Making Ontario Small Claims Court work for you
Often enough I get calls from Landlords who are very upset about the condition of the rental unit that they get back from a tenant who has moved out. Landlords describe apartments where there is writing on the walls, holes punched through drywall, appliances that have been so severely neglected that they are
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Repairs to property, replacing damaged things, cleaning and carting off garbage from a rental unit, after the tenant has vacated, can quickly add up to several thousands of dollars. Can a landlord recover these repair costs?
In short, the only answer to this question is "maybe". Whether or not these costs may be recovered requires consideration of the effort required to get the costs back and the "issues" typically associated with proving the loss.
Typically, by the time landlords are calling me about damage caused by a tenant who has already vacated, they have already tried to get the tenant to pay the damages voluntarily. Not having success in this regard, and having determined that there is no insurance coverage for the loss (note: sometimes there is, so call your broker), the only remaining option is to commence legal proceedings and sue the tenant and any guarantor to the lease.
The legal proceeding to be contemplated is typically a claim in the Ontario Small Claims Court. The small claims court has a financial jurisdiction of $25,000.00. For claims that are over $25,000 but "close" it is possible to waive the excess above $25,000 to fit into the jurisdiction of the Small Claims Court. The alternative, is to sue the tenant in the Superior Court of Justice under the Rules of Civil Procedure under either the simplified or regular Rules.
WHAT IS THE SMALL CLAIMS COURT LIKE?
The small claims court is much more formal than the Landlord and Tenant Board and there is a greater authority to deal with a broader range of claims. Almost the entire scope of the common law, including equity, and all types of damages and remedies are available in the small claims court. The Ontario Small Claims Court has contempt powers and in this sense is a Court of Record that can make orders and judgments that may lead to incarceration of people appearing before it. Proceeding in the Small Claims Court is a serious matter that can give rise to serious judgments involving substantial sums of money by the measure of most people.
Whereas the Landlord and Tenant Board is fill in the blanks "Form" focused), the Small Claims Court allows for more original drafting and requires people to more actively understand and communicate the nature of their claims. While there are still "forms" to fill out, the overall process of the Court is governed by the Small Claims Court Rules which every party before the Court should really be familiar with. While it is possible to go through the process without detailed knowledge of the procedures I think it is a fair comment to say that a litigant who is experienced and who knows the Rules and how the Court works is more likely to have success with the claim.
While the Small Claims Court is more formal than the Landlord and Tenant Board the procedures are still intended to allow for people to represent themselves. It is perfectly allowable for a person to explain the nature of their claim in regular English (or French) and leave the "law" out of it and instead rely on the Small Claims Court Judge to apply the law to the facts as presented to them. When proceeding in this way a plaintiff (person making the claim) is relying on the Judge to know the particular law that applies to the claim and for the Judge to quickly conceive the nuance and different perspectives that a consideration of all of the facts call for. This can be a very tall order for Judges who have multiple cases on their dockets, have to learn complex facts that are not being presented in a the "best" way, while still ensuring that the trial process is procedurally fair. So, while it is entirely acceptable to rely on the Judge to do the "legal" work in a case, it is advantageous to retain a lawyer to represent you.
A lawyer, in representing you in Court, has a few different functions. The function that is not often spoken about is that a lawyer is an "officer of the Court". This function imposes duties on the lawyer that the Court often relies upon in deciding a case. When a party is represented by a lawyer the Judge can focus more on the evidence being presented and worry less about whether the party is leading all of the evidence that they want to lead. A represented party will have the benefit of their lawyer's skill in presenting the essential elements and facts of the case. Aside from the facts, a represented party can take comfort in knowing that their lawyer will have considered the law before the trial and that the evidence presented in Court is the evidence that the Judge needs to apply the law to. Further, where the law is fairly nuances a lawyer can make sure that the Judge understands the law to be applied to the particular facts of the case. Another significant benefit of having a lawyer is that the lawyer will do all the talking, structure the case, decide what witnesses to call, dross examine witnesses, challenge the position of the other side and speak for the party during the course of the hearing---in a way that is helpful to the party's case.
The advantages of having a lawyer should be apparent from the foregoing paragraph. As you may imagine, if the "other side" has a lawyer who is providing this kind of service to the party opposite it would be incumbent on the other side to get a lawyer to balance out the advantage of being represented. That being said, no one is required to be represented by counsel in a Small Claims Court case and you may certainly defend yourself even if the other side has a lawyer.
SETTLEMENT CONFERENCES & TRIALS
An advantage of the Small Claims Court over regular litigation in the Superior Court of Justice is that the process is simplified and that case proceeds more quickly than regular procedure cases. After the exchange of a Claim and Defence the next step in the process (normally) is that a case is scheduled for a settlement conference. The Court will order the parties to disclose their evidence and a witness list along with will say statements (there is a Form) in advance of the Settlement Conference. At the Settlement Conference the Judge will consider both sides, get both sides to explain their positions, and try to mediate a resolution of the claim by pointing out legal issues, problems with the case, and things that might not be obvious to the parties. Settlement Conferences often result in judicially supervised settlements that get the parties out of Court without the needs for a trial.
If a Settlement Conference does not result in a settlement, the Judge at the Settlement Conference may make additional procedural orders and then order that the case may be set down for trial. Sometimes, if there are major procedural issues or evidentiary problems the parties may make a motion to the Court for remedies/relief that are required before the case can go to trial.
TRIALS
Trials in the Small Claims Court are definitely "real". They are adversarial and the parties are most certainly expected to try to "win" their case. It is not a session of getting together to have a discussion, nor is it a time when the Judge will hold your hand through the process doing the work for you. If you are the plaintiff (person bringing the claim), you will be expected to be ready to present your case by making an opening statement, calling and examining witnesses, entering evidence, cross examining witnesses, arguing law, while at the same time staying within the Rules and complying with the Rules of Evidence. It is a mistake to think that the Judge will elicit the evidence by asking questions, making inquiries, calling witnesses, or wait for you to get the evidence that you "left at home". A trial is not a tea party--even in the small claims court. If you fail to discharge your burden (as a plaintiff you have the burden of proof on a balance of probabilities), you might find that after you finish presenting your case that the Judge invites the Defendant to ask for a dismissal of your case without requiring the defendant to lead any evidence at all. A defendant has no obligation to help you get all the facts before the Court nor to assist you in any way. A defendant has the right to make you prove your case before the defendant starts to present his/her defence to your case.
PROPERTY DAMAGE CLAIMS in small claims court
When I am representing landlords in claims for damages to rental units there is a checklist of things that I would ideally love to have ready and available to tender into evidence. This is the list:
- A copy of the tenant's rental application;
- A copy of the tenant's identification (for proper legal spelling of their names);
- A copy of the lease;
- A copy of the rent ledger from the commencement of the tenancy to the end of the tenancy;
- A copy of any Notices of Termination served during the course of the tenancy;
- A copy of any Orders from the Landlord and Tenant Board that were made during the course of the tenancy;
- A copy of any Property Standards Orders or any other orders by any governmental agency affecting the rental unit during the course of the tenancy;
- Pictures of the condition of the rental unit at the time of the tenant moving into the rental unit;
- A Move In Inspection report (with photos is tremendous), that goes through each room of the rental unit that identifies all of the elements of each room (floor, walls, ceiling, doors, baseboards, switches, lights, appliances, etc. etc.). The report should have room for check marks indicating the condition of the individual elements--leave room for written comments---and be initialed by the tenant on at least each page--but even better beside each room. The Move In Inspection report should also mention the condition of the common areas of the building on move in and get the tenant to agree with the description (photos are great).
- A copy of any Notice of Termination, Eviction Order, Sheriff's Notice to Vacate
- A copy of a move out inspection along with photographs of the damage to the unit. Signed off by the tenant if possible. If the tenant is not signing off on the move out inspection then a written statement from a neutral third party who was present at the time that the landlord recovered the unit describing the condition of the unit;
- Three estimates for repair work to the rental unit or to the appliances and systems in the unit;
- A copy of cheques and invoices for the work done in the unit;
- A copy of invoices for replacement appliances etc..
