative is--while suggesting bringing a motion for substituted service or even dispensing with service.
DeleteThat's the most I can offer you as guidance. Consider retaining someone who regulalry practices in this Court or perhaps you can get more thorough answers from the Clerk of the Court.
Best of luck
Michael K. E. Thiele
Thank you.
DeleteMy tenant has been evicted and the only way I will ever get the $7000.00 in rent arrears and court costs from him is to not let him take his furniture in the apartment and the contents of the garage and try and sell it all to recoup some of my money. Am I allowed to do this. He was to have his stuff out by noon today when the 72 hours was up but I did not go unlock it for him. He has no savings or job so I would not be able to be paid or garnish his wages. What would I have to do to make this happen?
ReplyDeleteHi: Not only is what you propose to do illegal what you have already done is also illegal (no making his property available to him). The consequences can be rather severe with not only the tenant suing you but also the Ministry of Housing filing charges against you in the Provincial Offences Court. What you seek to do can not be legally done.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am desperate for your advise. My tenant hasn't paid rent for 6 months and owes me approx. $5k. He is on welfare and cheating ppl like this, while collecting money for rent. I have filed L1 and got an order stating he must move out and pay the rent he owes. I had a hard time with him and finally got the keys today. He hasn't given the bldg's key, which costs $100. He has given the apartment keys only. Now, how do I collect the money he owes? I have taken line of credit to manage his expenses. He is on welfare and doesn't have any assets. I know his new address...... What are my options? How to get my money from him? The order clearly states that he must pay, even if the tenancy is terminated. Kindly advise me on the above. Thanks.
Collection agency is better?
Hi:
DeleteI am sorry to say that you are likely out of luck. A collection agency may help you in the sense that they may make a report on the person's credit file and may be in a position to monitor changes in the persons financial fortunes. Generally speaking though, it sounds like you have a former tenant who is judgment proof--meaning you will not be able to recover.
Michael K. E. Thiele
Thanks Michael. It was helpful.
ReplyDeleteHi Michael,
ReplyDeleteI have an order from LTB, which has the amount my tenant owes. I have called collection agencies and they have told me that they don't deal with LTB collection issues. Is there any agencies you can suggest for rent collection with LTB order? Your speedy response will be appreciated. Thanks.
I'm sorry, I won't recommend any specific company.
DeleteOk. Thanks. Is there any companies you are aware of, which can collect rent? Pls be informed that I am not asking for one specific company...........companies' names. Any idea will be helpful. I have done a search and couldn't locate anything........specifically for rent collection.
ReplyDeleteHi Again: As the article indicates, once you have an LTB order for rent arrears there is a paper process that you can go through at the Small Claims Court to convert the LTB order to an order of the Small Claims Court. Once you have done this you have a judgment. There is nothing "rent collection" about this and perhaps that is why you are having trouble in that you are characterizing this debt as "rent". Your judgment may be for rent arrears but in the big picture it is just a "judgment" for money. There are numerous collection agencies that will take your judgment and seek to enforce it for you (for a fee of course). The fact that the Judgment is for rent arrears is not something that the collection agency will care about because it is irrelevant.
DeleteHope that clarifies things a bit and that I am understanding the nature of your question.
Michael K. E. Thiele
Thanks Michael. I have found out that the tenant has no assets or anything. That's why, I didn't go through the enforcement process at small claims court. Also, I am being told that he is on Ontario Disability SP. In this case, anything can be done? I have called the ODSP few times and got his worker's voice mail only. I am clueless at this point.........moreover, the tenant hasn't given the bldg key (cost $100) and he might have sold it for cash. He has given the apt key and moved out to another floor at the same bldg. During the 6 month period, he hasn't paid anything except one short payment. I have borrowed money until now to get things going. What else, I can do now.......any suggestions will be appreciated.
DeleteHi: It is probable that you will never recover anything from this tenant. ODSP provides a payment that can not be garnished/seized in satisfaction of a debt. For this reason, a person on ODSP is generally considered judgment proof. However, to be clear, being judgment proof only refers to the assets and income sources being exempt from seizure. The "debtor" is not judgment proof with respect to non-exempt assets--which leads to the question of whether your former tenant is living only on the ODSP benefit and "permitted" earned income or whether he has other non-exempt income and assets that could be seized. Most often, a person on ODSP is legitimately on ODSP and there really are no other assets to seize. However, your former tenant sounds like a bit of a scoundrel--especially if he is selling keys and skipping out on almost 6 months of rent--hence you have a long shot at perhaps finding/discovering employment income or other assets of his. Absent that, I think you are likely out of luck. Given that he is on ODSP--the chance of finding a collection agency that will put any effort into realizing on the Order is highly unlikely as the effort is unlikely to be rewarded.
DeleteMichael K. E. Thiele
Thanks a lot Michael. I appreciated your help. I believe, he doesn't have any assets or any other income.....however, I am being told that he earns money by doing handyman jobs for cash. I don't think, he reports that income. Since, he doesn't report the additional income, IS IT IMPOSSIBLE TO COLLECT IT? Kindly, advise. Thanks again.
ReplyDeleteHi Michael, I have a tenant who has not paid rent for a few months and moved out. The one thing I do not understand in your article and in the process is: why bother going through the Ontario Landlord Tenant Board and not go directly to Small Claims Court? Is the enforceable ruling in Small Claims faster when you win at the Ontario Landlord Tenant Board?
ReplyDeleteHi: Because your tenant has moved out you would not, in fact, be allowed to file an application at the Landlord and Tenant Board for the rent arrears. If the tenant is no longer in possession and you want to get an enforceable order for rent arrears then your only option is the Ontario Superior Court of Justice--presumably the small claims court for claims under $25K. If your tenant owed you money, but had not moved out, you would proceed at the Landlord and Tenant Board because only the Landlord and Tenant Board has the jurisdiction to give you an eviction Order (the Small Claims Court does not). There is another more technical reason why you would proceed at the Landlord and Tenant Board---as opposed to the Small Claims Court--if the tenant is still in possession and that is that the Landlord and Tenant Board has exclusive jurisdiction over residential tenancies in Ontario (dealing with cases worth less than $25K). There is a fair amount of caselaw on point but I think now, if the Small Claims Court analyzes the question of jurisdiction, the Small Claims Court will dismiss an action in that Court if the Landlord and Tenant Board otherwise has jurisdiction (though you will find many instances where the Small Claims Court did proceed when the LTB had jurisdiction). Note that once a tenant is OUT of possession the LTB has no jurisdiction and hence the Small Claims Court (for claims under $25K) is the only venue to assert a claim against a tenant. Tenants, on the other hand, may still file applications against Landlords even after they are out of possession.
DeleteHope that clarifies.
Michael K. E. Thiele
Update on this in 2022:
DeleteThe Landlord and Tenant Board now provides Form L10 to collect rent arrears from a former Tenant.
Hi Michael,
ReplyDeleteI won an order against my landlord for 1 months rent in September 2014 after agreeing to vacate the unit in October 2014 at a separate LTB hearing. The order also specified that we had the option to as the LTB enforcement arm to look at fining the landlord for illegal entry twice which she admitted to in writing once. Because we were moving we could not with hold rent so we had to garnish the landlord. Fearing that we would never get our money if a severe fine was levied we did not pursue this. The last of our garnishment is now with the court. In the meantime the landlord has chosen to sue us in Small claims for spite. Can i now ask for enforcement even though we are no longer a tenant?
Thanks for the help
Hi: Unfortunately it is difficult to understand your question. I presume that you are referring to the Investigations Branch of the Ministry of Housing---though it would be unusual for that to be referenced in an Order. So, I can't really speak to that issue. However, if the Investigations Branch is prepared to investigate and possibly lay a charge then that is fine and you can ask them to investigate to see if they will.
DeleteIn the mean time, you should be concerning yourself with defending the Landlord's Small Claims Court claim. It may be worthwhile to bring both your tenant application file and the Small Claims COurt file to a lawyer or paralegal and let them take a look. You may have some technical legal defences to the Landlords claim that you may miss if you just defend this matter yourself.
Good luck
Michael K E. Thiele
Thank you Michael for the response. I was trying to recall the correct language from memory but you are correct. It was the Investigation & Enforcement Unit of the Ministry of Municipal Affairs and Housing. I will contact them directly.
DeleteAs to the Small Claims Court claim, legal assistance has looked at her claim and it is remarkably similar to her LTB application. They have suggested I argue res judicata since the matter was included in our first LTB judgement. I appreciated your advice regarding the use of section 207 of the RTA above. Are these the same? Is one more appropriate?
Again, your opinions on these matters are greatly appreciated and continue the good work.
Hi again: I'm glad you've met with legal assistance as it takes looking at the actual documents to identify the "technical" defences. I was indeed thinking about s. 207(3) and res judicata as these appeared as possible defences from your comment. You sound like you are well on your way to defending this.
DeleteGood luck
Michael K. E. Thiele
Hi Michael,
ReplyDeletethank you for your thorough article on the procedure of small claims court.
I have a question for you and was hoping that you could provide some advise/insight to.
