Exasperation and frustration barely describes the feeling that many landlord's have when a tenant exercises his or her right to file an appeal to the Divisional Court. The appeal process causes an incredible delay and takes the efficiency of the Landlord and Tenant Board and dispenses with it entirely. The strategic use of the automatic delay caused by filing an appeal is a significant problem in the Residential Landlord and Tenant Law context. In recent months we again are seeing decisions from the Divisional Court where the Judge notes that the point of the appeal was delay (which succeeded) and that the appeal was devoid of merit from the outset.
So what happens? In a typical case a landlord files an application to the Ontario Landlord and Tenant Board. That case is heard within a month or so of the application being filed. A decision is made and the tenancy is ordered terminated and the tenant is required to move out by a specified date. Within 30 days of that decision the tenant is entitled, at law, to file an appeal to the Divisional Court on a question of law alone. So, prior to the enforcement of the eviction by Sheriff, the tenant files the appeal and pursuant to the Rules of Civil Procedure, and the Statutory Powers Procedures Act, the decision of the Landlord and Tenant Board (to terminate and evict) is automatically stayed. A "stay" means that the eviction order can not be enforced until the appeal is heard.
The key to the appeal process is to understand how an appeal proceeds through the legal system/court system. Unlike the Landlord and Tenant Board process, an appeal follows the Rules set out in the Rules of Civil Procedure. There is a significant difference in procedure from the Landlord and Tenant Board to the Superior Court of Justice (Divisional Court) appeal Rules. What was rather "people" friendly in the Board process now effectively demands the involvement of lawyers with appeal experience in the Court process. I have yet to see a layperson do anything more than muddle through an Appeal and in each instance time was wasted and procedural advantages lost due to inexperience with the process.
In Eastern Ontario (Ottawa) an appeal to the Divisional Court will take a least a year if not a year and a half to be heard. There are numerous instances where the appeal will take much longer to be heard. The most important thing to understand in relation to appeals is that the time line is driven by the landlord and the tenant. The Court itself does very little to move the case along and in fact will allow an appeal to sit idle for over a year before making the slightest inquiry into the intentions of the parties.
Often, I am approached by landlords who advise that they have been waiting for the Court to send them a Notice of Hearing (like the Board process). They are surprised to learn that because the tenant has done nothing other than file a Notice of Appeal that the case is not on any trial list and that it will never be scheduled for a hearing. The Rules require a tenant to take certain steps in relation to an appeal in order to "Perfect it" and to set it down for hearing. Technically, this is supposed to be done within 30 days of filing the appeal. However, there is absolutely no penalty for not doing so and in fact an appellant can Perfect the appeal at any time prior to the appeal being dismissed for delay.
Landlords (respondents to appeals) need to force the appellant tenants to comply with the timelines in the Rules of Civil Procedure. If the timelines are not met the landlord should bring a motion to the Divisional Court to dismiss the appeal for delay. In other instances, when it is clear that the appeal is a complete fiction (no merit and just a strategic delay) it is also possible to bring a motion to dismiss the appeal as being frivolous and vexatious or alternatively for an order lifting the Stay that prevents the eviction of the tenant pursuant to the Board's order. Also, if the tenant has stopped paying rent or is behaving in a way that is inconsistent with the tenancy a respondent can bring a motion requiring payment of ongoing rent or other interlocutory relief (i.e. orders requiring the tenant to do certain things or stop doing certain things pending the hearing of the appeal).
The over-all point of this blog today is to high light the fact that Appeals to the Divisional Court are very tricky and time consuming. A non-lawyer who does not understand the process is most certainly going to make mistakes in the appeal process that will likely be harmful to their interests. Appeals require specialized knowledge and a background in Court procedures. To simply "wait" for the case to resolve itself will mean waiting for a very long time for the Court's process to eventually dismiss the appeal for delay. In the interim, if the landlord has done nothing, the entire point of the application and Order from the Landlord and Tenant Board will be subverted by the procedural delays caused by the Appeal process.
Michael K. E. Thiele
QTMG LLP
Ottawa, Ontario
Lawyers
Tuesday, 2 July 2013
52 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.
The content of this article and any responses to comments are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Subscribe to:
Post Comments (Atom)
How does one go about filing an appeal?
ReplyDeleteAn appeal is filed by preparing a document called a Notice of Appeal as well as a Certificate Respecting Evidence. The Notice of Appeal and the Certificate Respecting Evidence are first served on the respondent (i.e. the landlord or the tenant who is on the other side of the appeal). You also serve a copy of these documents on the Landlord and Tenant Board as they are entitled to be heard on the appeal. You then prepare an affidavit of service providing delivery of these documents. Only then do you go to the Court and file the Appeal documents with the Divisional Court---this may strike you as backwards as the normal process is to file with the court and then serve--but indeed appeals are commenced by serving and then filing with the Court. For the details of the contents of the Notice of Appeal (there are technical requirements) you should start by looking at Rule 61 of the Rules of Civil Procedure--note that the Rule numbers general correspond to form numbers. Hence your Notice of Appeal is Form 61A--which corresponds to Rule 61. A google search will find the rules and links to the appeal forms.
DeleteIf tenant is using legal aid to appeal in Division Court, can Land load fill a motion for security of cost under rule of Civil Procedure rule 56? Thank you.
DeleteFrank:
DeleteA motion for security for costs may be brought. However grounding such a motion solely on the fact that the tenant has a legal aid certificate is not going to satisfy the Court that an order for security should issue. You have much better options than such a motion .
Michael K. E. Thiele
www.ottawalawyers.com
I think this is really a very nice post.
ReplyDeleteHow much would it typically cost to have a lawyer draw up a Notice of Appeal?