- A copy of a demand letter to the tenant asking the tenant to pay the damages prior to commencing litigation.
If you have the evidence that is represented by the checklist you will find that the need to be represented by a lawyer or paralegal is less important as the flow of these documents tells the story of the tenancy in a chronological way and further demonstrate that the damages claimed result from the actions--negligent or willful conduct of the tenant. However, before deciding to do this yourself, consider the fact that having these documents handy will likely allow a lawyer to quote a block fee for representation that may indeed be substantially contributed to by an award of costs at the end of trial.
IF YOU DON'T HAVE THE CHECKLIST DOCUMENTS
The checklist for me represents the ideal case. Almost no cases are ideal and many of the documents in the checklist are often missing or non-existent. Where the documents do not exist you need to think about how you will get the evidence that is represented by the document on the checklist. Usually this means calling a witness and having the evidence of the "fact" presented orally. With respect to non-contentious issues such evidence is usually not a problem (for example--testifying that there was an oral lease). However, sometimes the oral evidence is highly contentious--for example stating that the rental unit was in perfect condition at the start of the tenancy. When the evidence is disputed, contentious, and pertinent to the ultimate issues in the trial the Judge may have to judge the credibility of witnesses and choose who to believe. Hence, on some points, it may be necessary to call much more evidence in support of your position if the tenant is denying the fact you are asserting as true.
JUDGMENT
The conclusion of the trial will result in Judgment. If you are successful the Court will order that the defendant owes you money, with interest and costs. If you have lost your case it is entirely possible that the Court will order you to pay costs to the defendant.
Sometimes Judgments are paid voluntarily and the case is settled. Sometimes Judgments are appealed and the litigation saga will continue. When the Judgment is neither paid nor appealed then the next step will be to enforce the Judgment through the enforcement provisions in the Rules of the Small Claims Court. These enforcement provisions will include things like garnishment, writ of seizure and sale and debtor's examination.
Whether you have any success in enforcing the Judgment often turns on whether the defendant has any assets. If the tenant has no job, no assets, and no decent prospects, then sometimes, regardless of the "justice" of it all, your judgment will remain unsatisfied and you will get nothing. Sometimes, the result of pursuing the claim to its conclusion is that the defendant will make an assignment in bankruptcy and as a result your claim is wiped out. Whether or not a defendant will have an ability to pay is something that you need to take into consideration before starting out with a lawsuit.
CONCLUSION
Proper vetting of prospective tenants, regular inspections, and active enforcement of your rights under the RTA should keep the number of significant damage claims against former tenants to a minimum. However, it will be impossible to have a perfect record and hence you should take steps to document each tenancy in such a way that proceeding with a damage claim is made easier. The checklist outlined in this article is something that you should turn your mind to at the beginning of every tenancy. It is not a lot of work to gather the evidence in a timely way and certainly it pays off many times over if you have a tenant who does cause problems in the rental unit.
Michael K. E. Thiele
Ottawalawyers.com
Too much work.. Being a landlord shouldn't be so complicated and risky. Tenants that damage units and leave a mess should be charged criminally.
ReplyDeleteWhat if a landlord uses cheap shitty flooring and the couch is to heavy and ends up putting a hole in the floor? How is that the tenants fault
ReplyDeleteHi: Frankly, it isn't the tenant's fault. Prove that the hole arose from cheap flooring and ordinary use and there is no liability.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi, so this is my case.. While cleaning the bathroom in my rented condo, i accidentally dropped a bucket full of water on the ceramic tiled floor. The bathroom closet is not sealed to the floor and there was a gap between the floor and the closet through which water seeped and drained into the condo unit below mine. The condo concierge called in their contractors as an emergency and got the unit below mine's ceiling and floor cleaned and dried (placing fans and heaters in the ceiling). For this emergency service the contractor sent a bill of 2000 CAD and has sent in an estimate of additional charges to get the whole place fixed for 1000 CAD more. My unit owner does not have a house insurance but i have the renter's insurance in my name (Which is only for my belongings in the unit and not for the unit). Irrespective of it, even though i go for the claim through my renters insurance, I am doubtful if my claim to insurance will be accepted since the repair will be done in the unit below mine and not in mine. The Owner is now asking us to pay up for the whole damage (costing 3000 CAD), since he does not have the insurance to claim. People in the unit below are refusing to claim insurance for the damages since it will be on their record if they claim. The owner is threatening to sue me if i do not pay up. I am really not sure if i am legally bound to pay for the damages caused due to an accident. Also, who pays for the court proceedings in cases like these? is it the person who loses the case pays for the whole thing including the damage or is it paid by self for self expenses in the court proceedings. Your suggestion in this case will be of great help.
ReplyDeleteHi: You would be surprised at how many legal issues are contained within your description of the situation. Before trying to sort out the issues, what amounts are payable and by whom (including by the condo, its insurer, the downstairs insurer, your landlord, you, and your insurer), the best option for you is to simply contact your insurer and advise of a claim. You can explain what happened, put the claim forward and they will deal with it. They should provide you with a lawyer and an adjuster and they should pay all of the rightfully owed costs and cover the expenses. This coverage is in your tenants insurance (and good for you for having tenant's insurance!). That you have coverage will likely not smack you in the face when you read the policy. This coverage is just general negligence coverage as the claim is against you for being negligent. Whether you are negligent or not, whether this accident qualifies as being wilfull or negligent is a question for the lawyers to sort out. Also, the landlord's failure to have a properly outfitted bathroom and basically a direct access to the ceiling of the unit below is problematic and likely makes the landlord liable for a least a portion of the costs (because if the bathroom cabinet was properly installed water would have stayed on the floor). One bucket of water on a bathroom floor should not cause $3000 worth of damage. There is something quite suspicious about the amounts and extent of damage alleged. These are things that your insurer can challenge. Also, there will be a question about the need for renovations anyway and whether you should be the one paying for the full costs of a "new" ceiling etc. when the place might have been due for renovations anyway (a concept known as betterment).
DeleteThe case against you could proceed at either the landlord and tenant board or at the Small Claims Court. It will make more sense, I think, to proceed at the Small Claims Court as the landlord's claim against you is contingent on the claim against him. The claim against him can not be adjudicated at the LTB--hence, the small claims court makes more sense if there is going to be litigation. In the event that this gets settled without litigation your insurer will have appointed an adjuster to deal with it. Note that you have a duty to cooperate with your insurer.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I live in an apartment building in Ottawa owned by a corporation and they have been doing repairs to the building as I've been living there. They replaced the windows in my unit in January (originally work was supposed to start in September and be done by December) and asked that everything be moved 4ft away from the windows and have clear walkways for the work men. I did exactly as was specified in the notice (kept notice), to the effect the contractor even commented how well I prepped versus the other units. As the work was going on I left because it was in the middle of winter and they had to tarp the area off and there wasn't much room even if I wanted to stay. I came back when the work was finishing up, began to clean and mop since there was melted snow and debris on the floor and I noticed thin cracks in my wall below the windows, chipped paint, a scratch on the new windows, chewing gum spit out on my balcony, wood chips from the window frame in my bed sheets and as I was hanging my pictures and mirror back up on the wall the whole corner of my mirror was cracked and no longer safe to hang on the wall. I reported the damages to my live in building landlord (recorded the conversation) and she gave me an email of the building manager to contact and send the pictures to (kept the note with building managers info), they sent a "handyman" (live in landlord's boyfriend) to fix the paint but the work was subpar to put it nicely. It's been 2 weeks and still no reply. I decided to contact head office through their site and still no reply. This is not the first time I've had problems with management, I had to complain over the course of 4 months before they gave me a buzzer number for the front door, because I couldn't receive my packages due to the fact I wasn't listed on the directory when I first moved in. I was wondering if you could give me advice on the matter? Also, I do have tenant insurance and have read through the landlord tenant act trying to find if this falls under any of the categories but most seem to be about the landlord's property being damaged. I feel like as a young person I am being taking advantage of and not being taken seriously as a tenant. Thanks in advance for any help or advice you can provide me.