Brief summary of my case:
Currently, I have a tenant who did not pay rent for a few months. We have been through landlord and tenant board for court hearing, where we agreed and signed a mediated settlement. The tenant then breached the conditions in the mediated settlement. I then filed the L4 with the landlord tenant board which as a result served the tenant an eviction order. The tenant didn't pay and didn't move out on/before the deadline of the eviction order. I then went to superior court of enforcement (sheriff's office) to enforce the order with the sheriff.
My questions:
I want to file a garnishment against the tenant to collect the debt amount that is listed in the mediated settlement; however, I'm not sure whether my mediated settlement 'order' is a so-called judgement. Would I have to convert this mediated settlement into a judgement with the Small Claims Court first?
Could you kindly provide a brief overview of actions that I'd have to take in order to collect the money owed?
As a side note, I have a copy of his driver's license that includes his name, birth date, address, and I also have his SIN #, work number, work address, work company name, his mother's home address, and I know what model and type of car he drives including his license plate.
What other information would you suggest that I should obtain to make the collection more feasible?
Thank you and regards,
Danny
Hi Michael,
ReplyDeleteI won an LTB order last month and now desperately need some professional help. The tenant HAD MOVED OUT by the time I got the verdict but, of course, didn't disclose the new address to us and had 5 mths in arrears for approx $10,000. I was wondering which option would give me a higher likelihood of collecting the debt, whether the Small claims court or a collection agency.
HIS BACKGROUND:
1. His previous company was bankrupt and he's working at another plumbing/drain service firm possibly making stable incomes.
1. I know all his contact info (name&phone&address&email) at the new company as well as the license plates on his company's trucks.
2. he was getting divorced during the tenancy and is perhaps paying child support
3. he was on probation with city's family counselling program due to domestic violence.
4. I don't know his driver's license # nor SIN#.
5. I know his previous bank account # from the post-dated cheques he provided.
I really need your guidance in this one. Thank you for your time in advance.
Hi:
DeleteYou ask whether a collection agency or the small claims court would be better. The fact is that they are not comparable. A collection agency will use the processes of the small claims court (or Superior Court if the judgment is over $25K). You will need to get your Landlord and Tenant Board order recognized as a Court Judgment (Small Claims Court is reasonable). That is a "paper shuffle" for which you pay a small fee. The Court itself does nothing to enforce your judgment. You are entitled to use the enforcement tools of the Court to try to get payment. How good you are at using the tools will determine whether you get paid or not. Collection agencies tend to specialize in using the enforcement tools combined with other knowledge and skills that they have to realize on Judgments. That is a reason to hire a collection agency and pay the "fee" for their service (which sometimes is a percentage of the judgment).
The information you have is useful. Some of it suggests that enforcement may be very difficult and significantly delayed. Child support, for instance, will take priority to any execution that you try (i.e. garnishment). If you can find assets to seize, that are clearly worth the effort, and you have the money to pay the sheriff the security required to seize the assets to sell them then you may have some luck. Enforcement of judgments is difficult so I wish you luck in doing so. Don't be surprised if you find yourself spending a significant amount of time and money chasing money that just doesn't seem to come back to you. It can be a very frustrating adventure that ultimately ends in the debtor declaring bankruptcy and wiping out your judgment.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I have a couple orders for $3 and $2k from the landlord and tenant board under the residential tenancies act against previous tenants. I have tried to locate these people and or where they work but have been unsuccessful. Time has passed and nothing has been done. The judgements are about 5 years and 3 years old. My questions are:
ReplyDelete1. Is there a time limit on the orders or can they still be acted on?
2. These are orders from the from the landlord and tenant board under the residential tenancies act, if they are not too old to be acted on do I need to convert these to judgements in small claims court before a collection agency. If yes, how? I brought the order in to small claims court and they said I had to know the address, etc of the tenant.
Thanks.
Noel: The technical explanation of the mechanics of the "paper shuffle" I describe in the article above is as follows. Section 184(1) of the RTA provides that the Statutory Powers Procedure Act (SPPA) applies with respect to all proceedings before the Board. On the strength of that section, you then look at section 19 of the SPPA which deals with Enforcement of Orders. It states: " A certified copy of a tribunal's decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or a party and on filing shall be deemed to be an order of the that court and is enforceable as such". [you can find the rest of the section at this link which you will need to cut and paste: http://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html?resultIndex=1#sec19subsec1 ]
DeleteWith respect to time limits on Orders I am not entirely sure. I have a recollection that Judgments are valid for a period of 20 years--but that is a recollection from law school which goes back just as far in time. I don't think you will have any issue with the age of these orders. Another timeline, that sometimes arises is in the enforcement tools--i.e. writ of seizure and sale, in that the expiry of a writ may require leave of the court for the writ to be re-issued if it is allowed to expire.
So, the process of converting the Orders to a Small Claims Court Judgment is a filing process. I don't see any requirement to know the debtor's address for this process. Enforcement of the Orders is another issue altogether. To enforce it would be very handy to know where the debtors are located as it is up to you to find the debtor's assets. If you have identifying information name, birth date, SIN #, Drivers Licence it may be easy for you or the collection agency to find your debtors. The less information you have the more unlikely it is that you will be successful in enforcing the Orders.
Hope that helps
Michael K. E. Thiele
If I am evicted from a property and left when I was asked to. I had asked to be let out of the lease due to financial hardship and was honest about my inablility to pay the rent. The landlord waited 4 months to evict which I begged them not to as it was just an accumulation of rent that I couldn't afford. It has almost been 2 years and I have just been served with papers from small claims asking for over $23,000 in arrears for the 4 months as well as the remainder of the lease claiming they couldn't rent it out. Also a 1000 in damages - which was never communicated to me. I tried many times to discuss with them about how to pay the arrears of the 4 months back but they never communicated with me at all before now. I am at a loss as to handle this and wonder if I am liable to the remainder of the lease.
ReplyDeleteHi: There isn't enough information in your question to allow for a specific response to your situation. However, generally speaking, if a tenant vacates a rental unit and the tenancy has not been properly terminated or there is inadequate or no notice then you would look to section 88 of the Residential Tenancies Act which sets out a method of calculation of rent arrears. In addition, once a tenant is out of possession of a rental unit the landlord has a duty to mitigate (minimize its losses). This duty is set out in section 88(4) as well as section 16 of the RTA. Minimizing losses means taking steps to rent out the property, make it attractive to renters etc.. My experience has been that the Small Claims Court will generally allow two month (60 days) as a reasonable time to find a new tenant and re-rent. After 60 days the landlord's failure to re-rent calls into question the sincerity of the attempt to mitigate and minimize losses. Of course, local circumstances will affect the speed of re-renting as will the condition of the premises and the amount of the rent being charged.
DeleteMake sure to defend the Claim in the small claims court. If you fail to do so the landlord may try to sign a default judgment against you. While you don't give many facts, on the facts you do provide it sounds like the landlord's claim is exaggerated with the numbers being selected to simply reach the maximum jurisdiction of the small claims court ($25K).
Good luck
Michael Thiele
www.ottawalawyers.com
I am defending this as this is over the top. I wanted to work with them so that this didn't get this far. Thank you so much.
DeleteHello Michael,
ReplyDeleteI received the LTB order that my landlord needs to pay me the sum I requested. There is a twist now; he decided to counter-sue in small claims court for alleged damages. We have a hearing on Wednesday and so I thought it would be ideal to submit the LTB hearing decision, but I also want to make sure that I am paid the sum owed to me. Can I just use this small claims case where the landlord sues me and just use my LTB order to 'counter-sue' to make sure that I get the payment? Or should I just file a completely separate case to fulfill the payment of my LTB order? (Side note: I strongly believe that he will not be successful in this small claims case.)
Thank you.
Hi: Just wondering if you are still in possession of the rental unit or if you moved out? To create an enforceable LTB order is as simple as taking an original of the Board order, to the Small Claims Court counter and paying a small fee to have it recognized as a Judgment of the Small Claims Court. I haven't had to do this in a while but the last time I did it here in Ottawa it took perhaps 10 minutes.
DeleteSection 19 of the Statutory Powers Procedures Act provides:
19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
Notice of filing
(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing. 1994, c. 27, s. 56 (35).
Order for payment of money
(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
good luck
Michael K. E. Thiele
www.ottawalawyers.com
I've moved out of the unit. Thank you so much for the information. I've heard that you can garnish a bank account. So, with the LTB order recognized as a Judgement of the SCC, would I be able to garnish the bank account or just leave it up to the sheriff to enforce it?
DeleteHi: Once the order is recognized as a Judgment of the Small Claims Court you would use the enforcement tools of the Small Claims Court. Those tools include garnishment, debtor's examination, writ of seizure and sale. Be aware that unless you take active steps to enforcement the Judgment through the tools available that nothing will otherwise happen. The Sheriff will do nothing to enforce the Judgment unless you take enforcement steps. And yes, you may issue a garnishment against the bank where your landlord banks.
DeleteMichael K. E. Thiele
Hello, great information.
ReplyDeleteIf I convert my award from the LTBoard to an Order of the Small Claims Court. Can I still ask for a review of the Order,
or is this why you have to notify the LTBoard that you had it recognized as a Judgment of the Small Claims Court to
prevent an additional LTBoard review?