ReplyDelete"Typical" is difficult to apply in the circumstances. Charges are higher in some locations than others and the hourly rates of the lawyer drafting will also be different. What I can say is that I often draft a Notice of Appeal, Certificate Respecting Evidence, Affidavit of Service, and a letter enclosing the Notice of Appeal and Certificate Respecting Evidence in about one hour. The content/framework of the Notice of Appeal is determined by speaking with the client beforehand and reading the Order being appealed. Sometimes the grounds of appeal are exceedingly obvious (therefore less time needed), sometimes the Order appears bullet proof--more time needed.
DeleteThe shorter answer to your question is about 1 to 1.5 hours of lawyer time to prepare the Notice of Appeal. The exact amount depends on the lawyers hourly rate--plus taxes of course.
The real work happens after the Notice of Appeal is "delivered" which under the Ontario Rules of Civil Procedure means served and then filed on both the landlord or tenant and the Ontario Landlord and Tenant Board. A Notice of Appeal is generally required to be served within 30 days of the date of the decision. Hence, there is not usually time to review everything that is necessary to properly frame the Appeal. As a result, the first Notice of Appeal is often just the broad strokes of the thrust of the appeal. The Notice of Appeal may be amended, restructured, fleshed out---up until the Appeal is perfected. Under the Rules, an Appeal is to be perfected 30 days after the Notice of Appeal has been filed---often however, additional time may be obtained if there are issues with getting the necessary materials (for instance---transcripts of the proceedings).
The cost of completing the Notice of Appeal and finalizing all of the paperwork is very high. I typically take about 3 to 4 solid days of time (24 to 32 hours) to finalize the Notice of Appeal, prepare the appeal book, factum, certificate of perfection etc.. This will include reviewing the transcripts, finding the useful parts, legal research etc.. This block of time is in addition to the time spent in getting all of the necessary materials and having arranged from the transcript and meetings with the client (the necessary materials include attending at the Landlord and Tenant Board to review the "record" and getting a copy of the entire record for the Appeal Book (a required step). You could perhaps add about 5 hours of time in the miscellaneous category for things that need to be done---an example of that would be dealing with counsel for the Landlord and Tenant Board who will write to me after the Notice of Appeal has been filed or communicating with the lawyer for the respondent in the appeal or sometimes the respondent directly.
The Appeal hearing is generally a fairly efficient process once it is scheduled to be heard. The Divisional Court, in my experience, is very well prepared and the Judges (3 of them) have in my experience always read the materials and considered the filed materials before the hearing starts. So, for the hearing itself add, perhaps, a total of 3 hours.
So, from a time perspective---for a complete appeal, it is reasonable enough that you lawyer would spend about 50 hours on the Appeal (so cost will equal 50 hours x hourly rate, plus HST, plus disbursements). A complicated Appeal will be much more--a straightforward appeal maybe a little less.
Hope that helps you estimate what you are facing. Appeals are very expensive and technical and in my experience they do not tend to settle as one of the parties is hanging on to an Order that they are generally happy with---so expect to go through with the appeal. That being said, it is not unusual for an Appeal to the Divisional Court to become moot because the tenancy ends for other reasons before the Appeal can be scheduled and heard.
Michael K. E. Thiele
What can I do in this situation?
ReplyDeleteHi Camelia---I'll need some detail.
DeleteHi Micheal,
ReplyDeleteI am currently renting my basement to an individual who has not paid rent for part of November and the month of December.
I have given him 2 written notices which he has not followed.
I would like to kick him out of my house but I would also like to get the money he owes me.
How abouts do I go with this?
Thanks,
Jo
Ho
Hi Jo: It isn't clear from your question whether you are renting a basement apartment to someone or if they are living with you and sharing a kitchen and/or bath with you. The first thing to figure out is whether the Residential Tenancies Act applies or not. If you share a kitchen or bath with the person then it is likely that the RTA does not apply. If the unit is separate, like an apartment, then you will have to follow the Residential Tenancies Act and serve the tenant with an N4 (Notice of Termination for Non-Payment of Rent) form. IF you go to the Landlord and Tenant Board website, lookup landlord applications, and the N4 form. There is a guide that helps you with the steps to fill out the form and how to follow through on the process.
DeleteIf the RTA does not apply then the Landlord and Tenant Board can't help you. The only processes are to ask the person to leave, if they refuse, call the police to ask them to remove the person, and if the police won't do it then you would have to file with the Court's for a writ of possession. As for your rent, if this is not covered by the RTA then you would have to sue the person in the small claims court to get a judgment.
Good luck.
Michael K. E. Thiele
Thanks so much Michael
ReplyDeleteHi Michael,
ReplyDeleteMy tenant owe me few month rents and finally he agreed to move out and signed N-11 to terminate the tenancy on 15th Nov. He did not move out and I applied for ex-parte eviction order which was issued by Toronto LTB. Tenant filed motion to set-a-side the order to allow him to stay up to 31st Jan, 2015 and LTB scheduled a hearing on 11th Dec. On the day of hearing under the mediation, he requested to terminate the lease from 31st Jan which I agreed. He approached for mediation and I agreed. At the mediation we mutually agreed to shift termination date to 31st Jan upon his request. LTB issued new order on 15th Dec that tenant will pay all dues within 31st Jan and his move out date also is 31st Jan, 2015. If does not move out I can apply for eviction enforcement with sheriff.
My question is, since he requested board to allow him to stay upto 31st Jan 2015 and I agreed with him. Can he file appeal to divisional court against LTB eviction order as the new termination date was set out upon his request and to extend till 31st Jan, 2015 ? Does he has any legal ground to appeal on such merit?
Hi: The answer to this question, ultimately, is not in the Residential Tenancies Act but in the Courts of Justice Act. If you review the RTA you will see at section 210 the Appeal authority to the Divisional Court on a question of law alone. Section 210 seems silent on the issue of the Order being a consent order and in fact seems to be worded in a manner that would indeed allow your tenant to appeal the consent order to the Divisional Court (and hence get an automatic stay of proceedings until the appeal is dealt with or you bring a motion to lift the stay/quash the appeal).