ReplyDeleteHi: If you are comfortable with sorting through the Residential Tenancies Act then let me give you these section numbers to take a look at. Section 20 is the landlord's responsibility to repair, section 22 is the landlord's duty to not substantially interfere with your reasonable enjoyment (i.e wreck your stuff), section 29 is the tenant application that can be filed (file both the T2 and T6 application), section 30(5) is the authority to pay for your damaged stuff as a remedy. Characterize the damage as failed maintenance and also as a breach of quiet enjoyment. Quantify your losses reasonably with receipts, repair estimates, photos as proof of damage, copies of your emails letters complaining.
DeleteThe RTA contemplates you bringing the application T2/T6 as the way to proceed. I'd warn the landlord of your intention to file the application and provide the evidence. Hopefully they will settle without the need for an application.
There is an alternate and more aggressive approach which is to withhold the money from rent and force the landlord to decide whether it will pursue you for unpaid rent or not. If the landlord serves a Notice of Termination for Non-Payment of rent you can decide to pay the withheld rent and void that process. Or, you can let the landlord proceed to the LTB and you can assert your claim via section 82 RTA. This way "saves" you from incurring the application fee initially. How you proceed is up to you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much for the advice! I will read through the sections you mentioned after work today and I will try the first method and if nothing is done, the aggressive method will be my only other option.
DeleteI just wanted to follow up, that the first method seems to have worked (fingers crossed for results) I got a response immediately after sending an email of my intention to go to the landlord tenant board, and quoting pieces of the RTA that you had mentioned above in my email, she said tomorrow she will contact me so we can talk and hopefully have the situation resolved. I just wanted to thank you. I greatly appreciated your advice in this matter, I don't think I would have got a response without your help. Keep up the amazing work.
DeleteSo just looking for advice. As the tenant.
ReplyDeleteSo long story short, in November 2018 we told the landlord we would move out in the middle of the month but use the remainder of the month to clean and make it nice for the next tenants. We have always paid rent early and in full, so rent was paid for the whole month of November. The last week of November she texted us telling us that the new tenants moved in and deadbolted the doors and threw all our stuff out in the rain for us to come pick up. (We had some shelves, cleaning products, outdoor toys, last minute things, etc).
We took her to landlord tenant court (in the beginning of March this year) and we’re ordered to receive one weeks worth of rent back, but because of that, now in the end of June, she is threatening to take us to small claims for ‘damages’.
But we were locked out of the unit before all our things were out so we don’t have any photos proving we didn’t leave damages because we thought we still had over a week to clean, etc.
Hi:
DeleteSo this sounds like some sour grapes on the part of your landlord and now she is being petulant and trying to get one up on you.
Fortunately, I think, as you describe it this will be seen for what it is and you will be able to prove it. I am assuming of course that there is no damage in the unit but that instead her allegations whatever they end up being will be concocted nonsense. In the small claims court your landlord also risks having to pay "costs" if her claim is dismissed (and you, of course have to pay costs if you lose). The risk of costs does not really exist at the Landlord and Tenant Board and hence parties file applications regardless of merit because there is really no financial consequence to filing these specious applications. The Small Claims Court is different and costs are a reality and these do constrain behaviour.
That being said, let's assume that she files a claim anyway. In the face of a claim, you file a defence. You can essentially "tell" your story. I presume you'd say somewhere in your defence/story that you treated the premises as your own, that you paid you rent in full and on time, that you announced your intent of moving reasonably (though notice looks short from your question I assume this was resolved in your LTB application), that you reserved two weeks to clean and get the unit ready for the next tenants and that you were wrongfully excluded from the premises and had your personal property damaged etc.. You would deny causing any damage and that if there is damage it was not caused by you but instead the new tenants or other persons when you were wrongfully excluded from the premises State that any damage that did occur while you were in possession was damage arising from the normal and proper use of the premises and hence constitutes reasonable wear and tear for which no compensation is payable (beyond the rent you paid).
The landlord will need to prove the condition of the property when you moved in. Then she will need to prove the condition of the house when you moved out. Then she will need to prove that any damage in the premises was caused by you (your guests etc.) in a wilful or negligent manner. You have an opportunity to provide explanations or contrary evidence to prevent her from proving the things she needs to prove to win.
DeleteIf the case ends up turning on things like picture hook holes, scuff marks, dirt beyond ordinary cleanliness then you can consider defending on the basis that your two weeks of clean up time would have allowed you to deal with those issues. The argument is attractive in one sense, but also a little too convenient in another. If the claim truly is about minor nonsense it might be a better tack to chalk these items up to ordinary wear and tear if they were caused by you.
Aside from the above, you should also always keep in mind that virtually every thing (wall, floor, flooring, paint on the wall, appliances, ceilings, etc. etc., have a useful life. After a number of years absolutely everything wears out. If there is some damage, caused by you, the landlord does not get to charge you the cost for a new (insert damaged item). In rough terms, you are responsible for the value of the item that was damaged. For instance, a carpet has a useful life (as per the schedule in the regulations to the Residential Tenancies Act--see blog for link) of 10 years. If the carpet was 8 years old by the end of your tenancy then 80% of the carpet had already been used up. You would then be liable for 20% of the cost of a new carpet of similar quality to the original. If you are past the useful life of the thing that is damaged then the liability may indeed be zero. Imagine a 20 year old paint job in the house--the value of that is zero and the walls needed painting anyway--meaning your liability for little knicks, picture hook holes, etc., is likely zero. This being said, the process of these calculations is not scientific. These are rough guidelines and a Judge could increase or decrease or just pick a number that seems fair in the context. The important point is to realize that you don't pay to replace an old broken item with a new one.
Lastly, I'm going to guess that your landlord is raising these issues because she has not yet paid you. Note that no one will enforce the payment requirement for you. If she does not voluntarily send you a cheque then you will need to take enforcement action yourself. You do that through the Small Claims Court (as the Landlord and Tenant Board does not have enforcement powers).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
I'm so confused. My friend is in a furnished apt in Toronto. She used a hairdryer that was already there, which caused a power outage. Now the landlord is charging her $300 to turn the water heater back on. Does she have to pay this?
ReplyDeleteHi Ryan: The short answer is "no" she does not have to pay. The connection between hair-dryer and hot water heater is curious. My guess is that the hairdryer tripped the breaker. The hot water heater must be on the same circuit--which then has me wondering if it is "on demand", gas on demand, electric on demand, ventilated with a motor on top or regular and fashioned style. I ask simply because a tripped breaker (if that is what happened) affecting the hot water tank is odd. Does this happen after power failures too? Basically, more information needed.
DeleteFurther, the hair dryer was left in the unit ("it was already there"). This means the landlord left it there for it to be used--even if it was from the prior tenant. If it wasn't to be used then the landlord would have removed it when you took over the apartment. Seeing as the unit is "furnished" using the hair dryer makes all the sense in the world.
So, in short, no. Your friend is not (on these facts) responsible for the cost of turning the hot water heater back on. [though, I'd be curious how the hair dryer messed up the hot water heater in the first place].
Michael K. E. Thiele
www.ottawalawyers.com
Good day.
ReplyDeleteI am small landlord and I had to go through LTB for unpaid rent,I was agree for mediation and came out with agreement with tenant to move out 31st of August 2019. Agreement was on July 18th 2019 and I still didn't get the decision letter from LTB. What can I do if tenant will not move by 31st of August 2019 and I still won't have the agreement. At the mediation, I have rights to go to Sheriff's office as of September 1st 2019 if tenant will not move. When I went to LTB office and ask about it, clerk told me I can place a complaint letter towards judicater. But it won't help for me to go and get Sheriff to come and evict the tenant. Your help will be appreciated.