Notice of filing
(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing. 1994, c. 27, s. 56 (35).
Hi: I'm not aware of any prohibition respecting seeking a Request to Review arising from filing the Order with the Small Claims Court. As long as you follow the Request to Review rules (within 30 days of the date of the decision, one review per party per decision, etc.) then I don't see a problem. You raise an interesting point about giving the Board notice of filing the order. I don't know anyone who has ever actually given the Board notice of filing the decision with the Small Claims Court and I don't know if it is done as a matter of course by anyone. It won't be anytime soon, but I will research that provision some time to see what the legislative intent was in requiring the notice. I think it is a fair assumption that if the Court issues an Order based on an LTB order (and the LTB has notice of it) that the LTB would notify the Court if the underlying Board order is changed or stayed. I don't see why filing the order should interfere with the right to seek a review.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Thank You Micheal, I really appreciate your help, now I am motivated to go ahead with both the Review and the filing the Order with the Small Claims Court.
ReplyDeleteThanks again
I received the eviction notice from the LTB and went to the sheriff's office the day I was allowed to file. My tenants went the same day to Service Ontario and we're successful in obtaining a review hearing. In the interm review order, my tenants were ordered to pay me the September rent on or before September 17 and to pay October's rent on or before October 1 dues to the amount of arrears outstanding.
ReplyDeleteI am sure my tenants will not pay me tomorrow. Would the LTB be able to lift the stay of the eviction order if I advise them on September 18 or will they not do anything unail the hearing on October 6?
Thanks
Hi: The trick to this is getting "heard". Between now and the scheduled hearing on October 6 there is no venue for you to inform the Board of the breach of the interim order. If you were somehow able to get an earlier hearing date then yes of course the Board could lift the stay of the eviction order. The question is how to get that earlier hearing date. You might want to wait until September 18 then write to the Board asking for an expedited hearing date to deal just with the breach of the interim order. I don't really expect that you would be successful, but if the Board found the time to schedule an expedited hearing on the failure to comply with the interim order then you could get your remedy sooner. In all likelihood though, the earliest that you are going to get heard is October 6. The failure to comply with the interim order should be fatal to the review application and the tenants should not even be heard on the merits of the review given their breach of the interim order.
DeleteThat being said, I would not be surprised if your tenants did not show up for the October review hearing. Rent is a fairly straightforward matter. If they don't make the interim payments it becomes fairly clear that this was entirely about buying more time to move.
Good Luck
Michael K. E. Thiele
www.ottawalawyers.com
This comment has been removed by the author.
DeleteI won my tenants appeal. Does it cost me every time I do a garnishment? Do I need my tenant's bank account number to garnish? How does a bank garnishment work? If they receive a check will the bank cash it without checking to see if there is a garnishment? Will I get all of the money in their bank account or only a percentage?
ReplyDeleteHi: I presume you have an Order for money in your favour. Is it from the Landlord and Tenant Board or from the Superior Court of Justice? When you say appeal do you mean from the Superior Court of Justice Divisional Court? The processes are different depending on your Order. A judgment in the Divisional Court will be enforced through the Rules of Civil Procedure and an Order from the Landlord and Tenant Board is normally enforced through the Small Claims Court and uses the Small Claims Court Rules (which are very different from the Rules of Civil Procedure).
DeleteYes, every time you issue a new Garnishment it will cost you money. The cost is added to what your tenant owes you. A garnishment--typically--is good for 6 months. You issue the garnishment and serve it on the person/bank/company/employer that you think will owe the debtor money. If you are garnishing a bank they will have a note on the account. As soon as money is in the account they are supposed to seize it and send it to the Sheriff. If the garnishee does not seize the money they could become liable to you for it. Once the money is sent to the sheriff the debtor has the right to challenge the seizure of the money. This is known as a garnishment hearing. There are a number of limitations to the amount of money that can be seized and the sources which can be seized. Social benefits are mostly exempt from seizure, wages are partially (mostly exempt) and if there is a garnishment in place for child or spousal support you are unlikely to get anything.
Enforcing judgments is a tricky and complicated business. The forms to issue a garnishment are not entirely intuitive especially if you are doing them in the Superior Court (as opposed to the Small Claims Court). If you embark on this process be prepared to be patient.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
The appeal was through LTB. They owe me many months of rent. I will be looking into getting an order through Small Claims. I thought the garnishment was good for 2 years and if you haven't collected all the funds owed you can renew. I have waited so long to get these tenants out. In fact they are still not out. The Sheriff is coming this week to get them out. I do not want to stop what I am doing with regards to trying to collect some of my money. Hopefully I can continue this process on my own without hang to hire a lawyer. I will hire process servers when I need them served next time as I do not want anyone to dispute that they were never served.
DeleteI know where the husband works but I don't believe he is working full time which is why I wanted to know how a bank garnishment works. They switch banks as much as they switch apartments.
There are various online sources to provide you informative details on this topic,
ReplyDeletebut this is one is very helpful.
Judgment collection
Hi Michael,
ReplyDeleteI filed a T2 and a T6 against my landlord and through mediation we came to an agreement in my favour. For the past six months, compliance with parts of this agreement has been ignored although I’ve made a few attempts to have this remedied. I am aware that I can reopen these applications within one year however my question to you is if I do that, will reopening be based on the same requirements? The reason I ask is because the application for reopening does not ask for anything other than how the agreement was not met and nothing about what I want done about it. At this time I have decided that a larger compensation to me or a fine against my landlord will have them take matters more seriously but I’m not sure how to go about that. Is going through Divisional court instead of LTB a better option? I’ve received conflicting information and trust your opinion.
Thank you very much for your help.
Hi: I'm fairly certain from what you are describing that the Divisional Court has no role or bearing on your situation. The Divisional Court is only there for appeals when the decision maker (i.e. the Landlord and Tenant Board) has made an error in law in a decision. It sounds to me like you reached a consent mediated agreement. The Divisional Court would have no role in considering that agreement. Further, the Divisional Court has no jurisdiction to hear a case at first instance---they only hear appeals from Landlord and Tenant Board orders--so you can't proceed to that Court directly.
DeleteI think you are grappling with whether to re-open the application or whether to simply file a new application. Generally speaking the re-opening puts you back to the original application. If there is a whole lot that has happened since the application was mediated you might want to start with a fresh and new T2 & T6. It really depends on what the issues are and whether a re-opening will get the full scope of the issues determined. If you are in a City and near and LTB office try meeting with duty counsel or attend a community legal clinic to speak with a lawyer experienced in Landlord and Tenant law. The answer of how you should proceed will be clearer to the lawyer who is able to read your original application, the mediated agreement, and be told what exactly the landlord has not done or what the landlord has indeed done contrary to the mediated agreement. Without those details, I'm sorry, I simply can't give you any clearer direction.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI would like to get your opinion and advise on my situation.
My ex-tenant moved out on Sept.1. She left the apartment in a dissary state (garbage all over the place and stains all over the carpet). I have withhold her security deposit since and had been trying to negotiate with her parents (they are my co-tenants and the one who paid rent.) to return their deposit less the costs I paid to remove the stains on the carpet and re-instate the apartment to rentable state. However she filed a T1 to claim back her deposit (plus the interest of course) during this process. I know the TLB will grant her the amount (deposit plus) interest, which I have no problem with since it wasn't my intent not to return their deposit. But I want them to pay the cost of damage.
My question is can I file my claim through Small Claims Court before the TLB hearing (on Nov 13)? If I do so, does TLB still have the juridiction over her complain? What would TLB do to my claim in the Small Claim Court in this situation?
Thank you very much in advance for your input.
Hi: I'll tell you what I think will happen, but be aware that different adjudicators may proceed differently. The Landlord and Tenant Board (LTB) hearing on the T1 is something that would usually proceed without you being able to do anything about it. Because the tenant is out of possession you don't have a basis to assert a claim against the tenant at the LTB. The LTB only has jurisdiction to adjudicate your claim if the tenant is in possession at the time that the application is filed.
DeleteThe LTB continues to have jurisdiction to adjudicate a tenant application even after the tenant is out of possession.
As a landlord, your only recourse is to the Small Claims Court for any claims you have against the tenant for amounts under $25,000.00. The question is, when do you prepare and file your small claims court claim? You could: 1) file it before the LTB hearing, 2) file it after the LTB hearing.
If you file the claim before the LTB hearing you could argue to the adjudicator that he should dismiss the application or decline to hear the application and dismiss it without prejudice on the basis that there is another judicial proceeding dealing with the tenancy and that this other claim will certainly impact the payment requested by the tenant in the LTB application. You should provide the adjudicator with a copy of the Small Claims Court claim. It might be helpful if in that claim you acknowledge the existence of a deposit, that this sum is due to the tenant, but that you are seeking an award for damages and a set off to be applied between the sums owed to each party. That would put the very heart of the tenant's application in play before the Small Claims Court. The reason for the LTB to defer the tenant's application or to exercise its discretion to refuse to hear it (perhaps write an interim order directing the tenant to pursue the claim in small claims court) is that the LTB can not take jurisdiction over the entire subject matter (though it might be interesting to argue a "set-off" in the tenant's LTB proceeding and see if the LTB would entertain the argument--based on set-off and not an actual application by the landlord).