DeleteHowever, as I tell many of my clients, there is a great value in entering into consent orders as the consent restricts the right of appeal. If you can avoid having to deal with an appeal, even one that is filed for nuisance purposes, that is of great value. A "consent" helps you avoid frivolous appeals. This arises under section 133 of the Courts of Justice Act. This section stipulates that NO APPEAL LIES WITHOUT LEAVE OF THE COURT TO WHICH THE APPEAL IS TO BE TAKEN (A) FROM AND ORDER MADE WITH THE CONSENT OF THE PARTIES.
Hence, my argument goes, and I do think it is correct, that if you enter into a consent order with your tenant the tenant is not permitted to appeal that order without first getting permission from the Divisional Court to allow the appeal to proceed. In the mean time, the underlying order and the eviction remains in force (i.e. no automatic stay).
Getting leave will be difficult and hence it is quite unlikely that you have any real cause for worry that an appeal will happen. Of course, nothing is ever guaranteed in law but this is likely as close as you're going to get to a guarantee.
Best of luck
Michael K. E. Thiele
Thanks Michael for your expert opinion.. That's what I thought when I entered with him a consent under LTB mediation. Coz, I did not want him to leave any scope to file an appeal and longer his stays.. I am hopeful tenant will move out by 31st Jan.
DeleteRegards.. Rahman
Hi just a question about my rights. My ex gf and I lived together with my daughter for 4 years. She kicked me out a month ago and claimed I never lived there i was a visitor after an argument. I left as to not cause a scene. I asked for the lease copy from her and she sent me a copy and I didn't sign the lease however the part with proof of income has her E. I. Benefits and my old jobs company name and income listed in there. Do I have any rights that I lived there all my belongings are still there also.
ReplyDeleteHi: Your question begins to mix different areas of law. Having lived with a girlfriend, though with a child for an extended period of time, raises family law issues--common law and child support and perhaps some property claims. I can't and won't address any rights that you or your child might have in that context. Family law is a complicated area of law that you should really consult a family law lawyer on.
DeleteThis blog deals with Residential Landlord and Tenant law issues. Whether you have any rights under the Residential Tenancies Act first requires a determination of whether or not you are a tenant. Not having signed the lease is a strike against you in being considered a tenant. However, there are lots of other ways that you might be considered a tenant. The information that you point out being provided on the rental application is a very good indication that you were being considered a tenant. Other factors include paying the rent, how the landlord treated you, whether you could give instructions to the landlord, etc..
You may find that the landlord does in fact consider you a tenant in the rental premises, notwithstanding that you did not sign the lease. The landlord would normally be inclined to see you as a tenant as that makes you responsible for rent, for damage, and all tenant responsibilities in the rental unit. If you are not legally a tenant then the landlord can only go after your girlfriend for rent, damage, etc..
Establishing that you are a "tenant" as defined under the Residential Tenancies Act does not give rise to any special rights as between you and your ex-girlfriend. The Residential Tenancies Act governs the relationship between the landlord and the tenant and NOT the relationship between two tenants. Certainly, if you are a tenant the landlord can't legally exclude you from the premises. If you are not a tenant the landlord can remove you as a trespasser and have you charged. However, being a tenant does not mean that you will have an easy time of occupying the rental unit if your co-tenant and ex-girlfriend also occupies the rental unit. If the situation is volatile you may find criminal code laws applying in the event of an assault, restraining orders, etc.. Just being a tenant under the Residential Tenancies Act is not going to "protect" you if your ex-girlfriend makes real or frivolous allegations against you.
If you are concerned about getting your property out of the rental unit you should consult with a family law lawyer who can either help you or refer you to someone who can make the demand for the delivery of your property to your ex-girlfriend and failing which commence a Court action for the return of your property.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, I took your advice and filed an a1 form with the landlord tenant board. When it came to moving day, I kind of pack some boxes and did a little bit of cleaning... But really I didn't do a whole lot other than sit in my room and listen to music. no one had not received a notice for the tribunal yet. So at 7 o'clock on aug 1st, he knocked on my bedroom door and asked me where I was moving to... I replied, "moving? What do you mean, moving..." He said" I gave you two months notice and I told you you need to be out today". I told him I look for a place , but I never found one that fit my criteria, sorry! Preceded by stopping down the stairs and he began to throw my stuff into the backyard.. I said hey what the hell do you think you're doing you're not allowed to do that, and it's going to look really stupid when we go to the tribunal...! He said what tribunal... Explain to him how I filed and I showed him all the paperwork I had turned in for the hearing...
ReplyDeleteWell that set him into a tempter tantrum to which I didn't feel the need to watch. So I went back to my room and began rearranging my room. I noticed he was retrieving the stuff he had tossed in the backyard. So couple days went by and he told me that he decided that he was going to let me stay here since I had a hard time finding somewhere else to live. I said that I was still going to have the tribunal unless he put me on the lease.. Well if that happened yesterday.. So I am officially equal to my roommate. And he has no right asking me to leave.
Thank you !
Hello,
ReplyDeleteI have a girl living with me in my mothers house. We share a bathroom and kitchen. Her rent has been late every month and she has only lived here for about 3 months. I sent her a final eviction warning saying if she didn't pay she would be evicted on the 16th. She still hasn't paid. She smokes weed in the garage and on two occasions her friends have emailed me saying she was trying to kill herself in the house. She is now saying if I want to evict her I need to give her a "legal N4"
She constantly has new men over almost every night (which puts me in danger if any of them are dangerous)
Is there anything I can do? I have told her I want her out by this Sunday
Hi Shannon: The first question always is whether the Residential Tenancies Act applies to the relationship between the occupants and the landlord. The girl who is living with you has demanded a form (N4) which is a form that is served under the Residential Tenancies Act. This means that she thinks she has the protection of this law. Based on the information you have provided to me in your comment I'll point out section 5(i) of the Residential Tenancies Act. It states: The Act does not apply with respect to, ... (i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;
DeleteIf this exemption applies to your facts then your roommate does not have the protection of the Residential Tenancies Act as it does not apply. This means that you would not give her an N4 nor any other notice under the RTA. Because this is not a covered tenancy the roommate has far fewer rights and much less security of tenure.