Hi:
DeleteThe LTB is significantly backed up so the fact that you don't yet have a decision is not "crazy" late--though it is longer than usual. You can check the status of the decision being issued at this web-link (you need to cut and paste it into your browser).
http://www.sjto.gov.on.ca/ltb/check-file-status/
I presume that because you went to mediation and agreed to termination that you appeared before an adjudicator for a consent Order. Unfortunately, this presumption is not the only possibility. With the delay in the Order coming I wonder if you actually agreed to what you think you agreed to? Is there a written mediated agreement that you signed and the tenant signed? If there is, then you likely did not agree to what you think you agreed to. If there is no written and signed mediated agreement and you only made a joint submission to the adjudicator then the chance is better that the Board is only backed up and the Order is coming.
I find it strange that the counter-staff at the LTB would suggest making a complaint. This makes me wonder again if things aren't exactly as you expect them to be. If your understanding is correct I'd expect a clerk to say they would "look into it" and follow up on the file to see where the Order is. If the file has been misplaced, lost, or put in the wrong place it will be a matter of finding it and simply fixing the error or whatever is causing the delay. Given the timing there is no harm done (yet) as the termination date hasn't arrived. Further, it is possible that your tenant will simply move out and you won't need the Order to take to the Sheriff to enforce eviction.
Given that the clerk is not responding how I would expect, you should perhaps consider hiring a paralegal to sort out the issue for you. If the Order is not issued and your tenant does not move out then something happened that is inconsistent with your expectations. You will probably need an experienced lawyer or paralegal to sort it out for you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy two tenants left the condo apartment with about $2000.00 damages and the apartment filled with cat furry, urine, dander with uncarrable big furniture pieces such as broken tables, bed frames, dirty mattress. One of the tenant left Canada and back to Hong Kong, another still in Ottawa University I believe but other than I have this tenant's China passport and Student ID I don't have any other contact info, any suggest to recover the cost? Appreciated for your suggestion.
Hi: The chances are that this is unrecoverable. However, if you want to "try" the first task I think will be to get a Judgment against the tenants. For the amount in question you would be suing the tenant's in the Small Claims Court. Draft and serve the claim asap. Hopefully, by engaging the Court process the tenants will respond and make arrangements to pay/settle the claim. If they do not respond then you will be in a position to get a default judgment. With a Judgment in hand, the responsibility is yours to try and enforce the Judgment/Order. The Court does not do this for you. There are various enforcement tools available from the Court (ex. garnishment, debtors examination, writ of seizure and sale). However, finding the tenant/defendant and finding their assets to seize is your responsibility. The tools the Court gives you may not be as helpful as you would hope. If the defendants are outside the jurisdiction (i.e. outside Ontario or outside Canada) you would have to try to get the foreign jurisdiction to enforce your Ontario Judgment/Order. I have no idea about Ontario Judgments being enforced in Hong Kong--whether that is possible or what the process is. Perhaps you could inquire at the Chinese Embassy for any suggestions.
DeleteWith respect to enforcing collection of a Judgment the issue of cost will arise. Each of the tools (garnishment, writ of seizure and sale, debtors examination) have associated costs. Relative to the $2000 you are claiming the costs are high. Given that success is not guaranteed you might conclude that you are throwing good money after bad. This will be especially true if the defendants are outside of Ontario. I imagine that you would spend significantly more than the amount of your Judgment if you tried to engage the process to have your Ontario Judgment recognized outside of Ontario. A possible to solution to this could be to find a collection agency who might take your Judgment and charge you a percentage of whatever is recovered.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael!
ReplyDeleteMy landlord came to my building today and broke off the back of my new to me scooter I just bought. In his argument he needed access to a closet my bike was blocking so he moved it, when he did this he didn't use the obvious handles made for manual moment of the scooter and just used the back plastic trunk for a lack of better words to move it which broke the hinges off. If I'm liable for breaking things in my unit shouldn't he be liable for carelessly breaking my personal property. Any advice would be appreciated as I've had nothing but headaches when dealing with this guy. Thanks
ReplyDeleteHi: Could you explain where the scooter was? Was it in your apartment in front of a closet? In a common area outside of your apartment in front of a closet? Was the landlord's need to access the closet an emergency? Were you present when he went to move the scooter and did you supervise him? Was his decision to move the scooter his own decision and did he do that without asking you or saying anything to you?
DeleteThe answers to the above questions might change my opinion. However, if the situation is that the scooter was in your unit; the landlord entered your unit (legally) but without telling you about the need to access the closet; and he went to move the scooter without asking permission and he did it incorrectly---then, I'm comfortable saying that he owes you the reasonable cost of repair.
If your scooter was parked somewhere improperly, was blocking the closet in an emergency, or you were present and supervising the scooter being moved and were just as surprised as the landlord was when it broke then you might share some of the blame (and cost) of a repair.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, my tenant damaged an upper cabinet by placing a toaster too high (this is also a fire hazard), the stove and refrigerator also have rust on them because he hasn't been cleaning them. There is excessive streaks of dirt on all the appliances and cabinets. What is the likelihood of me getting a judgment in my favour for this under the N5?
ReplyDeleteHi: I assume here that you are looking for compensation for damage and that this is not an "ordinary cleanliness" application (section 33 RTA). With respect to damage you need to establish that the tenant caused the damage wilfully or negligently. The mere fact of damage does not mean that the tenant wilfully or negligently caused the damage. A lot of damage to appliances, cupboards, flooring, walls, etc., arise from ordinary use and constitutes ordinary wear and tear. There is no compensation for damage of this sort. If you can establish that the tenant caused damage wilfully or negligently then you are entitled to compensation. However, the extent of the damage will be considered and the full repair or replacement cost is unlikely to be awarded. A tenant will not be ordered to pay to install a new item (cupboard, floor, counter-top, appliance, etc. etc.) if the one that was damaged was not brand new. All if the things in a rental unit--from appliances to flooring to paint--are represented in a useful life chart in the regulations. Nothing in the chart has a useful life of more than 25 years. Useful life that remained in the item that was damaged can be converted to a percentage and that percentage can be used as a guide for making awards. For example, cabinets and counters in bath and kitchen have a useful life of 25 years. If your upper cabinet is 13 years old then over half of the useful life has been used up. If a new cabinet costs $1000 then a position could be that the tenant is responsible for only $500 because he deprived you of the remaining 12 years of useful life on the old cabinet. Of course, the issue is a "like for like" replacement meaning you can't install higher quality that was there and expect the tenant to pay for that. Further, a tenant may argue that the tenancy will continue and that the damage you identify is minor, not warranting replacement and that the "math" should only be done when the tenant goes to vacate. Most adjudicators/judges then use these factors to pick a number that seems "fair". That number, like it or not, will be much less than what the landlord hopes for.
DeleteFor the rust on the appliances I think you will need to prove that the rust is there as a result of the tenant's negligence. Simply saying it is will not be persuasive--I think you will need an expert to make that assertion unless the cause is somehow obvious and well understood---not cleaning them does not intuitively give rise to rust. Unless you have an expert who can explain how the tenant is negligent I think you get zero for this. As for the excessive streaks of dirt I don't see any financial liability. I presume you can simply clean it when the tenant vacates. Presuming that you would clean the unit anyway and if the dirt is a little more than "normal" there is no compensation for this. For a Judge to award damages for excessive dirt the circumstances need to be rather extreme. I have certainly brought such claims for landlords but in this cases the landlord incurred very high cleaning costs, had numerous dump runs throwing out inordinate amounts of garbage, needed to undertake cleaning and treatment that is far beyond the range of "messy" or "untidy". When you say "streaks" this word does not evoke an image of dirt that would result in an award of money for the expense you incur in having it cleaned.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
This comment has been removed by a blog administrator.
DeleteSo what would be your advice to get rid of a bad tenant. I can see if he is willing to sign the n11 but if he doesn't, should I do the n4 or n12? Or is there something else that you recommend?