The adjudicator might agree that everything should be heard by the Small Claims Court. I think that unlikely, but it is worth the argument. Then try the "set off" argument. I think it would make sense for the adjudicator to consider your claim in deciding the tenant's application. You could argue that the adjudicator has power to award a set-off by invoking the jurisdiction in section 204 which allows the Board to include "whatever conditions it considers fair in the circumstances". A similar type of argument was successfully made in the case of Debonis v. Willett [2004] O.R.H.T.D. No. 3 (O.R.H.T.)---though the decision is sometimes criticized as not being good law.
DeleteIf the adjudicator simply holds that there is no jurisdiction to entertain your set off and no reason to not issue a straightforward decision on the tenant application then you will simply allow the LTB matter to conclude and you continue with you small claims court action. In the larger cities a small claims court action will take a year or two to resolve.
The tenant will of course want to enforce the LTB decision. You should make it clear to the tenant that you will only pay what is owing after deducting your losses. If the tenant does not agree you can invite the tenant to file the Order with the Small Claims Court. The tenant can proceed with enforcement steps. You can bring a motion to the Court, allowing you to pay into Court the amount of the tenant's claim but that it not be paid out until your claim is heard and decided. You should win that motion fairly easily. The reason to go through this effort is because you presumably will not get paid by the tenant if you don't keep the money now (i.e. tenant is impecunious, judgment proof, parents pay rent).
The second option is to no issue the claim until after the LTB hearing. This is likely what I would recommend. I'd show up at the Board with a prepared copy of the Small Claims Court claim and the proof of your damages and proof of your claim. I'd see about mediating a deal that reflects your claim and the tenant's entitlement. I'd be very forthright with the mediator about what you will do---i.e. issue a small claims court claim, and bring a motion to pay money into small claims court pending determination of your claim. I'd do my best to demonstrate that it is in everyone's interests to deal with all aspects of the claim and make a deal now. If you don't file the Small Claims Court claim before the LTB hearing you don't have those filing costs to worry about.
If mediation does not work, I'd mention the same position to the adjudicator, try the set off argument in this scenario as well. Not having a pending Small Claims Court action makes it harder to argue that the adjudicator should decline to hear the matter. If your claim against the tenant is crystal clear, easily made out, evidence with pictures, receipts, invoices, the adjudicator might be tempted to solve all the issues between you and the tenant.
The alternative is that the adjudicator makes the order for the tenant. Ask the adjudicator to comment on your attempt to raise your arguments and to explain that the LTB could not hear it---presumably because of no jurisdiction. This will be useful for the Small Claims Court judge to see.
Hope that helps
Michael K. E. Thiele
Hi Michael, i have a garnishment hearing in a couple of weeks and am not able to afford legal help or legal aid. As the debtor, do i have any chance at all to stop the garnishment, reduce the amount owing that was set by the tlb and make proper payment arrangements that i can afford. I am overwhelmed with all of this and is intimidating. With no legal representation, do i have a chance at this. Any advise is better than none.
ReplyDeleteHi: I'm sorry but your question is beyond the scope of this blog. On the assumption that you are in the Ontario Small Claims Court, I'll recommend that you read Rule 20 of the Ontario Small Claims Court rules. You will find in that rule certain powers of the Court that can be used for your benefit, depending on the circumstances. Check at your local Courthouse whether there are any pro bono legal services--often enough there are. While I don't know your circumstances, I'll presume that there is some hardship. When you attend at Court be in a position to show documentation, statements, pay stubs, EI, ODSP, whatever your income sources are, expenses are--if I recall correctly there is a budget form that you can fill out. Nothing infuriates a Court more than being asked for the exercise of discretion while at the same time having the requestor state "its at home" in relation to the evidence.
DeleteGood luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteOur landlord received an excessive water bill. He blamed us for the toilet leak and filed a case at LTB. The LTB upheld his claim and granted him the claim and the cost of filing. When we applied for a review, the new member decided that since there was no physical damage by the tenant, excess water bill is a consequential damage and hence LTB has no jurisdiction. We again applied for an amendment not to grant the cost of filing since he did not win. The LTB agreed and amended the order not to give him the cost of filing.
Now, he has filed a claim with the small claims court. As part of his claim, he says that we have cheated the LTB court and LTB did not conduct the proceedings properly regarding the filing fees.
Now, my question is doesn't it amount to my defamation and contempt of court? Does he has protection under 'absolute privilege' at this stage of the proceedings? I am seriously thinking of suing him for defamation because he categorically says that I cheated in writing.
kindly advice me. Thanks.
Hi Mysori: You are describing a very odd set of circumstances in relation to a hearing and the making of orders. Frankly, I would have to see the Orders to make sense of what you are explaining to me. I don't understand why the LTB would not have jurisdiction over these issues--specifically the subject matter of the claim. If the board made a distinction based on physical damage and "consequential" damage I frankly don't understand that point. If the accusation is that you damaged the toilet and caused a leak then the board could decide that. If the allegation is that the toilet was leaking, causing no damage, but caused a very high water bill then the issue is whether you were aware of it, and whether you permitted the wasting of water. Most leases even contain a clause respecting waste of utilities. Allowing utilities to be wasted would also, in my view, be actionable against you and if proven could give rise to liability and termination. The Board too would have jurisdiction over that. I don't see why the Board would be making orders, declining jurisdiction, and forcing the landlord to go to small claims court.
DeleteAside from those comments. Defamation law is complex. It is generally understood that allegations made in pleadings and in the context of litigation is not actionable. I presume that there are exceptions but I am not aware of them. My experience has been that allegations that impugn the integrity of parties attract serious cost consequences when they are not proven. You will find lots of caselaw on point by searching the issue on www.canlii.org.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteI can understand that you might be busy. Any chance of responding to me sooner? Thanks in advance.
Hi Michael,
ReplyDeleteThis is Mysori here. For some reason, I have not been able to use my handle.
Thank you very much. I apologize for not being clear on the first part. Following are the exact words used by the Member in his order:
"In the case at bar, the Landlord is claiming compensation for the substantial monetary increase in water bill because the Tenants did not notify the Landlord that there was a leaky toilet. According to the Residential Tenancies Act, 2006, the board can only award compensation for the undue damage. The Board cannot award consequential damages. For example, if a tenant makes continuous loud noise and as a consequence the neighboring tenant vacates the rental unit, the Board would not be able to award the consequential damages against the Tenant making the loud noise and causing the landlord a loss of rental income because the Board is limited to compensate only for undue damage to the property. In the case at bar, if the toilet leaked and caused undue damage to the residential complex the Board may have awarded the landlord compensation for the undue damage because it is within the legislative authority of the Board"
I agree with you on the second part that defamation claim would be complex particularly while he can claim absolute privileges. But you have given me good clue about "allegations that impugn the integrity of the parties". I have questions about how to communicate this to the judge:
1. Should I say so in my defense? I have already filed my defense and the time period for filing another defense is over.
2. Should I make a letter to the small claims court with a copy to plaintiff?
3. Is there a specific form to ask for costs including compensation for the allegations that impugn my integrity if not proved?
4. The main subject matter of the case is excess water bill, loss of rent, lamination damage, paint on the wall (Now, he has become vengencefull and added all that he can think of and has increased the claim from $700 to $3000). Off course, I have my defense for each of his claims. My question here is even if I lose the main case, will I be compensated for the allegation made by him in his pleadings OR it will be considered only when a loser has to pay the costs to the winner?
Thanks for your time and expertise.
Hi: Costs in a Superior Court action, including small claims court, are usually claimed in the claim or in the defense. In small claims court you do not need to ask for costs in your pleading. I've had the experience as well, in the Superior Court, where costs were not asked for in an application that the Court proceeded to award costs based on its inherent jurisdiction over its process. Costs being understood to be in the discretion of the Court.
DeleteThank you setting out what the adjudicator wrote in the Order. I don't actually agree that there was no jurisdiction in the Board to entertain the claim but you have what you have and it appears that no one has appealed. A Small Claims Court judge may not agree that the Board does not have jurisdiction over this matter and certainly a small claims court judge would not be bound to the decision of the Landlord and Tenant Board.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteCan a paralegal get a judgement to garnish wages without serving in person?
Hi: A ganishment, for wages, for bank accounts, for anything, may only be issued by the Court if there is an underlying Judgment. A Judgment is typically obtained after a trial or consent. Another way that a Judgment is obtained is by converting a decision of a Tribunal to a Judgment of the Court.
DeleteSo, to your question about personal service. If the Judgment that is being enforced arose through a Court action then at some point in the process there needed to be personal service of the statement of claim or service of the statement of claim pursuant to an "alternative" to personal service as authorized by the Rules of the Court out of which the Judgment was issued. The usual and normal process has the Statement of Claim being personally served.
After the first personal service of the Statement of Claim (Plaintiff's Claim) no additional documents are required to be served personally (other than a contempt motion). Hence, it is possible for a party to be garnishing wages without personal service of documents so long as the originating process (the start of the lawsuit) was personally served or served in accordance with the Rules. You would not necessarily have advance notice of a garnishment. Note that the garnishment process does require the Notice of Garnishment to be sent to the debtor after it is issued (which usually happens after the creditor (person who owes the debtor money) is served with the garnishment.