Presuming reasonable behavior, you could in theory simply lock out the roommate. She has no right to occupy the premises under the RTA. Her presence in the house is pursuant to a contract which you may terminate in accordance with the terms. In the absence of terms for terminating the relationship "reasonableness" will be the key to determining whether you have treated her fairly.
Unfortunately, the lack of a statutory framework for dealing with people who are not covered by the RTA creates uncertainty. You may wish to retain a lawyer to help you through this and certainly be ready for police involvement if you exclude her and she tries to get back into the home. If she doesn't leave voluntarily see if the police will help you remove her. Otherwise, you are perhaps looking at getting a Court order.
Good luck
Michael K .E. Thiele
www.ottawalawyers.
Hi! I'm currently renting an apartment I am a stay at home mom if a 8 year old my husband works and has worked full time since old enough to work. Unfortunately he had a run in with the tax people and we owed back tax so they were garnishing his wages 30% in that time I've been trying to figure d work and had no luck. Between my sons medication and the car to get him to and from work as he works three different shift changing each week it is not possible for public transit. We have fallen behind d 2 months rent we went to a hearing and we we very realistic about what we could afford if granted no eviction the hearing was a week away from. The first when rent for the month was die we stayed that we wouldn't have the rent for that month that itbe added to our arrears or have the order start the first if the following mobth where we would pay 2 mibths and be back on track with lawful rent. He heard both sides and have a order and we could stay and gave us a date to have the arrears paid off and on hat lawful rent must be paid starting 2 days after we received the order. So we feel like we were given chance but not as we said we wouldn't be able to have the months rent on time that month as it was a week away from the hearing date. So of course we didn't have it so the order wasent followed sonim goi g to make an appeal as i have no family no where to go and a little boy that has strong ties to this community.I just found d a job recently and the garnishment is over this week? I have left a message for my landlord hoping he can listen and understand as we also told him at the hearing while we pled to make a deal that we needed to the following month to start lawful rent and we would both both months and it went u der heard I thought if I was realistic we would get the realistic answers. Please tell if u think I'm going to have a chance . I don't. Want to proli g this I just want a fair chance as we are normal working people who just fell in a hole and are desperate for a break. And II feel like j was set up to be let down with the speakers decision.
ReplyDeleteSorry for the rant but Im. Scared and need some advice. Thanks in advance
Lb
Hi! I'm currently renting an apartment I am a stay at home mom if a 8 year old my husband works and has worked full time since old enough to work. Unfortunately he had a run in with the tax people and we owed back tax so they were garnishing his wages 30% in that time I've been trying to figure d work and had no luck. Between my sons medication and the car to get him to and from work as he works three different shift changing each week it is not possible for public transit. We have fallen behind d 2 months rent we went to a hearing and we we very realistic about what we could afford if granted no eviction the hearing was a week away from. The first when rent for the month was die we stayed that we wouldn't have the rent for that month that itbe added to our arrears or have the order start the first if the following mobth where we would pay 2 mibths and be back on track with lawful rent. He heard both sides and have a order and we could stay and gave us a date to have the arrears paid off and on hat lawful rent must be paid starting 2 days after we received the order. So we feel like we were given chance but not as we said we wouldn't be able to have the months rent on time that month as it was a week away from the hearing date. So of course we didn't have it so the order wasent followed sonim goi g to make an appeal as i have no family no where to go and a little boy that has strong ties to this community.I just found d a job recently and the garnishment is over this week? I have left a message for my landlord hoping he can listen and understand as we also told him at the hearing while we pled to make a deal that we needed to the following month to start lawful rent and we would both both months and it went u der heard I thought if I was realistic we would get the realistic answers. Please tell if u think I'm going to have a chance . I don't. Want to proli g this I just want a fair chance as we are normal working people who just fell in a hole and are desperate for a break. And II feel like j was set up to be let down with the speakers decision.
ReplyDeleteSorry for the rant but Im. Scared and need some advice. Thanks in advance
Lb
Hi: It is a bit difficult to make out the exact circumstances of your story. As I understand it, you were two months in arrears of rent. You went to a hearing, told the adjudicator your story and made a pitch for a payment plan. The adjudicator either didn't understand you, or didn't accept the payment plan that you proposed. In any event, the adjudicator made an order that required you to pay the full rent due on the following month and further gave you a date to pay off the arrears.
DeleteUnfortunately, it is very difficult to tell what kind of order you received from the Board. Frankly, it sounds like a straightforward "standard" order--meaning no exercise of discretion in your favour. To comment properly I would have to see the order.
If the landlord does not play ball with you---i.e. doesn't wait and doesn't negotiate, you have some limited rights to void the order before the sheriff shows up (if this is the first time). This makes it worthwhile to see if you can get any emergency support from an social services agencies around including the town/city/township that you are in. If there is a community legal clinic nearby they can usually refer you to local resources that can help pay the rent arrears. The Salvation Army often has a rent bank where they lend/give money to tenants in a tough spot. Not sure if your husband can get an advance, borrow money etc.. Do you attend any Church or are you members of any organizations that will support members in times of difficulty. This would be the time to reach out to those organizations for a helping hand. Even though you have missed a date in the Order there is a right to pay the entire arrears once after the enforcement date in an Order and still void it.
If getting the money to pay the arrears in full simply can't happen then you can consider requesting a review of the Order. This is similar to an appeal. Whether you have grounds for an appeal or a review is something that can only be answered by seeing the Order--i.e. I can't say whether you have a chance or not without seeing the order.
A ground for review or appeal might be whether the member consider the section 83 grounds for relief. It doesn't sound like much discretion was exercised. Perhaps the Member decided against granting you time and hence chose not to exercise discretion in your favour. However, if the section 83 grounds we not considered then that can indeed be a reviewable and appealable error.