ReplyDeleteHi: As you learn about the Residential Tenancies Act you quickly discover that getting rid of a tenant you no longer want to rent to is very difficult to do. The Residential Tenancies Act sets out specific grounds for termination, including, 1) non-payment of rent, 2) persistent late payment of rent,3) substantial interference with reasonable enjoyment, 4) interference with a lawful right interest or privilege of the landlord, 4) impaired safety, 5) illegal act. These are the most significant "for cause" grounds of termination--meaning you have the right to terminate the tenancy because of something that the tenant is doing (or not doing). These grounds--described here broadly, incorporate a lot of different kinds of behaviour. Each of the Notices of Termination for the grounds described have different notice periods and different rules. Some of these notices are automatically voidable by the tenant if the behaviour is corrected. Even beyond that, the Board is directed to consider alternatives to eviction in every single case under section 83 of the RTA. The Not for Cause termination provisions are severely limited. A lease does not end at the end of term in Ontario. The lease continues indefinitely on a month to month unless the tenant gives notice or you otherwise lawfully terminate the tenancy for the specific grounds listed in the RTA. "Not for Cause" termination includes: 1) landlord's own use, 2) purchaser's own use, 3) conversion, demolition, repair. Wanting to end the tenancy simply because you don't like someone or no longer feel like being a landlord isn't actually a lawful reason for termination. The Not for Cause grounds are very limited and if used in a way that is inconsistent with the RTA charges can be laid under the Provincial Offences Act and/or the tenant can bring a bad faith application afterwards.
DeleteSo, my advice on how to evict a bad tenant is to focus on the "bad" and determine how that "bad behaviour, conduct, action" violates the RTA. Determine that and serve the appropriate Notice of Termination and proceed to follow through with an application etc.. If your idea of "bad" doesn't mesh with the LTB's idea of "bad" you might just find yourself stuck with the tenant. When you chose to become a residential landlord you entered into an area of business where the law regulates your conduct and makes judgments about conduct that you may very well not agree with. If you find yourself at dramatic odds with what the law allows and your own idea of what the law should be you might want to consider getting out of the Residential Landlord and Tenant law business. If you take matters into your own hands or still attempt to impose your view on the tenants then eventually you will find yourself charged and/or subject to civil judgments for significant sums of money.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael -
ReplyDeleteBless you and this blog! I'm finding great information.
Here is a hypothetical situation I am asking for a friend:
Tenant in a condominium unit had a toilet overflow caused by a fill valve malfunction. They did not know about it when they left for work in the morning, and the landlord received a panicked call from property management just before noon.
Long story short, there is damage to the unit as well as the two units below.
The tenants do not have insurance, although obtaining tenant liability insurance was specified as part of the rental agreement, nor does the landlord. What, if any part of the damages are tenants responsible? Are there any possibilities the landlord can recoup some or all of the costs involved?
Thank you.
Hi: This can play out a few different ways. What will matter greatly is the insurance policy that the condo has in place for the unit owners, the deductible, and what happens to the deductible. For the tenants I don't see any liability so long as it is clear that the fill valve malfunctioned. Presumable the tenants didn't fiddle around with it or cause it to over-flow or malfunction. If this is true then the tenants have no liability because they were not negligent. The owner may have insurance for this. If he does, notify and see what they may do. However, the owner's insurance is likely secondary to the condo corp's insurance that is purchased for the benefit of the owners. The condo's insurance will have a deductible and will cover putting the unit back to the condition of "standard" unit. Improvements beyond the standard unit are likely not covered--hence that might be a matter for the landlord's own insurance to make up the difference.
DeleteThe landlord will likely get the best sense of things by speaking with the property manager. The property manager can advise what the chargeback to the landlord is (usually the deductible), and I have seen the deductible covered by the landlord's personal insurer.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael.
DeleteThe landlord does not have insurance, so they will have to work with the property management to sort everything out. Everyone learned a valuable lesson.
Sending gratitude
Hi Michael,
ReplyDeleteThanks so much for your blog - very insightful. I've read through a couple of your posts (plus comments) regarding maintenance, repair and damages.
I'm currently dealing with a landlord dispute... My partner and I have been tenants in a 1 bdr condo for the past 2 years. In the summer of 2017, our landlord notified us that the bathroom was in need of caulking and that it was our responsibility as tenants to ensure the work was done. I didn't think that it was our responsibility, but did the work anyways since it was minimal effort to do so. We sent the landlord pictures of the complete work which she had no concerns about. On the day that I was doing the caulking, I noticed there was a patch on the wall directly beside the bathtub that seemed to be suffering from some water damage. I took a picture and reported it immediately to the landlord.
She asked that we notify the building property manager. I did, and the building super came to look at the issue, and concluded that it might be from water splashing out while using the shower. We reported this to the landlord and I have been laying out a towel while showering to ensure water didn't flow out from the shower to the wall. There was no official inspection done on by the landlord.
Fast forward to this month - I noticed that the damaged portion of the wall was getting worse. I sent a new picture and emailed the landlord stating that there must be another issue than just simple use of the shower. Again, we were advised to get in touch with the building super. This time they concluded that the unit owner needed to do her own inspection and repair (just concluded that the building was not responsible).
My landlord is blaming me of causing the damage and is stating that the tenant is "responsible for small repairs and maintenance" and threatened the give us notice to move out if we didn't fix it. She also keeps saying that "that's why tenants are required to have insurance". To this day,she has yet to inspect the damage in person (or send a professional) - her real estate agent simply sent a picture of the damage to a contractor who is now saying it might be a result of a leak and require major repair.
I feel that I'm getting a lot of contradicting messages from her, and feel threatened to either do the work, or be forced to leave, or perhaps face a lawsuit.
Can you weigh in with your experience? Perhaps I'm missing part of her viewpoint where I am actually responsible.
Thanks in advance!
11 November 2019 at 18:18
Hi: Thank you for this question as it highlights how many landlords simply do not understand their obligations. For the purposes of this response I will assume that you are not causing the damage to the wall, that you are using the facilities properly, and that you are not being negligent nor wilfully causing the damage.
DeleteIn Ontario the law requires landlords of residential properties to maintain and repair their rental units. This is set out in section 20 of the Residential Tenancies Act. In fact, here is the exact wording of the section:
Landlord’s responsibility to repair
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards. 2006, c. 17, s. 20 (1)
The obligation set out in section 20 can not be shifted to the tenant. There is no ability to make tenants responsible for "small repairs and maintenance". Any lease clause that attempts to shift the responsibility from the landlord to the tenant is void. This is provided for in section 4 RTA and it states as follows:
Provisions conflicting with Act void
4 (1) Subject to subsection 12.1 (11) and section 194, a provision in a tenancy agreement that is inconsistent with this Act or the regulations is void. 2006, c. 17, s. 4; 2017, c. 13, s. 1
You have, by reporting the issue to the landlord, done what you are required to do under the RTA. In fact, you have likely gone above what you are required to do by taking the step to contact building management as this should have been done by the landlord.
You say that you feel threatened to either do the work or be forced to leave. The law supports you and there is no legal basis to evict you for refusing to do work. You can not be forced to do the work and in fact it is likely foolish for you to undertake the work as opening the walls to investigate may reveal ever increasing issues and expense to resolve the problem. If you start the work you might find that it takes $1000s of dollars more to finish and then the landlord will blame you for starting or taking unnecessary steps etc. etc. when you try to recover the cost of repair from her. The landlord can not force you to leave because you refuse to do the work---trying to force you to leave would be entirely contrary to the Residential Tenancies Act and in fact the landlord could be charged in Provincial Offences Court if she forces this issue.
The only legal way that a tenant can be forced out of their home is with a Notice of Termination Form (in a format provided by the Ontario Landlord and Tenant Board), and then with a hearing in front of an adjudicator who decides whether the form is valid and enforceable. And then, only after the adjudicator rules on whether the tenancy is terminated can the landlord ask the Sheriff to enforce eviction. Just because a landlord fills out a Notice of Termination Form means nothing if the LTB does not determine that the Notice is valid and follows through with an Order terminating the tenancy. Hence, your concern that you could be forced to leave, under the circumstances you describe, is not legally possible.