Where the Judgment being enforced arose from the decision of an administrative tribunal it is entirely possible that you were never personally served with anything. In the Landlord and Tenant Board context the originating process (i.e. the application that starts the case)is served by mail. These days it is the Landlord and Tenant Board that is mailing the document to the address listed on the application. Personal service is very unlikely.
If you are being surprised by a garnishment based on a Judgment that you have no knowledge of, you may go to the Courthouse out of which the garnishment is being issued and look at the Court file. The Courtfile will contain the Judgment which should then allow you to trace backwards how the Judgment came into existence. If you did not have knowledge, if you would have defended, etc. etc. etc., you can bring a motion in the Court and/or at the Tribunal to review the order or set aside the Judgment. There are specific rules that address this process.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hello Mr. Thiele,
ReplyDeleteI am a Family Law law clerk in Toronto Ontario and I have decided to take a stab at filing two Applications, T2 Application for Tenants Rights and T6 Application about Maintenance with the Landlord and Tenant Board against my not for profit co-op in Scarborough Ontario. As a legal professional you know those days never really are just Monday to Friday and 9am - 5pm. There are days I leave home when it is dark and come home when its dark.
My reasons for filing these Applications and serving my co-op are as follows for the T6:
My front entrance buzzer has not worked for over 6 years, I have to go down to the front entrance to let in guests, couriers, and delivery service agents.
The lock on my door is defective for over 3-4 years now. I must shake my door and jiggle my keys for my unit door to lock. This is obviously not safe.
My kitchen sink has been leaking for so long I cannot remember the duration of time. Mold has formed and the tap has started to rot away.
I have never had my filter changed on my furnace by the co-op. I have been purchasing these and changing them since I moved in back in 2008. I have come to understand the co-op is required to provide these to tenants.
My furnace is intermittent, sometimes it works sometimes it does not. Meaning we might have hot water and heat this Winter or we might not. I was told by the co-op that because sometimes it works that's good enough for them.
The air ducts have never been cleaned since Ive lived in my unit 2008 to the present. My child, pets and myself are ill when we are home a few times a year. My cat now has Asthma and I am told by my Veterinarian do verily believe it is a result of bad air quality within my unit and/or building. (Poor Kitty)
There are so many other issues that to me, are not that serious and I fixed myself out of pocket. Such as broken cupboards, broken kitchen drawers, bedroom closets off the track as they have worn-down and are old. Old flooring that I have replaced myself in the bathroom and kitchen, the list goes on.
As a Law Clerk I know the importance of paper so I have written letters and requests regarding the above to the co-op to no avail. I have also left voice messages regarding these issues. To prove my letters are ignored I wrote letters and attached my money orders for rent to them to assure they received my letters. To date many of my letters have not been answered or the issues have been downplayed.I finally decided enough is enough and filled a T6.
Continued....
ReplyDeleteT2: The maintenance worker at the co-op is a piece or work. He yells at tenants, chases them, throws things, I even have a cell phone video of him screaming and waving tools at someone in the driveway. He has banged on the hood of my car, he has charged towards me and interferes with my car that I park on the city street which is not on the co-op property. He calls parking enforcement on tenants who park on the street almost daily. I have incurred hundreds of dollars in parking fines for a by-law that nobody enforces as the parked cars do not interfere with any use of the street or co-op. He calls parking enforcement at 3am and 4am most nights to report cars. He makes it hard to sleep at night knowing your car my have a ticket in the morning or maybe even be towed.
People have told me to move if I'm paying rent and these things are continuing to happen. It is much easier to say than do. With a single income household and a child to raise alone I am doing the very best that I can. I really do wish I could move somewhere I feel my house is a healthy and safe place.
I am currently looking for caselaw that relates to similar issues and hope I can find some before my January 4, 2016 hearing. I asked for rent abatement in my T6 of 8 months as I have been writing letters and making requests for over 5 years and the co-op has not done anything. I think 8 months is reasonable. This would give me time and the money to move. In my T2 I asked that the maintenance workers behavior be Ordered to stop or else I would ask for costs that I have incurred because of his interference with my reasonable enjoyment where I reside. In your opinion do you think I have a chance with the remedies I have chosen? Are you aware of any precedents that are similar to my situation where the tenant was awarded the same?
I appreciate your time and expertise.
C.Reid
Hi M. Reid: I would appreciate it if you would explain the nature of your tenancy to me. I'm asking because I want to be sure that you have the right to even bring a T2 & T6 application. If you are a member of a Co-op and have rights under the Co-operative Corporations act then you are unlikely to be a "tenant" with the right to file applications at the Landlord and Tenant Board. I know this might seem odd given that Co-op's in Ontario are now able to apply to the Landlord and Tenant Board for eviction (and not in the Superior Court of Justice any more). However, when the changes happened that allow Co-op's to apply to the LTB that did not include a right for Co-op members to be able to file with the LTB. That being said, I think you can be a tenant if the Co-op is a landlord towards you--in which case you are unlikely to be a member of the Co-op.
DeletePlease let me know. It has been a while since I looked at the Co-op sections of the RTA so I should check as well to make sure they didn't expand the law to allow Co-op members to access the Board.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Mr. Thiele,
ReplyDeleteThank you for your quick reply.
I am not sure if I am a member. I have never voted towards the governance of the co-op nor have I ever been made aware of any meetings. I did not have the option to elect any board members nor do I know who they are. My rent is not geared to my income. I pay the full amount. I have never received an audited financial statement that shows how the co-op spends money. I believe only members have the above information. I could be incorrect. How could I find out if I am a member or not? When I issued the Applications, the LTB did not indicate that I could not. Hope this helps.
Hi Again: Do you have a lease? What does it say about your status in the Co-op? With respect to your application, presuming you are an RTA protected tenant, the key will be to demonstrate the seriousness of the issues that you are dealing with. As you are seeking a significant rent abatement you will need to show that the premises have been uninhabitable or should not have been inhabited. A problem that you are going to run into is that you are figuring the degree of the abatement based on several years of occupancy. Under the RTA you are limited to one year from the date of the application. Hence you may not use the 5 years of shoddy service from the co-op to justify the abatement that you are seeking. As you can imagine it is much more difficult to get to 8 months abatement using only the last 12 months.
DeleteYour T2 has a chance to yield a significant remedy if you can prove the harassment and intimidation by the superintendent. The fists on your carhood and the yelling are simply unacceptable. The issue will be proving that it happened. Any video? photos? If not, any neighbours willing to testify or that you could summons?
Ultimately, you have the burden of proof and you need to demonstrate that you are suffering a severe breach of the landlord's obligations to get to the kind of remedies you are seeking. With respect to the condition of your unit have you had Property Standards in to make orders?
For caselaw and authority you can obviously search www.canlii.org but if you are near a law library at any time check to seek if they have Jack Flemings text books--there are two. Each has a great number of useful cases including hard to find Board decisions. While Board decisions are not binding per se, they are helpful to get a sense of how the Board is going on certain issues.
Good luck
Michael Thiele
www.ottawalawyers.com
Thank you for taking the time to respond and provide such great info. I do have a lease and it does not make any reference to a "status" in the co-op, it just says I am the 'tenant'. I am aware of the one year limit. I just wanted to point out to the LTB that this has been ongoing for over 5 years. An 8 month rent abatement was just a shot in the dark to try and grab some attention to how serious I feel the matter is. I have one video of the superintendent yelling and only pictures of the unit/building in bad shape. I hope this will be enough for a outcome in my favour. The property standards representatives said because I had already issued and served an Application they could not get involved. I will try my best to present as much supporting evidence and find Board Decisions that might help me. Thank you again. C.Reid
ReplyDeleteHi: Just a last thing. Please read the provisions starting at section 171.1 of the Co-operative Corporations Act. This is the part of that act that deals with Non-Profit Housing Cooperatives. While it may not come up, the member may be concerned about your right to bring the application against a Co-op at the LTB. As you read through section 171.1 note the parts dealing with member units and units that are designated as non-member units. Then read further on and see how the exclusion of the application of the Residential Tenancies Act to Co-op Housing Units only applies to member units. The point is that if you are in a non-member unit then the RTA can apply to you and you have the right to be bringing this application against the Co-op. This assumes of course that you are in non-member unit. Anyway, I think you'll see the point if you review these sections. I think it is likely that you will be confronted with the jurisdiction question (whether you can proceed at the Board or not is a jurisdiction question).
DeleteGood luck, please let me know how it goes.
Michael K. E. Thiele
Hi Michael, your blogs are very helpful , I hope you can give me some suggestions , my tenants moved out after LTB eviction hearing but still owed back rent, they successfully won an order and I have to pay them some money, should I take them to small claim court to sue for the rents that they still owed me before they moved out or wait to counter sue it if they start the small claims court first. Please help, thank you
ReplyDeleteHello!
ReplyDeleteI am desperately looking for some advice and or your opinion.
This summer things got a little hard for us - no work..and landlord "hired" my husband to do a bunch of stuff around the house for him, said he had months and months of work Monday-Friday etc, etc..hubby kept trying to go work for him and had excuse after excuse (so besides the point in my question but thought more into might help).