It is best to retain a lawyer if you can. As money is tight you would probably want to attend at a free clinic which I hope you have somewhere near you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
HI Michael,
ReplyDeleteI am a landlord and like many other struggling with getting my tenant out of my place for unpaid rent.. I have followed complete process and so far below is status of my process:
1) N4 Issued and L1 filled following failure to comply
2) Hearing schedule and attend by both parties
3) LTB gave decision to tenant to payup or get evicted
4) Tenant did not pay and so I filled with Sherrif to get eviction done
5) Tenant brought motion to set aside eviction - got hearing
6) Hearing done, tenant still had o/s rent so motion was denied
6) I took new order to Sherrif's office now have to wait till the date given by sherrif
8) I have just over 2 week before my tenant get evicted
My question is: Do you think, Do you think my tenant can obtain a stay on eviction in next 2 weeks from divisional court or can they stop eviction ?
Thanks
Adam
Hi Adam: In relation to Ontario Landlord and Tenant Law nothing is a certainty until the event actually happens. It is possible for your tenant to obtain a stay, still, but it becomes increasingly unlikely and expensive. Your tenant may appeal to the Divisional Court within 30 days of the date of the Order. If he does that then there is an automatic stay of the Order. You would then bring a motion to lift the stay, quash the appeal, or for an order requiring rent to be paid pending the appeal. All of this would certainly stretch out the time. If you are faced with a Divisional Court Appeal be aware that the appeals process requires the parties to move the matter forward. The Court will do very little for at least a year or so or more to deal with the appeal.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks Michael, Appreciate your quick response...
DeleteThanks
Adam
HI Michael,
DeleteIf I needed a lawyer to represent me, would you be able to take my case.. I am located in East GTA.
If you can't would you be able to refer me to a lawyer here in East GTA.
Thanks
Adam
How does a landlord, who filed to have a tenant evicted for personal use of unit due to it was the only one to accommodate his disabilities, but lost, file for a stay?
ReplyDeleteHi: Unless there is something strangely unique about your case I can't think of any reason why you (a landlord) would seek a stay of the Order. If you meant that the tenant lost and is being evicted then you apply for a stay in the context of a Request to Review of the decision terminating the tenancy and evicting the tenant. You will see in the Request to Review form a section asking if you are also seeking a stay. If the Request to Review is denied or you decide to appeal instead (presuming you are the tenant) then a stay is automatic if there is an appeal to the Divisional Court within the time required by the Rules of Civil Procedure.
DeleteIf you are the landlord and your application was dismissed then you may consider a Request to Review or an Appeal to the Divisional Court within the time allowed by the Rules (generally action is required within 30 days of the date of the decision that is to be reviewed or appealed). A landlord typically would not seek a stay of a dismissal in the Review process or the Appeal process as the dismissal of the application simply results in the status quo which would effectively be what the stay would grant you.
Michael K. E. Thiele
www.ottawalawyers.com
I filed a Notice of Appeal, certificate respecting evidence and affidavit of service with divisional court. I also requested a transcript of the hearing from the LTB and filed that certificate of request with the divisional court. Since then, I received a 2 page letter from the LTB and contained within that I was requested to let them know what evidence I had. I am in a legal process now and it also very clearly stated within that Notice of Appeal how the board member erred in law; very clearly and succinctly. My question is what happens next with the Respondent? I'm assuming they must respond to the court within a certain timeframe. From this point forward is the proper legal process in responding to my appeal, (by the defendant or the LTB- affected party) done through the divisional court and if so how?
ReplyDeleteHI: A letter from the Board asking what evidence you have is an odd request that I have never heard before. There is typically a letter from the LTB after the filing of an appeal advising that they have a right to be heard on an appeal and that you must serve them with copies of all of your materials. If you have something other than the typical letter I would have to see it to comment. As you are now in the Appeal process you need to ensure that you follow the Rules of Civil Procedure. Serving an filing the materials you have produced is only the first step. You must still proceed to "perfect" the appeal. Note the timelines in the Rules of Civil Procedure for doing so. You should not expect to receive a transcript from the LTB. The LTB will provide you with an audio recording (for a small fee) and it is up to you to have the recording properly transcribed--I presume you indicated on your Certificate Respecting Evidence that the transcript is required. You can always retain a Court Reporting service to prepare the transcript as they have the skills to prepare one. When you get the CD from the Board consider listening to it and finding the time indexes for your case---otherwise the Court reporter will transcribe the entire CD at significant cost.
DeleteThe respondent's materials will not be due as quickly as you think. Check the Rules of Civil Procedure on what you can expect. Please note that unless you take steps to perfect your appeal that you may face a motion from the respondent to dismiss the appeal for delay and possibly other remedies depending on what is at stake.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am a landlord and since my tenant stopped paying the rent, I got the eviction order. I filed for eviction with the sheriff's office and the same day in the evening I got a notice of appeal from the tenant's lawyer. My question is how the Sheriff's office will know that the eviction order is stayed?
Hi: In the normal course, a tenant--especially when represented by counsel, will make sure that the Sheriff is aware that a Notice of Appeal has been served and filed. The tenant's counsel may also have requested the registrar to issue a Certificate of Stay but that is not always done. If the appeal was filed within time and you are satisfied that the Order is properly appealed and that the automatic stay under the Rules of Civil Procedure (and SPPA) applies then you should also inform the sheriff (Court Enforcement Office) of the stay. Please be aware that the mere filing of a Notice of Appeal and Certificate Respecting evidence will not move the matter forward in a timely manner. If the tenant is inclined to be happy with a long delay with nothing happening then you should immediately consult a lawyer to bring a motion to dismiss the appeal or alternatively have the rent paid pending the appeal. If you do nothing then the appeal will sit idle for a very very long time.