Could you face a lawsuit? The answer to that is always "yes". People can be sued for any kind of nonsense. If your landlord honestly believes what she is telling you then it is possible that she will, in her ignorance, sue you. However, the good news is that she will lose.
Your landlords refusal to do anything and the building managements direction to you to contact the landlord is rather foolish. I presume you are in a condo. The condo should be more concerned about a behind the walls leak or water infiltration as that kind of issue can affect other units and be a problem in the common elements of the building. Being behind a wall can reflect a problem with the common elements and hence it is a condo problem. Of course, no one can know for sure until it is proper investigated.
DeleteFor your own protection it is important that you document reporting the issue to the landlord and to the building management. Emails are great. Describe the problem and ask for it to be addressed. Perhaps you will be ignored--but if so, that is their problem and not yours in the event that the problem becomes significant.
Beyond that, if you want the issue fixed (and why wouldn't you), the Ontario Landlord and Tenant Board gives you a tool for that. It is the T6 application (Tenant's Maintenance Application). You can find the application on the LTB website. The application is self explanatory, tick a few boxes off, ask for an Order requiring the landlord to investigate and fix and if you'd like you can ask for a rent abatement as well. Have pictures available, maybe some video showing the damage and be ready to explain your concern. From what you describe your case would, I think, be a slam dunk. I expect that if you filed the application your landlord would finally get some legal advice and actually do her job. If she maintains her ignorance then the Board will begin the education process for her by ordering her to do the work.
Your other option if you don't want to take the time to do an application at the LTB is to call Property Standards at the City you live in. Contact them to see if they will send out an inspector. That inspector will look at the wall, notice the problem, and order the landlord and likely the condo to address the issue.
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you, Michael, for taking the time to respond and to confirm what my understanding of our rights. I feel more confident in maintaining my position and will definitely keep records of my conversations with the landlord and building management. It's very disappointing that we as tenants need to worry about landlords abusing their position of power or simply not understanding their responsibilities and still threatening tenants.
DeleteAgain, thank you so much for your time and thoughtful response.
Hi Michael,
ReplyDeleteThankyou for your kind work.
In my case, my toilet was not draining properly, so I called building manager he tried to fix but didnot worked out. He called plumber because water was running through a toilet. Plumber try all possible ways to fix like run a snake in it but didnot resolved and he didnot find anything. So he decide change toilet so he did. After 2 days later we recived a letter stating that due to hard object we will be liable to pay all replacement cost. They haven't showed any hard object and who knows it could be from previous tenants?
Second, after I served a notice every weekend they are arranging an open house from 10am-4pm, Saturday and Sunday , Can they allowed this big 6 HR window to show future tenant? I request to make 2 HR but they denied and thrented me with a legal action under $25000 claim court? Is this legal?
Your guidance would be really appreciated.
Thanks
Hi: There are, I think, two separate things going on here that are likely unrelated. The first is the issue with the toilet. If the toilet was blocked or damaged through your negligence then this is a cost that is chargeable to you. The landlord can send you a letter and if you agree that you are responsible the issue can be resolved as simply as that. However, if you disagree and the landlord still wants to insist that you pay (and terminate your tenancy if you don't) then the landlord would typically serve you with a Form N5. That form would allege that you damaged the toilet by negligently putting something into the toilet. The landlord will indeed be required to prove that you caused the damage and certainly evidence from the plumber would be expected. If there are no small children in the house then a typical source of improper objects disappears. There isn't enough information here but ultimately if the landlord can prove, on a balance of probabilities, that you caused the blockage then you will be found liable.
DeleteAs for the entry to show the unit to prospective tenants. You say "I served a notice"--does this mean that you served the landlord a Notice of Termination? Have you ended the lease? If so, then the landlord has much greater latitude for showing the unit and is not technically required to provide 24 hours notice. That being said, reasonableness is still an important factor and you still have a right to quiet enjoyment. While the landlord is permitted to enter without notice the right to do so is not unqualified. Your request for a two hour window and not to just have people wandering around your unit as an "open house" is certainly, in my view, reasonable. The threat of legal action for $25,000 is, quite frankly stupid and may in fact be a threat/harassment that is contrary to the RTA. Your demand for reasonable notice, a reasonable window to show, so that you can enjoy your rental property is certainly no reason to threaten you with a $25,000 lawsuit. While the landlord may sue--he certainly won't (in my opinion) win.
You may file a T2 application against your landlord for the interference with your reasonable enjoyment and the threat to sue you for insisting on your right to quiet enjoyment (section 22 RTA).
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there, thank you for this! I'm a landlord, and I'm a little confused how you say you go straight to small claims, but looking at CL, they seem to be bouncing everything back to LTB.
ReplyDeleteI don't know where I would fall I'm hoping you can steer me in the right direction - my tenant installed a dishwasher and it leaked everywhere. She said she would pay the repairs instead of insurance. What she ended up doing was just laying a new floor on top. This wasn't discovered until after she vacated, but it was so moldy the insurance covered it, but it took three months for repairs. I want to sue her for the deductible and the three months of lost income that I feel I would have had, had the unit been not in such awful shape. Because it's not rent arrears, it would be small claims, wouldn't it? Or because she was previously my tenant when the damages were hidden then we have to file with the LTB?
It's so overly complicated. Fingers crossed you are able to help! Thank you in advance - your blog has been very helpful! :)
Hi: Unfortunately there is too much confusion over forum and jurisdiction when it comes to landlord and tenant issues. There is conflicting caselaw and different treatment as to whether a case must be brought in small claims or at the Landlord and Tenant Board. So, I do acknowledge your statement that there is conflicting CL (Caselaw) and you're not wrong. about that.
DeleteThat being said, in your circumstances there is only one venue that can possible hear your case. That is the Small Claims Court. The reason in your case is simple enough. The Landlord and Tenant Board only has jurisdiction over landlord claims against tenants when tenants are in possession of the rental unit. Once the tenant is out of possession the LTB no longer has the authority to hear a claim by a landlord against a former tenant.
Oddly, the same is not true for tenants who have claims against landlords. The LTB does have jurisdiction to hear a tenant's case against a former landlord even when the tenant has vacated the unit. The reason is simply that the Residential Tenancies Act (RTA) permits it. Whereas the RTA does not allow Landlords to file against tenants once the tenancy has ended and the tenant is out of possession.
Good luck with your claim. While the foregoing is certainly accurate, you may indeed find yourself having to argue the point in Small Claims Court.
Michael K. E. Thiele
www.ottawalawyers.com
Michael - thank you so much for your response and for this blog! :) It's a great and informative resource.
DeleteSorry, what about Kiselman v. Klerer? This seems to be throwing all of that on its ear...
DeleteHi: Kiselman is indeed a problematic decision. It is generally understood to be wrongly decided. I understand that there are moves afoot to resolve the issue and conflicting decisions are soon to come from the LTB when cases are dismissed for reasons contrary to Kiselman. In the mean time it's a bit ugly out there and filing claims has become a bit of an adventure.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
After renting a two bedroom apt I rented out one of the rooms (who is not on the lease). There are now holes punched through drywall from the tenant renting the room, what actions should I take?
ReplyDeleteHi: If I understand correctly, you are the tenant renting a two bedroom apartment from your landlord who owns the property. You are the only tenant on the lease with the landlord. Because it is a two bedroom apartment, and you only needed one bedroom, you decided to take in a roommate to help pay the rent and cover expenses. The roommate damaged the walls in his room (or the roommate's friends or guests might have). What is the legal situation if this is an accurate description of the situation?