Anywho, he finally got a job...then got slammed with $13,000 child support (for a child he can't nor hasn't seen in years) he made a payment plan and there doing garnishments off his cheque. Well we fell behind on rent, about three months in total July+ half of August and October, we did keep in contact with our landlord and let him know, he always said "oh no problem, we'll work it out" etc, etc..until October our cable,Internet, phone got cut off and landlord tried to reach us and we didn't get the messages but replied right away once we got them (about a week later) and he completely freaked out on us and told us we had to move right away and give him all the money we owe him asap. (I swear he's extremely bi polar) we told him we'd like to work it out and make a payment plan and stay but if he wants we'll move out, again it was fine then one day it wasn't..he sent me an email saying "I'm sorry I don't want to be screwed, just making a paper trail but ignore the eviction It's only a paper trail" and it had a eviction notice via email to be out by October 18th or pay all the money owed (a little less than ($3,000) and stay..which was extremely weird and unsettling..he was telling us we could stay and do a payment plan but sent us an eviction notice and said to ignore it! So now I was a bit worried because he's always been super weird like that. So I started looking for a place. A week later he asked when we were going to be out?! Saying "il have the cops there on Friday to change the locks" ..completely out of nowhere!! So I told him by the end of the month? He said okay no problem..."we're all on friendly terms". We moved out for October 27th..
We have P.O boxes and went to check the mail (we moved to a another town) and had the eviction notices to be out by October 18th ..then there was another letter stated we had a "trail" date (I think) at the landlord and tent board..then another letter saying the landlord didn't show up and we didn't show up (we didn't even know about it, since we moved and we didn't check the P.O box) so the case (I think you would call it?) was being thrown out or something along those lines....
I've kept in contact with him (more like he harasses, and threatens at the time) asking for rent owed..I told him we'd like to pay it..we can do possibly $200 a month (single family income - hubby is already getting garnished $800+ a month from his pay from child support) and he doesn't make that much to begin with..he only works hourly, so no work no money...the landlord wants $400-$500 at least per month and he wants us to pay the three months that we missed plus filing fee to the landlord board plus the two months noticed to move out we didn't give.. (But we were evicted?) so..he says he's going to garnish all my husbands pay..I told him we couldn't survive - we have a small toddler daughter now as it is with child support being garnish, and he said he doesn't care, he'll do it anyways.
Our bills our all behind, going to get cut off, we hardly have food, rent just barely got paid. We owe money here, there, eveeywhere (young and dumb with credit, financed a vehicle) we have no assets, no family support, nothing. Been taking about filing Bankruptcy for a while now, it's about to come to that too. We're not trying to hide, he has all my husbands info anyway, license, work number, emails, sin, DOB..everything.
Please, what's your advice?
Hello Mr. Thiele,
ReplyDeleteI wrote to you back in December 2015 and I wanted to follow up. As a Law Clerk I did my homework and looked up all case law and precedents for my hearing, and wouldn't you know, I won! The landlord wasnt and still is not very happy with me. I had letters dating back 3 years ago regarding maintenance issues and my entry buzzer not working. They had no valid reasons why my letters were ignored and why it took me taking them to court to address these issues. Now the real trouble starts. An Order was issued to repair all issues brought to the attention of the landlord via letter and brought up at the hearing. All repairs were ordered to be done by March 15, 2016. To date only 3 things of about 8 have been repaired and to add to this the landlord had maintenance men enter my unit twice without letting me know. In your opinion, what should my next steps be? Should I let it go, file another Application, withhold rent and repair issues myself or move?
C.Reid
Hi Carla: Good for you in your success at the Board. At this stage I would document the failure of the landlord to complete the required repairs and I would write letters to the landlord confirming the breach of the order and asking when you could expect the repairs to be completed. Did the Order provide any enforcement mechanism in case the work was not done? I presume not as otherwise you would not be asking the question. In the absence of an enforcement mechanism (or penalty clauses awarding you an abatement for failure to comply), I would be inclined to write to the Member, asking for the matter to be re-opened with an explanation that the Orders made have not been complied with. This may result in the matter being re-opened and the adjudicator may deal with the "consequences" of not complying with the order. This is a bit unusual, but it may work and save you extra work.
DeleteThe alternative is to bring another application alleging a breach of the first order and seeking a remedy for a breach of the Order.
As for moving out, repairing the issues yourself, or withholding rent, only you can know whether you want to move and whether this is worth it or not. Repairing the outstanding items without Board authorization risks not getting paid for these items and withholding rent is a self help remedy that the Board tends to frown upon--though it can be very effective. If you go this way depends on how aggressive you want to be. Given your success to date, my inclination would be to go back to the Board for "orders" as opposed to the self help remedies.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI have gone through the LTB and have also received an order through the divisonal court after the ltb order was appealed, for an ex tenant to pay me the arrears owed, which lifted the stay that was put on the ltb orders.
I do not have any information about where the ex tenant is now working, living, etc. With these orders in place, what avenue would you reccommend I should take to pursue enforcing the orders and retrieving my money? It is approx 6 months worth of rent owed because thats how long the ltb process and divisonal court hearings ended up taking with all the false appeals put forth by the tenant. As you can imagine its not a small amount money which is why i want and need to pursue this.
Hi: The short answer, I think, is to look up a local collection agency and see if you can get them to pursue the matter for you. As you have Orders for costs and rent arrears the collection agency can, if you have the right details, make a credit report and take action against the tenant. The collection agency tends to have better research and locating skills than private individuals. Your complete lack of information respecting the debtor is a big problem. On top of that, if the debtor has no assets, is on public assistance, he may be judgment proof--meaning the money is uncollectible. I would be careful about throwing good money after bad in chasing this person. A collection agency will often do the work for a percentage of the recovery so you will not go deeper in the hole.
DeleteGood luck
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
I have an order from LTB in my favor. can I go to any small claim court in ontario to get enforceable judgement or I have to go to the court close to the rented property and do i have to fill any form.
ReplyDeleteHi: Great question and I don't know the answer. I think the only practical way to find out is to ask the Court as the legislation isn't clear on the point. The legislative authority to file a Board order with the Court is in the Statutory Powers Procedure Act and it provides as follows. You will see that it is silent about which Court you can take the Order to. This suggests to me any Superior Court is fine--but the practice may be different.
DeleteEnforcement of orders
19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
Notice of filing
(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing. 1994, c. 27, s. 56 (35).
Order for payment of money
(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
Good luck, if you find out please let me know.
Michael K.E. Thiele
www.ottawalawyers.com
This comment has been removed by a blog administrator.
ReplyDeleteHello Michael,
ReplyDeleteThank you for the information provided. I have a quick question for you. Is there any limitation period for the LTB order to be converted into a court order, or it can be done 20 years from now?
Hi: I don't, off hand, see a time limit for converting an order of the Landlord and Tenant Board to an order of the Superior Court of Justice. The converting authority is in the Statutory Powers Procedures Act and it provides:
DeleteEnforcement of orders
19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
Notice of filing
(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing. 1994, c. 27, s. 56 (35).
Order for payment of money
(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice. 1994, c. 27, s. 56 (35); 2006, c. 19, Sched. C, s. 1 (1).
That being said, your limitation period question may be more about the enforceability of older orders than the process of converting a Board order to a Court order. Judgments/Orders don't last forever. I'd start with the Limitations Act to see how long a Court Order is valid, or how long the underlying order is valid. I've had no cause to research the point but in the deep recesses of my mind--i.e. law school---I seem to recall something about Judgments being valid for 20 years. Beyond that there are questions about the validity of writs after they expire (and whether they are renewed or not before expiry). You'll have to satisfy yourself in this regard as "enforcement" of Judgments is a speciality all unto itself.
Good luck
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
Michael, Thank you very much for your response. I really appreciate it. I will check the Limitation Act for the validity of the orders. However,with respect to my situation, my question is about the validity of the period for converting an LTB order into a Superior Court order rather than the validity of an order itself. Here is the situation. I just received the order from LTB, but since my ex-tenant is hiding and I do not know her new address ,which is required on the 20A, I cannot do it at this time. I want to search, but it can take time.My question is when the LTB's order will expire for the purpose of converting it into the court order? Thank you very much again for your response.
DeleteHi Martha: As far as I can tell the Form 20A is not needed for this process. Form 20A, I think, is only used if the debtor is in breach of a payment Order in the small claims court. I don't think that you need the debtor's address to convert the order--which would make sense as some of the remedies--like filing a writ of seizure and sale against land broadly catch any property that is owned by the debtor whether or not you know of its existence or the location of the debtor. If you were advised that the Form 20A was needed by the Court clerk, perhaps try a different clerk and see if the result is different.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
sorry, i had one other additional question. As I mentioned above, i was recently granted an order from LTB to evict my tenant and receivE $7,000 for damages, My tenant refuses to pay. I intend to convert the Order into a Small Claims court judgement and seek garnishment.