DeleteGood luck
Michael Thiele
www.ottawalawyers.com
Hello Michael. I find myself with a disturbing situation on hand since last Friday. I have rented a room to a woman who was an acquaintance of my son for the past three years. I rented the whole house from the owner myself over 5 years ago. She shares my kitchen and the bathrooms and I know she is not covered under the RTA. At various and Sundry times I have had other people remain there as well but for the last couple of years it has the only been her and me. This past weekend my son asked me if I would rent a room to a mutual friend whose accommodation Arrangement had suddenly fallen through at the last moment. I said yes, we negotiated the rent and the time frame, and he moved in Friday night. I told the woman that he was arriving and she said that she eas actually quite pleasedvas he was also a friend of hers and I knew that. Several hours later around 8:30 Friday evening I received a series of bizarre texts from her. She stated that she had decided I was not allowed to make a profit, it bothered her (!) and that as my son had been stupid enough to tell her how much I was paying LOL she was taking that, dividing it into thirds, and that was what she would pay from now on. So she took the rent from 550 per month that she has paid for the last three years through direct deposit so I have the records, to $250. She also admitted in the text exchange that she was paying $550 per month. Now I need to know what to do if we get to the end of the month and she only pays me $250? Can I evict her? In our text Exchange, I outlined what our Arrangement has been from the beginning, and asked her point-blank, are you no longer happy with that? She did not answer. My thinking was a no would indicate that she was going to move out at the end of the month, and a yes would allow things to continue as they have already been. I should add I have PTSD and this stress is causing me enormous problems. In the same text Exchange, I told her that I was taking this as her notice for one month from that day which was June the 4th, so for July 5th. She snapped back that she had not given her notice and that was not fine with her and that she had told the landowner she was leaving September 1st or before. I emailed him, and he said she had never contacted him at all. So I am really perturbed by all of this. I feel as though she has quite lost her grip. I don't think she is allowed to decide what the rent is as I am the tenant and she is the roomer especially after 3 years of the rent being the same. I really would like her out of there because I am now frightened of her. The text exchange was not pleasant. She is 41, and I am 63. This is not what I thought I would be dealing with. Thank you for your assessment and any suggestions you might care to advance.
DeleteHI There,
ReplyDeleteSo not sure how this works but we served an eviction and were given vacant possession of the property. The tenants have filed with divisional court. The tenants are telling me that with the certificate from divisional that we have to give them back possession of the unit. Do they do this? Do you know? We are unable to get any clear answers
Thanks Tracy
What if Vacant possession has already been given when the tenants file with divisional court? If it is within the 72 hrs do they get the keys back?
ReplyDeleteThanks
Hi Tracy:
DeleteAn interesting question that I have faced from only a couple of times. There will be different views about how to proceed and all I can tell you is what my client's have done (with my advice). When my client has obtained and eviction Order from the Landlord and Tenant Board I have them file the Order with the Court Enforcement Office/Sheriff. The Sheriff then posts the Notice to Vacate and enforces the Order. If, before the sheriff enforces the order, the tenant files an appeal to the Divisional Court within the Rules of Civil Procedure then an automatic Stay of the eviction order flows from the delivery of the Notice of Appeal. Under the Rules, delivery means served and filed. If no appeal is delivered then the sheriff enforces the eviction order.
An appeal filed after enforcement does not in my opinion void the action of the Sheriff. I see no legal reason to put the tenant back in possession of the rental unit--especially if the basis of the Appeal appears to be frivolous and vexatious and designed only to effect a delay.
In my view, it is reasonable to maintain possession of the rental unit. If the tenants want to argue let them bring a motion to the Divisional Court getting an order putting them back in possession pending the appeal. At the same time, you could bring a cross motion to argue that the appeal is frivolous, vexatious, without merit, or for conditions etc. etc.. This is what I have advised my clients in the past and the effect of the position has been that a settlement was reached. This is an especially strong position to take if it is clear that the appeal is without merit.
Of course, if the appeal has clear merit, or the circumstances for the delay are clear and justice screams for relief--be careful. This is a rather technical area of the law and no longer a typical landlord and tenant matter. You should put all of the facts in front of a lawyer and get specific advice on your case. Matters before the Divisional Court can attract costs awards of thousands of dollars if you are wrong.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I just want to know how the law allows vexatious appeals to tenants who abuse the law. This is fraud and I wonder: could people who have been found to abuse the system multiple times not be brought to charges or have to reimburse the courts through indemnification? Also, how can landlords in ontario petition to change these laws? Is it through writing to the mpp? Please advise
ReplyDeleteHi: The situation respecting appeals is rather complex. You are complaining about certain types of tenants but I can assure you that there are a great number of landlords who are just as bad. The appeal process that currently exists helps those tenants who are being abused by unscrupulous landlords. I do think that the current appeals system could be improved and it could be made much faster. The government consults on changes to the Residential Tenancies Act every few years--in fact we just went through such a process and you can see my submission on changes I though important in another article in this blog. Contacting your MPP is certainly a good way to go to start lobbying on these issues.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
if the sheriff enforces an eviction order giving vacant possession on the 29th day after the order was issued and u deliver the appeal properly on the 30th day does the sherrif have to stop enforcing the order?
ReplyDeleteHi: The facts in your question are a little unclear. If the Sheriff has already enforced the order--i.e. vacant possession has been provided to the landlord, then the work is done. Filing an appeal on the 30th day is a valid appeal as you may file an appeal to the Divisional Court within 30 days of the date of the Order. An automatic stay issues upon the serving and filing of the Appeal. However, the automatic stay does not undo an eviction/enforcement that has already been carried out. That being said, and depending on the circumstances, you might consider an application to try to get reinstated to the rental unit pending the appeal (a difficult task).
DeleteIf by sheriff enforcement you simply meant that the sheriff has posted a Notice to Vacate but has not yet finished the enforcement by delivering vacant to the landlord then the Notice of Appeal, served and filed, before the sheriff comes back to give vacant possession does operate as a stay of the sheriff's notice. This means that you can not be evicted pending the hearing of the appeal or further order of the Divisional Court. With necessary modification this is also true of the an interim order staying the eviction on a Request to Review to the Landlord and Tenant Board.