DeleteAs the only tenant on the actual lease you are legally responsible for the damage caused by yourself, roommates and guests. Your landlord, when he discovers the damage will probably seek to make you responsible for the damage. The landlord could seek to terminate your tenancy and evict you for the damage plus get an Order requiring you to pay for the damage. If the landlord goes the termination of your tenancy route you can expect to receive a form N5. That Notice of Termination will be voidable if you pay or repair. If you don't pay or repair then the landlord may apply to the Landlord and Tenant Board to evict you and get an Order for the cost of repairs.
The Landlord and Tenant Board has no tools for you to claim against your roommate. From the perspective of the Landlord and Tenant Board you are responsible for the damage and it doesn't matter to the Landlord and Tenant Board that your roommate caused the damage. There is no way for you to sue your roommate at the Landlord and Tenant Board.
If your roommate is a decent sort of person you should raise the issue with him. Ask him to pay to fix the holes. If the roommate isn't a decent sort you will get all kinds of excuses, threats, and avoidance. If this is what happens you have a choice to make.
You can require the roommate to vacate. He is not a tenant under the Residential Tenancies Act (RTA). He can't rent from you, a tenant, and get protection under the RTA because you are not a landlord. This means that you can require him to vacate immediately. How you deal with him is typically based on an objective sense of "reasonable". How much notice do you think is reasonable to give a person who damages the unit and makes no effort and shows no willingness to fix or pay for the damage? In my view reasonable notice is very short. If he won't leave you have the option of calling the police for assistance.
The next thing to consider is whether you sue the roommate in small claims court or not. While the Landlord and Tenant Board won't help you the Small Claims Court does have the power to give you a judgment against the guy. Of course, all of the usual considerations apply. Does you roommate have any assets, money, or a job? Does you roommate have an income that can't be seized by law? Is the cost of repair worth the expense of suing and the time it will take to go through the Small Claims Court process? Punched holes in walls look ugly but with a little skill they're not too difficult to repair and the cost is relatively low--so is it worth it? How you deal with the roommate might depend on what other kinds of damages you think he might do. A few punched holes is one thing. A trashed apartment from other rages is quite another.
Hope that helps.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello,
ReplyDeleteI am a landlord and my tenant is leaving next month. Is it possible to sue him at small claims court before he leaves the house for unpaid rent (which I have an order from LTB already) and damages in the unit while he is living in the unit anticipating the he is leaving in a week? I just don’t know if I can find him and serve him the claim when he leaves.
Hi: This is a loaded and surprisingly contentious issue. The Small Claims Court, often (though not always) views the Landlord and Tenant Board as having exclusive jurisdiction over all things Landlord and Tenant related. Hence, when a landlord brings a claim against a tenant in Small Claims Court the Court is inclined to send the landlord to the Landlord and Tenant Board and either dismiss or stay the Small Claims Court proceeding.
DeleteWhether this position is correct or not is almost besides the point in your situation. The law in relation to jurisdiction at the Landlord and Tenant Board is clear enough that a landlord may only issue an application against a tenant (for any reason) while the tenant is in physical possession of the rental unit. [For readers interested in the statutory basis for this assertion look at section 89 Residential Tenancies Act--that requires the tenant to be in possession when an application against the tenant is issued].
What is interesting in your situation is that if you issue a claim in Small Claims Court while the tenant is in possession the argument is that you are in the wrong place--you should be in the Landlord and Tenant Board. However, it is likely that by the time the issue of being in the "wrong place" comes up (at a settlement conference, pre-trial, or motion) the tenant will have moved out and then it will be clear that it is not legally possible for you to issue an application at the Landlord and Tenant Board--which means that the correct place to be is the Small Claims Court [because you can't issue an application against a tenant who is not in possession at the LTB].
OPTIONS. You could take the shot at issuing a Small Claims Court action, serving it, and know that there may be some flak about the jurisdiction question. I imagine your claim would ultimately be allowed to proceed as dismissing it for no jurisdiction only to result in you issuing a new one again because the tenant is out of possession seems to be an absurdity that shouldn't be allowed to play out.
The other alternative is to issue an L2 application at the LTB. See Part 3 Reason 2 on that form. This is an application for payment for "damage" to the rental unit. If you issue this application before the tenant vacates then the LTB has jurisdiction. The hearing will be after the tenant vacates (simply because it takes that long to schedule a hearing). However, the timing of the hearing doesn't matter for the Board to have jurisdiction---the key is that the tenant is in possession when the application is issued.
I have had clients choose to issue an L2 application shortly before the tenant has vacated. We have claimed the maximum amount of $25,000 (now $35,000) and made broad damage allegations. Once the tenant is out of possession (which is still before the hearing) my clients have gone in, figured out exactly what is damaged and what needs replacing and get the estimates, photos, and needed evidence. All of this is used at the LTB hearing on the L2 application.
Why the LTB instead of the Small Claims Court? It depends on where you are in the province but certainly the LTB has been much faster than the Small Claims Court in many places. Often enough, (and its supposed to be this way) an LTB case from start to finish is often about 6 weeks. Small Claims Court, from start to end of trial, can easily be a year.
There are other differences of course. At the LTB you can't get your legal fees if you're represented. At Small Claims you can get costs. The LTB process is much more informal and the Rules of Evidence are quite lax. The Small Claims Court is much more formal comparatively and you need to respect the Rules of Evidence. Then there are just inherent differences in the type of adjudication and the perspective that the Small Claims Court judges bring to things versus the perspective of adjudicators. I won't say that one is better than the other but they are certainly quite different from one another.
So, you have this option yourself while your tenant is in possession--you could issue an L2 application at the LTB.
DeleteUnfortunately, a small hiccup is likely if you plan to take the LTB route. There was a time that you could simply issue the application (immediately online or in person at the LTB Office). These days, however, the Board is so terribly understaffed that getting an application issued can take weeks. The "issue date" will be as of the date you submitted the application (so no problem there) but the issued application will be mailed to the tenant at the rental unit. If this doesn't happen until after the tenant moves out you are going to have an issue with serving the tenant with the application--getting the tenant notice of the case. If you have an email address, text phone number, you can maybe get notice to the tenant. Alternatively, prior to the tenant leaving you can also advise the tenant that you have sent in an L2 application and that a hearing date will be coming so the tenant should provide a forwarding address or other way of contacting them. While the LTB mail out to the tenant will be deemed service (and maybe the tenant does mail forwarding?) if the tenant doesn't show up and you proceed without the tenant the tenant could, in the future, bring a Request to Review to set aside the Order because of a lack of service (though when that happens you would then know where the tenant is!).
Hope that helps---clear as mud!
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
You will NOT get 3 estimates! Contractors don't show up, don't do what they say and in fact you are lucky to get ONE written estimate for the work! I've had 4 contractors simply not show up in the past 2 weeks!
ReplyDeleteI didn't get a written checklist, however I do have a video prior to occupancy which shows every detail in perfect condition. I have the after video with everything RUINED!
They've been there about 2 years, and caused so much damage that I have to replace:
Kitchen countertop, cupboard doors, kitchen faucet, kitchen floor, living room carpet, front entrance floor, stove, bathroom vanity, and the flooring in 2x lower rooms.
I asked them for $6,000 towards repairs which are estimated (quite accurately) at $14,000. I've not received anything yet.
I certainly understand the frustration you describe in trying to get estimates--it is a notorious problem. The point of getting estimates is to demonstrate that the amount estimated as the cost of repair is indeed a fair market representation of the honest cost. Without multiple estimates how do you prove that what is being charged isn't a total rip off? Of course there are ways to prove these things--but are they easier. It is probably easier to get away with one estimate if the estimate is from a national company (for example--Home Depot, Rona).
DeleteJust a note for those reading this article--it is somewhat out of date now for the "where" you sue the tenant. Today, the Residential Tenancies Act permits you to "sue" the tenant at the Landlord and Tenant Board even after the tenant is out of possession. The claim at the LTB has to be limited to damage caused by the tenant while in possession (which is normally the case). You have one year to make the claim at the LTB and the jurisdictional cap is $35,000.00.