ReplyDeleteQuestion: my tenant is a foreign student, and the main reason for renting to him was because he is sponsored by his country's embassy, which pays for all his medical and educational needs. In addition, and according to the paper from the embassy he provided at the time of signing the lease, the embassy pays him $2,700 every month for living expenses until 2018. I verified this amount on his CIBC bank statement that he also provided me at the time of signing the lease. Do you think I can garnish this money coming from a sponsoring embassy ?
Hi: Interesting question---I don't know if the garnishment would be honoured or not. Enforcement of Judgments is a speciality of its own and certainly anything involving foreign governments and embassies can be very difficult. I've been down that road a few times over the years and my experience is that there doesn't seem to be much consistency in approach by the embassies. You'll have to find a local lawyer with experience or perhaps ask at the Small Claims Counter.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your reply. One follow-up question. I did go to small court today and at the time of filing for notice of garnishment, realised that on the bank statement (cibc) that my tenant had provided, his name is spelt 'slightly' different than how it is spelt on the ltb order (which is what his ontario driving license and passport says) hence which is also the name that will appear on the notice of garnishment. I tried my best to see how i can add an "aka" on the forms, but from what i can gather (talked to legal aid and some lawyers at court) that i would have to essentially go all over the ltb process again to add an "aka" to my ltb order and hence notice of garnishment. Question: in your opinion is that the case ? And is there any other way for me to increase my chance of ensuring the banks matches his name on the notice of garnishment and bank records (perhaps i can provide a cover letter with additinal details, since i cant change the name on the notice of garnishment) ?
DeleteJust wondering if you think it would be hard to collect from a landlord who usually is unreliable? I went for my sister and we won her case against landlord for failure to provide a vital service(heat) during the winter months. We as of yet do not know that amount he is being ordered to pay her. The adjudicator is also looking at the legality of imposing a fine against him. Also if he doesnt pay, she is on ODSP,so what help would be available to her in Cambridge,Ontario to assist with collecting the funds should he not pay?
ReplyDeleteIs this article still accurate? or something has been changed since 2013?
ReplyDeleteHi. It is still accurate. The nature of forms and formats have altered over time but the overall scheme is still the same.
DeleteMichael Thiele
I have an LTB order against my tenant of $7k for rental arrears, and intend to obtain a Small Claims Court Judgment to enforce it. Now that the tenant has been evicted and I have completed an inspection, I intend to sue for an additional $15k in Small Claims Court for damages to the property and missing furniture. Do I make two separate filings, one for each claim, or can I combine the 2 into a single enforcement since the combined amount is less than 25k?
ReplyDeleteThis is interesting--ultimately from the enforcement perspective. At this stage though, you are effectively doing two separate steps. You don't sue on the LTB Order hence you would not include this in your new claim. The LTB Order becomes a small claims court Judgment simply upon paying a small fee. What will be interesting is after the trial on the new amount and you then have two judgments against the same party. Will the Small Claims Court allow you to combine the Judgments into one garnishment, one writ of seizure and sale or one debtors examination or will the processes for each Judgment have to remain separate? That question, unfortunately, is not one that I know the answer to. You will have to inquire at the Small Claims Court and Court Enforcement Office in your jurisdiction. I wouldn't be surprised if you get different answers to this question depending on the day and who you are talking to. I'd appreciate it if you would let us know what you discover.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI have a tenant who hasn't paid rent for the past 6 months and owes us $10,000. We went court and the judge ordered her to pay a fee to us the day after the court date. She did not pay us those fees. Around 10 days later she got up and left, in which she didn't give us all our keys. We have no clue where she went and how to collect the rent that we did not receive.
Hi: The good news is that this tenant is out of your rental property! Unfortunately, that might be the extent of the good news in relation to this former tenant. Enforcement of Judgments can be a tricky business. If the debtor has few assets, doesn't work, or works under the table, it can be very difficult if not impossible to collect what is owed. What you will no doubt realize is that in Ontario there is no entity responsible for enforcing Judgments and there is no consequence for your former tenant if she does not pay. Unless you take action to enforce the decision nothing will happen.
DeleteFinding a tenant--i.e., where they live, where they work, what assets they have, is a matter of investigation and sometime just plain luck. Depending on how much identifying information you collected at the time of her application you may have lots or very little to go on (i.e. a birthdate, driver's licence, employers name).
Unless you are rather experienced in chasing debts--or if your tenant has a great job, lots of assets, and reasonably traceable--you might want to consider finding a collection agency that will do the chasing for you and do so for a percentage.
If you are inclined to take a run at it yourself, google the Ontario Small Claims Court rules and take a look at enforcement---1) debtors examination, 2) garnishment, 3) writ of seizure and sale, to familiarize yourself with the tools that the Court gives you (note each one costs a bit of money to use). Then, through luck, investigation and digging, try to find the tenant and the details you need to pursue use these tools. It will be time-consuming and likely frustrating as the tenant is not likely to cooperate with you.
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
I have a home that I rent out the room and my 2 boys and myself lived in the house. I had a renter who didn't pay for month of April and he came and got his stuff. Am I exempt from the Residential Tenancies Act? Section 5 (i) He drank my special rum value $200. Can I take him to small claims court?
ReplyDeleteHi: If I understand correctly, you shared a kitchen and/or bath with this renter. That would make sense if he had access to your personal property (i.e. the Rhum). This does seem to be an RTA exempt relationship based on section 5(i). Your right to proceed against him is indeed in the Small Claims Court. You can sue the renter for the unpaid and owing April rent as well as for any other damages caused. If you can prove the theft of your liquor that would be a good claim--though I doubt it would be a worthwhile claim on its own (i.e. without the rent claim to go with it). Please be aware that proceeding to the Small Claims Court can be time consuming and you will incur Court filing fees for proceeding. If you are "successful" you will still have to enforce the Judgment that you win against the renter. Unless you do the "enforcing" the Court does nothing to assist you. This can be a big deal and major problem if the renter has no money or has a source of income that can't be seized (like Ontario Works or ODSP).
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteMy landlord was ordered to pay me back my rent but is not responding to my messages or calls. How long do I have to wait before I bring the issue to the small claims court and do I have to warn them before I do?
Hi: I assume that you are out of possession--otherwise you would simply deduct what is owed from your ongoing rent obligation? The Order that you have requiring payment normally contains the payment terms. The Order will say, pay XXX dollars by YYY date, after which time interest accrues at a certain rate. The Order is enforceable right away though it is customary to wait until the date in the Order for payment by XXX date. If the Order doesn't have a payment due date then it is due right away.
DeleteYou do not have to warn the landlord. You can enforce right away. Take the Order to the Small Claims Court and go ahead and use the enforcement tools of the Small Claims Court to get what is owed to you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael thank you for the reply. I have already left the unit so I’m just trying to collect the funds back. My second question is that this year I’ll be make over the amount to receive a fee waiver but last year I didn’t make enough. Am I still eligible to receive the fee waiver? If not can the judge order the landlord to pay me back the filling fees as well. I’m a student and I work full time so each penny counts for me.
DeleteThank you
Hi: I am not sure that you can actually get a fee waiver for enforcement of Judgments (even if you would otherwise qualify). That is something to ask at the Small Claims Court counter. That being said, if you are not eligible for a fee waiver (based on income) then the question is somewhat moot with respect to waivers. That being said, the costs to file any enforcement with the Court Enforcement Office (garnishments, writ of seizure and sale etc.), are enforcement costs that get added to the amount that you can recover plus other small costs for preparing the enforcement documentation (check with the clerks--they have these numbers top of mind). The key of course, is actually recovering through he enforcement process. The landlord may seek to dodge and evade payment so you should think tactically when spending money on enforcement (i.e. enforce where it is most likely that you will recover).
DeleteGood luck
Michael Thiele
www.ottawalawyers.com
Hi, Can you file a Certificate of Judgement Form 20A in any small claims court or does it have to be in the jurisdiction where the debtor was last known to reside?
ReplyDeleteHI: Sorry I would only be guessing at the answer. My experience has been that you can file it anywhere. The "trick" comes to enforcing as any of the execution processes need to be routed through the Court where the creditor is located. Sorry, I can't be more helpful.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael!
ReplyDeleteCan I convert a consent order (agreed to through mediation) from the Landlord and Tenant board to a judgment of the Ontario Small Claims Court? Or does it have to be an order through a hearing? We have a hearing coming up and we believe the tenant will agree to a consent order to pay her rent arrears. We don't want to have to sit at the landlord and tenant board all day if a consent order would do the trick with small claims court, but we definitely want to retain the ability to garnish wages if she doesn't pay up (we do know where she works).
Thanks!
Jackie
Hi Jackie:
DeleteIt sounds like you might be confusing a "consent order" with a "mediated agreement". A mediated agreement is not useful to you for enforcement purposes at the Small Claims Court. A Consent Order is easily enforced through the Small Claims Court. Hence, if you are at the LTB and know the terms of your "deal" the adjudicator will typically ask for consent matters at the beginning of the hearing block--meaning you are in and out relatively quickly. If you mediate a deal and it involves termination of the tenancy then that part needs to be an Order anyway. Hence, instead of part mediated agreement and part order, get the mediator to make a joint submission for you on all of the issues for a Consent Order.