Michael K.E. Thiele
www.ottawalawyers.com
Hello Sir
ReplyDeleteThanking you for valuable info. I see that you are not in GTA...I live in Markham as we as landlord are facing an experienced tenant who loves to live rent-free and who has appealed the court decision. We need a good and expert lawyer to represent us at divisional court. Any college you can refer us to?!
Regards
yousef
Hi Mr. Savalan: Unfortunately not. There are of course a lot of names but I don't have personal experience with any particular lawyers in your area on Div. Crt. Appeals. If you are having difficult you could call the Lawyer Referral Service of the Law Society of Ontario (though that is basically advertising) . A weird alternative (if you can't get a referral from anyone) is to go to www.canlii.org which is a free legal database. Search in Ontario, use landlord and tenant search terms, you can even limit the scope to Divisional Court. You will find the landlord and tenant appeal cases and the names of the lawyers will be at the top of the decision. If you like how the decision reads try to track down the lawyer by their name. Note, you can search the lawyer's name on the Law Society of Ontario website. Note that this is only a "weird trick" and by no means conclusive of which lawyers practice landlord and tenant law. Not many cases actually get to the appeal level, most cases that are appealed don't ever get heard, and arguably the most effective lawyers get their clients out of Court without the need for a hearing. Nevertheless, it is a starting point if you're stuck.
DeleteGood luck,
Michael K. E. Thiele
www.ottawalawyers.com
I Have an issue... I am being evicted on the 19th, I received the eviction from the LTB today, however we faxed in a request to have both applications, Ours and the landlords heard at a later date, which ours was scheduled for. the LTB replied in email
DeleteJUS-G-MAG-SJTO-SO-ltb
Thu, May 2, 3:23 PM (13 days ago)
to me
Good afternoon,
Both applications have been scheduled together to be heard on June 20, 2019 at 10:00 am in St Catharines.
Regards,
Landlord and Tenant Board
Southern Region
so we did not show up on the 9th, we expected it to be on June 20th,.. Now we have 3 days to pack and move our family of 9....my wife is devastated,.. and kids confused. Please Help!!!Someone!
Hi: I presume that you have confirmed the obvious and that there are only two applications (confirm by checking file numbers). If the email you received from the Board relates to the application that proceeded then of course there is a big mistake here. Not showing up for the 9th is entirely reasonable based on the email you received from the Board.
DeleteThe solution is to firstly file a Request to Review. Point out that you did not have the opportunity to participate (a legal basis for review) because you were told by the LTB via email that the case has been rescheduled, as requested, to June 20, 2019. Ask for a Stay of the Eviction Order as well. You do all of this in the Request to Review form that is provided on the Landlord and Tenant Board website. You can reasonably expect a fast response to filing the Review Request. I'm not familiar with the LTB offices in St Catharines but if it was here in Ottawa you could stand at the counter to file it and highlight the urgency. The counter staff here are excellent and would make sure to get the Review to an adjudicator immediately. I won't say that you'd have your answer in minutes, but certainly within a few hours. This will be important because if the Review hearings granted and a Stay issued the Sheriff will not be able to enforce the Order. Make sure, if the landlord has already filed with the Sheriff, to make sure the Sheriff is informed of the Stay of Eviction pending the review hearing.
Lastly, if the Review is denied then you can consider an Appeal to the Divisional Court. If your explanation of the facts is accurate I'd be shocked if you don't get the Request to Review and hence needing to appeal to the Divisional Court is unlikely. However, if you do need to do that you will likely need the help of a lawyer as the process is not intuitive nor easily figured out.
Michael Thiele
www.ottawalawyers.com
Hi Michael great post here. I just wanted to run something by you I am a tenant. I had a hearing with the LTB yesterday in regards to an early N1 provided by the landlord. 1 issues on the N1 they mentioned to increase rent 7 month into the lease agreement. I signed the lease agreement in April 2017 and they were increasing the rent as of nov 2017. At the time I admit I did not know the RTA law that well. At the hearing I brought this up and the LTB said it was to late to bring up that issue since 12 month has passed under sec 136 and teh n1 is valid. I now understand their point of view but nowhere on the N1 is it stated that you must call the number within 12 months. Can I appeal the descision to the divisional board in regards to section 136 of the rta? Thanks in advanced
ReplyDeleteHi:
DeleteWould you mind advising what kind of hearing you were at at the LTB. Were you the applicant or was the landlord?
The legal question is whether you are prohibited from challenging the lawful rent. The Board appears to have said you are out of time. Is that a correct statement in law? There are time limits and there is a general time limit of 1 year on tenant applications. There are exceptions though. I'd be curious if the N1 provided by the landlord is compliant enough to count as a notice. You might want to read the case of Price v. Turnbull's Grove [cut and paste this link: http://canlii.ca/t/1rpw5] If you can get your head around that case you might find an angle for an appeal or review.
Also, if you are contemplating possible action, I've always been curious about a challenge to lawful rent as a defence (i.e. shield) as opposed to as the basis for a claim such as a rent rebate (i.e. a sword). The time limits in theRTA at speak to tenant's bringing applications--they don't seem to say the same thing about defending say an application for non-payment of rent and challenging the legality of the rent being claimed. That might be an interesting line of analysis if the N1 you received is not compliant as per Price v. Turnbull's and the LTB's only issue with your challenge is the timeliness.
With respect to appeals. Note the time line of 30 days from the date you receive the decision (I like to appeal within 30 days of the date of the decision). While appealing is easy, winning is another matter. To even consider it you need to identify whether the LTB erred in law or not. Anything less and you are unlikely to win and are exposing yourself to a very serious cost award against you (in Div Crt--loser typically pays legal fees of the other side---called "costs", this is typically thousands and thousands of dollars).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am facing a very stresful situation as a landlord. My tenant got evicted as he owes nearly 10K in rent and has not showed up for the LTB hearing. The Sheriff carried out the eviction. Couple of days after the eviction, the tenant tresspassed into the unit and was evectied by the police (RCMP). I waited for 72 hours (after police evection) for the tenant to move his stuff out before I had the movers throw it away.