My tenants/students from India infested my condo with bed bugs.
ReplyDeleteThey moved in May 2022, and reported they have bedbugs at the end of December 2022.
I am confident they caused the infestation. Condo was renovated before they moved in.
They have not been making effort to keep the place clean even after we spoke how important is to vacuum and clean when dealing with bed bugs.
We called professionals to treat the place, but bugs are still there. Two months into this process, they decided to move out. To use last month deposit.
I will be left with uninhabitable condo!
Who knows how many moths will it take to get rid of infestation!
I won’t be able to rent a place with bed bugs or live in it?
I am In danger of loosing my property !
Since my monthly payments are $3600 mortgage and maintenance.
I am under tremendous stress, my life is turning to a mere, since I heard about bed bugs at the apartment.
What options do I have?
Small Claim Court for damages?
They will move out by the end of March.
I won’t have their new address.
They didn’t pay the last month rent even.
Leaving me with infested apartment.
I feel desperate.
Thank you
Since this article was written the Residential Tenancies Act has been amended to allow (require) landlords to pursue claims against tenants for damages at the Ontario Landlord and Tenant Board. This INCLUDES claims against former tenants. You can now file a claim against a former tenant for damage caused to the rental unit during the tenancy. Note that there is a time limit to do so--it is one year--hence, do not wait if you intend to pursue the tenants for the damages caused.
DeleteAside from that I can comment on your post generally and empathize with your situation. Unfortunately, it is rather unlikely that you will be able to prove the source of the bedbug infestation and prove the consequent damages (costs) in dealing with the infestation. The argument generally goes that pest infestation is a fact of life--a fact of living. Lots of tenants get infestations, lots of buildings get infestations, it is the nature of what pests do. It is not accepted as fact that an infestation occurs because of fault. Certain pests, and bedbugs are a good example, simply get picked up as hitch-hikers during travel, in hotels, from guests, from service technicians--even from the truck delivering a new mattress (because they pick up old ones too). Pin pointing the source of the bed-bugs--knowing exactly how they arrived is extremely improbable.
Did you tenants bring the bedbugs into the rental unit? It is probable that they did. Sure, it could have been other people, other methods, but most likely your tenants were the cause as they are the ones who occupied the rental unit--meaning they did the most coming and going and were likely the ones who brought the bedbugs in. This conclusion, supposition, theory, however, doesn't help you. Even assuming the tenants brought the bedbugs in--this does not make them liable for the cost of dealing with them. Bedbugs are a fact of life and anyone can get them (and in fact many people do). The Residential Tenancies Act, under section 20, makes you liable for the cost of dealing with pest infestations. This is not a cost that you can recover from tenants (in most circumstances).
There is an exception to all of this. While you can't recover for an ordinary run of the mill infestation, you can pursue tenants for costs if you can/could establish that they failed to co-operate in dealing with the pests, failed to prepare for treatment, were negligent or wilful in creating a circumstance that allowed the infestation. A stretch, perhaps, if the "ordinary cleanliness" of the unit was such that the infestation took hold because of the breach of the tenant's statutory obligation to maintain the unit to a standard of ordinary cleanliness (s. 33 RTA), then perhaps you could visit liability on that theory (query--can you get a pest control technician to testify with some scientific or expert certainty as to the cause of infestation?).
What you will likely discover is that it is extraordinarily difficult to recover the costs of pest control from tenants. Not impossible---but very very difficult.
As for the timing of pursuing claims you do not have to wait for them to move out. You could issue an application to the Landlord and Tenant Board now. You can pursue rent arrears now too. None of these applications will be heard any time soon. The Landlord and Tenant Board Rules of Procedure allow documents to be served by email if you have an agreement in your lease to allow service in that method. Hence, service may not be an issue. Of course, if your tenants are students then finding them, chasing them, in the future for anything you might win could be extremely difficult (or expensive). Some of the concerns you are raising suggest a failing on your part to get proper documentation before the commencement of the tenancy and perhaps you rented to persons who should have had a guarantor.
DeleteAs a final(ish) comment, I will mention that your opening line of identifying the students as being from India is interpretable as being a discriminatory. It may not have been intended as such--but it could read that way. It doesn't matter where your tenants are from as this is not causal to the claim you are seeking to assert. Arguably, the identification of the tenants from India is to trade or rely on a stereotype or implication based on their origin. I don't know if this was your intent (I presume not) but just be careful as this kind of statement is inappropriate.
Hi I Michael, I would thank you for all your responses for the posted questions. One point is still not clear for me - can I initiate small court hearing for unpaid rent, keeping a dog business inside of the rented house, damaging house while waiting for LTB hearing to be scheduled? Or should I wait for LTB hearing first? Sincerely appreciate your answer. Thanks. Olga
ReplyDeleteHI Olga,
DeleteThank you for this question. The article under which this question is posted reflects the law at the time it was written. Since then, we've had some major changes to the Residential Tenancies Act that stipulate the right of a landlord to pursue claims for damage caused by the tenant. The summarized and short answer to your question is that now you would bring an application against your tenant or FORMER tenant at the Landlord and Tenant Board for damage caused by the tenant while in possession of the rental unit. You may wish to read section 89 of the Residential Tenancies Act that creates this "right". The section creates a one year time limit to file a claim after the tenant has vacated. If you are claiming compensation for damage while the tenant is in possession of the rental unit you are using an L2 Form (either with or without an N5). If you are claiming compensation for damage caused during the tenancy but after the tenancy has ended or the tenant has moved out you are using an L10 Form. The LTB has jurisdiction up to $35,000 (the same as the Small Claims Court). Unfortunately, the LTB has a basic "no costs" bias and the costs for the work of bringing the claim are not as easily recognized at the LTB as they were at the Small Claims Court.
Does it now mean that the Small Claims Court has no jurisdiction to entertain a claim for damages caused by a former tenant? I think that the intent was to most certainly take the jurisdiction out of the Small Claims Court (for damage caused during a tenancy) and place it squarely before the Landlord and Tenant Board. Section 168 of the Residential Tenancies Act creates an exclusive jurisdiction of the LTB in applications and with respect to all matters in which jurisdiction is conferred on it. The exclusivity of that jurisdiction, I think, will be intended to deprive the Small Claims Court of jurisdiction (meaning, you can't bring your claim there).
I am uncertain if there is anything in the Small Claims Court rules or otherwise in statutes (not the RTA) that speaks to the Small Claims Court's jurisdiction vis a vis damage caused by tenants in rental units. I suspect not, but stand to be corrected. If not, then I think you argue the SCC jurisdiction based on the sections cited here in this response.
I think the answer above--is the answer most of the time. However, you can think of quirky circumstances that challenge the notion of exclusivity. Arguably, the Small Claims Court will be the better venue if a landlord's claim is against a tenant and an occupant who was not a tenant (like a situation where one spouse was the tenant and the other was an occupant and not a tenant on the lease). The reason is that the LTB's jurisdiction is only against tenants and former tenants and not other occupants or other parties who may be liable for that damage. You couldn't also sue a guest of the tenant if they caused the damage at the LTB--while there would be no such restriction at the Small Claims Court. Also, query a situation where you fail to issue an application against the former tenant within the one year stipulated by the Residential Tenancies Act. Is that one year period a "limitation period", meaning you need to issue an application within that time period or lose your right to recover OR is that one year simply a time limit to access the LTB processes but the regular limitation periods under the Limitations Act continue to apply. An interesting issue if you lose the right to pursue the tenant--but continue to have the right to sue an occupant (i.e a spouse or roommate) in the Small Claims Court under the standard Ontario 2 year limitation period.
I haven't checked to see if these quirky issues have been addressed yet by the Small Claims Court---but if they haven't, they will be soon enough. It will be interesting to see any appellate authority to settle the issues as I imagine the push and pull from LTB to SCC and vice versa has not been settled by the amendments identified herein.
Good luck
Michael Thiele
www.ottawalawyers.com