If the tenant does not fulfill the terms of the consent order (the payment provisions) then you can take the Consent Order to the Small Claims Court and on filling out the paperwork the Order becomes enforceable.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteWe are renting a room to someone in our home and can't seem to get them out. We share a kitchen and bathroom with this person. We served her an N4, and later found out that we are EXEMPT from the Residential Tenancies Act. She is several months behind in her rent.
Would you be able to offer some assistance on how we go about having this person evicted and what the proper steps are next?
Many thanks,
Lindsay & Mike
Hi Lindsay & Mike:
DeleteThe Residential Tenancies Act (RTA) provides the mechanisms for resolving disputes with tenants, getting Orders, and getting the Sheriff to evict. While the RTA systems are cumbersome (at times) at least there is a defined path forward to resolve disputes. As you have discovered, while the RTA covers residential tenancies, there are certain residential arrangements that while looking like they should be covered by the RTA are in fact exempt. You exemption is likely based on section 5(i) RTA which provides that the RTA does not apply where the landlord shares a kitchen and/or bathroom with the "tenant". Because the RTA does not apply there is not security of tenure for the tenant/roomer. The tenant/roomer is not entitled to the protections afforded under the RTA.
Your relationship with your roomer is perhaps a licence and/or contractual in nature. Your (hopefully) written agreement spells out the basis on which you agree the relationship can be ended. Where there is no such written agreement and not even oral agreement (because you just didnt talk about it), then the governing philosophy should be reasonableness.
In theory, you can tap the tenant on the should at any time--day or night--and say get out. They have to comply. Failure to leave makes them a trespasser. In theory, a call to the police gets them removed from your property.
Of course, if the roomer is fully paid up and you want them to leave because of their choice about some inconsequential thing and you insist that they leave in the middle of the night--then you can expect a lawsuit. That simply isn't reasonable and the roomer will likely have incurred expenses dealing with being unexpectedly homeless. So it comes down to notice. An old rule of thumb is that reasonable notice is the period of a rental period. If they pay by the day then a day, if by the week then a week, month then a month.
The reasonable notice also depends on "why"the notice is being given. Catch the roomer dealing in drugs from the home (or any other serious criminal activity) then reasonable notice could very well be zero notice and a call to the police. Context is everything.
What do you do when the roomer won't leave even after notice is given? Physically removing the person is fraught with risk of violence and is perhaps more confrontational than you're prepared to be. The alternative then is to seek the help of the police. Stop by the police station, speak with them and explain the situation. The police are often reluctant to do anything if they believe that there is a Residential Tenancy in place. You could explain the section 5(i) RTA exemption (perhaps print off a copy). If you learned about the exemption because you applied to the LTB and your case was dismissed because of a lack of jurisdiction then hopefully the Order dismissing the application made note of the fact that the RTA does not apply (very handy to give to the police). If the police are satisfied that the RTA does not apply you can ask them to come to the home to remove the roomer as a trespasser.
DeleteIf you speak to the police--and they agree to come to remove the person--then you could (if you don't fear violence or other absurd reaction) advise the roomer that you have arranged for the police to attend at XX time to remove them from the home. Hopefully with the warning the person will leave before the police arrive. If not, well let the police come and do their job.
What if the police won't help? Truly a brutal situation as I assume you're unwilling to simply change the locks and bag the roomers stuff and put it on the porch. In that situation you are left with an application to the Superior Court of Justice for a Writ of Possession. Unfortunately, nothing about that application process is intuitive or easy. The LTB Forms and processes are child's play compared to the Court process. Practically, if you're forced to apply for a Writ of Possession you are going to need a lawyer. Given how that process works you should be prepared to spend a rather significant sum of money in fees to get the Order. The saving grace, if the roomer has money, is that you will likely get a significant costs award payable by the roomer at the end of that hearing. If the roomer has nothing--and likely never will--then you are out of luck on the costs. If you do have to go the Court route for a Writ of Possession (enforceable by the Sheriff) do consider a lawyer--but also a lawyer who has "done this before" if at all possible. These are unusual applications and time consuming (i.e. expensive) to get up to speed on if one hasn't done one before.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello, first and foremost thank you for helping all these people! Currently my tenants were ordered to pay or leave by February 29th, which they are not. I will have to wait for Monday to file with the sheriff. Do I only pay the sheriff if he needs to come and evict them or do I need to pay to get the whole process started? 2nd question) I am also filing a claim for rent arrears and also damages to the unit. I know they are getting help from the government (a couple), but only the girlfriend is working. How does the whole garnishment work, and what is meant by I have to pay if the money doesnt come. 3rd question) They also signed a contract today made by me (initially said they would leave, now wont), that states that the tenancy has ended and that they may keep their belongings in our garage until Thursday March 6th. Does that mean because they signed it, the tenancy has ended and now they are trespassing in my house and I can call the police for them to leave? Thank you for your help!
ReplyDeleteHello and thanks for these questions. The answers can get rather detailed (i.e. lengthy).
DeleteAs to your first question. The Sheriff (Court Enforcement Office) has its own process and requirements. I can speak to the process in Ottawa Ontario. Elsewhere in the province the process is similar but local procedures vary. In Ottawa you would attend at the Courthouse, Court Enforcement, and bring with you a Certified Copy of the LTB Order (that is the one with the red stamp that was mailed to you by the LTB). In addition, there is a form that the Sheriff requires to be filled out answering certain questions about the rental unit and tenants. Along with these documents you should print out a google map from the Courthouse to your rental unit showing the distance. The Google Map distance is used to calculate the travel charge. With these things in hand you attend the Sheriff and they will charge you in the range of $330. The amount varies depending on the travel charge. In Ottawa, the day after (normally) filing with the Sheriff the Sheriff will attend the property and post a Notice to Vacate informing the tenant that they will be evicted by the date on the Notice to Vacate form being posted. On the date indicated in the Form the Sheriff will return and enforce the eviction.
So, the short answer is that you pay as soon as you file and the money is spent once you do whether you cancel the sheriff or not. (It makes sense once having paid to allow the sheriff to come and get the unit returned to your possession officially. The Sheriff gives you a confirmation form).
Your second question. Enforcement processes are complicated, time consuming, expensive and frustrating (just my opinion). You will be using the tools of the Small Claims Court which includes garnishment, writ of seizure and sale, debtor's examination. You are best to read the brochures and the Small Claims Court Rules on the topic. Unless I know for certain that a garnishment will yield results or that the debtor has real estate I recommend to clients to turn over Orders for enforcement to a collection agency as you can spend a lot of money filing enforcement steps and get nothing for it. A collection agency has more tools.
Your third question. The process for eviction is set out in the Residential Tenancies Act. Presuming they have RTA rights (which it appears they do because you obtained an Order from the Landlord and Tenant Board already), there is nothing you can do to bypass the process of enforcement. The Sheriff is the process of enforcement contemplated in the Residential Tenancies Act. The police won't act, or at least shouldn't. Bypassing the Sheriff and resorting to self help (even with the police) can become an expensive lesson with charges against you under the Provincial Offences Act. Your contract in relation to their personal property has likely varied your rights in relation to their personal property (as provided for under the Residential Tenancies Act). The RTA spells out certain rules with respect to personal property left behind when a tenant vacates and with respect to personal property left behind after the Sheriff enforces the Order. By signing the contract you have sought to "change" the RTA provisions. Certainly, you are not permitted to shorten or vary the requirements of the RTA (by contract) but you certainly can broaden them. The concern I would have here is that you have created an obligation outside of the tenancy in relation to their personal property. For this issue now, unless they remove their stuff and all is taken, I'd recommend being very cautious about disposing of anything and would urge you to get legal advice before getting rid of anything.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Micheal I got myself a lawyer to fight my landlord I moved into this house on Dec 1 2019 and on December 6 I had water issues either no water or some days brown water . I did a complaint to the landlord and she never did nothing about on February 6 2020 she got tired of hearing about it and came over with some man and bullied me and was yelling in front of my grand children and completely shut my water off. Do I have a case or what do you think I can do to get her to repair it. I'm still paying rent.
ReplyDeleteHi: Every part of what you describe is a serious problem and contrary to the RTA. Water is a "vital service" by definition (section 2 RTA). The landlord has a duty to repair and maintain the water to a proper standard and certainly the landlord can't turn off the water in a fit of pique. If it is necessary to turn off the water to work on the system then the landlord should make arrangements to provide water--truck it in, provide large bottles of potable drinking/cooking water etc. etc.. And then proceed to fix whatever the issue is and explain the timeline to you. It sounds like the landlord is doing the opposite of what she should be doing. You can call your city or township--they will have a property standards department or similar department that can inspect and make orders and likely do the repair if the landlord doesn't. If you are on well water then wells are provincially regulated and there are strict standards for potable water from wells. You can also contact the Housing Enforcement Unit ( a government agency), they will often contact the landlord, inform them of the illegality of what they are doing, and they can charge the landlord under the provincial offences act. Beyond that, you may of course bring an application to the Landlord and Tenant Board (Form T2 & T6). So yes, you have a case! I'm not sure if from your comment that you meant to say that you got a lawyer or that you need to get one. If you still need one, depending on where you are in the province, do consider a licenced paralegal as well. The key, whether lawyer or paralegal, is that whoever you choose that they have experience in landlord and tenant law.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com