Now the tenant filed for an Appeal at the Divisional court and got a stay. In the mean time I have listed the unit for rent. What are my options here as a landlord. Can I rent the unit while there is a Stay from the Div.Court. What are next steps in the court. The tenant is also threating to charge me under theft for throwing his stuff away. I am already in debt and not in a position to pay heavy legal fees.
Please Respond.
Thanks,
Praba
Hi Praba:
ReplyDeleteJust wondering where in Ontario you have RCMP trespassing persons from private property? I ask only to ensure that your property is in Ontario.
An appeal to the Divisional Court does not result in a tenant being put back into possession if the Sheriff has already enforced the eviction. That part of the order is spent and the "stay" with respect to the eviction has no effect. The question then is whether the tenant can get an Order putting himself back in possession pending the appeal being heard. As this is not automatic, the tenant would need to bring a motion for this to happen. While the Ontario Landlord and Tenant Board has an apparent process for a tenant to be put back in possession where wrongly evicted, that is not, in my opinion, this case. If the tenant wants back in possession I think the proper venue would be the Superior Court (Divisional Court). Would it be easy to get back into possession? I think not, but ultimately it would depend on the underlying circumstances of the case. Certainly, if the unit remains empty and a motion is brought and a Judge thought the appeal was meritorious and justice demanded that the tenant be restored to possession pending the appeal then a Judge could return the tenant to possession pending the appeal. That being said, I think the likelihood of that is incredibly remote. I recall caselaw (from research a long time ago) that suggests once a Writ of Possession is spent that there is no effective way to overturn that (i.e. getting back into possession is impossible). While that "law" was clear, it does seem to me that there is more flexibility now to restore possession, even if a Writ of Possession has been spent, if justice calls for it. But to be clear, getting back into possession would be a very tough argument to make---after all, you have already won termination and eviction and followed an Order. The validity and value of an Order (and following the rules) comes under serious challenge if it could be simply wiped away.
As you are lawfully in possession of the rental unit (you have the form from the Sheriff), you are free to do as you wish (in my opinion) with respect to renting the unit. I would operate from the presumption that unless there is a Court order saying you can't deal with your property as you wish that you are free to re-rent it.
The Divisional Court appeal is a long, slow, and complicated process. Whether a self represented tenant will actually follow through with the appeal is in my experience doubtful. Simply filing a Notice of Appeal and Certificate Respecting Evidence does nothing to get the case heard. In fact, these two documents may initially be the easiest part of the process. Take a look at the Rules of Civil Procedure to see what the appellant (tenant) must now do. The work is significant. There are timelines for "perfecting" an appeal but unless you force the issue the appeal will languish and nothing will happen. In time, absent the tenant "perfecting" it will be dismissed by the Divisional Court Registrar. Under no circumstance do you get a hearing date for the appeal without a lot more work being done. Only after the appeal has been perfected do you have an obligation or choice to file responding materials. In the mean time, consider filing a Notice of Appearance with the Court so that you establish a right to receive notice of things happening in the file.
Frankly, if you want the appeal to be dealt with, or monitored, consider retaining a lawyer to keep an eye and to bring the relatively simple procedural motions to force the tenant to perfect or face dismissal of the appeal. There are several grounds for such motions--but delay is a good one that can be brought to the Registrar and you would typically get a costs order as well if successful.
The theft threat is simply nonsense. No police officer should take that seriously You dealt with the tenant's property as set out in the RTA. You were entitled to do deal with the property as the law authorizes you to do under the RTA. That being said, the Court will entertain a claim by the tenant (for his personal property) even though you dealt with the property in accordance with the RTA. I've only seen these claims in the Small Claims Court and have never read a really good decision reconciling the RTA authorization to dispose of property and the Small Claims Court application of the law of bailment (which imposes a duty on the holder of the property for the benefit of the owner). This conflict (i.e. risk), is why I advise my landlord clients to never simply throw out all of a tenant's personal property. There are some items that you should preserve and make an effort to return regardless of what the RTA says. These are usually unique items like picture albums, antiques, personal items, medical equipment, medication, and irreplaceable items that often have no market value but lots of sentimental value.
ReplyDeleteThat is about as much as I can comment. Your tenant seems to be playing with you--causing undue stress. While retaining a lawyer might stretch the pocket book, consider it and if you have a local lawyer who is familiar with the RTA and Appeal procedures you might find it worth it for the peace of mind.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteWe are planing to buy house that have tenats with newborn. We would like to enjoy our future property 100% but we were told that if tenats have newborn they can stay even if owner changed. What would be proper steps to enjoy whole house with out tenants? Thanks.
Hi Stan:
DeleteIn Ontario there are no special rules for tenants with newborns. They don't get to stay just because they have had a baby.
The Rules that apply are set out in section 49 of the Residential Tenancies Act. As a purchaser you can require the seller of the house to give you vacant possession of the property on closing. What this means is that the seller will serve the tenant with a Notice of Termination for Purchaser's Own use and the tenant will be required to move out so that you are able to move in when you buy the house. You can structure the purchase of the house in such as way that you do not have to "close" (i.e. complete the purchase) unless you are given vacant possession.
The processes for getting vacant possession and making sure that you are getting what you want starts with the Agreement of Purchase and Sale. Be sure that your real estate agent is very comfortable with and understands the process for getting the seller to deliver vacant possession. If the real estate agent is unsure (or you don't feel like they are perfectly comfortable) it is a great idea to go to your real estate lawyer and ask him/her to review the Agreement of Purchase and Sale BEFORE you sign it and send it to the seller. Explain to the lawyer that you want to make sure you get vacant possession and the seller is required to deliver vacant possession. The clause can be drafted in such a way to allow you maximum flexibility with respect to closing, delaying of closing, etc..
Good luck
Michael K. E. Thiele
www.ottawalawyers.com