Ontario’s Confusing Rent Laws

What do you think?     Suppose you sign an application to lease an apartment, and pay a deposit then later decide that you will not rent the apartment.  The landlord is unable to lease the apartment for two months.  Can the Landlord keep the deposit?   If you said “yes” then you are in strong company.  The Landlord and Tenant Board allowed a landlord to keep the deposit in similar circumstances.  The Divisional Court agreed when the matter was appealed to it (the court had three judges including the Regional Senior Judge) reasoning.    AND you would also be wrong.

The correct answer, as with so many things in the law, is “maybe”.  You see, in Ontario, Landlord’s are not allowed to take deposits.  They are allowed to take the last month’s rent.  So if the last month’s rent is used to secure anything other than the last month’s rent, it is probably illegal.

Thus, in Musilla v. Avcan Management Inc., 2011 ONCA 502, when the landlord had taken the prospective tenant’s deposit because she did not enter into a tenancy agreement, it had acted illegally.  It was apparently relying on the terms in the application which said if the Tenant fails to enter into a tenancy agreement, then the tenant forfeits the deposit.  This was wrong because the deposit was being used for a purpose other than securing the last month’s rent.  It was being used to secure the tenant’s entry into a tenancy agrement.

This case demonstrates a number of things:

1. Basic tenets in Ontario’s rent laws are probably not well understood by either the Landlord and Tenant Board or the Divisional Court;

2. Litigation is always uncertain until finally concluded.  It took the Court of Appeal to overturn the two lower tribunal’s decisions (query: what would happen if this case goes to the Supreme Court of Canada?);

3 Settle a case whenever possible.  Otherwise the result can be harsh.  The tenant was awarded costs in the Court of Appeal of $5,000 and costs in the Divisional Court of $2,000.  The landlord presumably also had to pay its own lawyer.  Certainly it would have been cheaper to simply have returned the deposit to the tenant?ible.  Otherwise the result can be harsh.  The tenant was awarded costs in the Court of Appeal of $5,000 and costs in the Divisional Court of $2,000.  The landlord presumably also had to pay its own lawyer.  Certainly it would have been cheaper to simply have returned the deposit to the tenant.

Canada Stepping Up Enforcement Efforts

The Canadian government continues with its enforcement push against persons living in Canada illegally.  The Canadian Border Services Agency made announcement of further  The focus today is on failed refugee claimants.

The Canada Border Services Agency (CBSA)is hiring an additional 95 enforcement officers in order to remove an additional 4,200 failed refugee claimants. If successful, the CBSA will remove a total of over 13,000 refugees from Canada per year.  Most of the officers will be based in the Toronto area.  The aim is to remove all rejected claims from Canada at least one year after the negative decision was made.  There are also plans to put in systems to track failed claimants.

The CBSA will implement an “Assisted Voluntary Returns,” to help with the removal of low-risk claimants.

Costs in the Small Claims Court

In Canadian law, a person who is successful in the Court is usually entitled to an award of costs.  The idea is that since you had to go through the trouble of bringing a court case, or of defending one, you should be compensated.    Costs are also a way of encouraging the settlement of claims.  If you know you will certainly lose an action, you may settle in order to avoid the cost award.

The principle also applies to proceedings during the litigation such as a motion to ask the court for something.  If the motion is unsuccessfully opposed, then the opposing party may have to pay costs.

Some things to note:

1. “Costs” generally refers to the legal fee that you paid a lawyer or other legal representative.  If you did not pay a legal fee, you probably will not get a cost award.  In the Small Claims Court, there is provision for the self-represented persons to be paid up to $500 as compensation for inconvenience and expense.

2. A cost award is almost always in the discretion of the tribunal.  You do not get it as of right.  Therefore, your own reasonableness and your attitude may affect your costs award and how much you receive.  On occasion, costs have been awarded against the successful party;

3. The amount of the costs award is also in the discretion of the tribunal.  However, you may be awarded disbursements (that is out-of-pocket expenses) in full.

As always, the above is not legal advice and should not be considered or relied upon as such. Your particular circumstances may be different. I only give legal advice to persons who are my clients.

If you need legal advice, contact me by email.  For face-to-face meetings, I meet clients in the Yonge-Sheppard area.

 

You Can Appeal A Small Claims Court Ruling

But, many times, such an appeal does not make sense.  An appeal should be done only if you feel you have a good chance of winning the appeal.  The costs of appealing are high and the chances of succeeding are low.  Remember, the whole point of the Small Claims Court procedure is to allow small claims to settle without too much costs.

There is an automatic right to appeal for amounts in excess of $2,500.  The appeal is made to a single judge of the Divisional Court of the Superior Court of Justice.  Most orders will be stayed on the  filing of a Notice of Appeal.  There are strict time lines that have to be adhered to.  If you do not comply with the timelines, then chances are, your appeal will fail.

You can appeal the factual finding in the Small Claims Court or you can appeal on the basis that the wrong law was applied.  Appealing on the factual finding of the judge is a very difficult task. Remember, an appeal is not a retrial of the case.  The appeal judge rarely hears new evidence.  He reviews the evidence in the trial.  If a matter was not brought into evidence at trial, then the appeal judge will not be able to consider it.

An appeal is intensive but is of a different nature from a trial.  The entire preparation process is different.  However, as will all court matters, you have to be well-prepared to be successful.

As always, the above is not legal advice and should not be considered or relied upon as such. Your particular circumstances may be different. I only give legal advice to persons who are my clients.

If you need legal advice, contact me by email.  For face-to-face meetings, I meet clients in the Yonge-Sheppard area.

“CBSA Most Wanted” List coming

“Wanted” list coming for persons facing deportation.

Some time ago, the Canadian government issued a list of persons facing deportation from Canada for suspected war crimes.  As a result of the publication of the list, seven of the thirty war criminals were arrested and two have apparently been removed from Canada.  Thus the publication was successful in apprehending the suspects.

As a result, the same strategy will be used to identify, not just suspected war criminals, but also the worst criminal offenders facing deportation but cannot be located.  Mugshots, age and countries of origin will be posted on line.  The public will be able to call a toll-free number to, I suppose, give information to the authorities.  There may be an award for tipsters.

This is probably part of the government’s tough-on-crime strategy.

It will be interesting to see how this strategy works.  Just how many persons will be on these lists?  (The article suggests 20,000)  Is this a temporary measure or a a new permanent part of the deportation process?   I suspect that there are relatively few suspected war criminals compared to persons convicted of violent crimes and facing deportation.  I also suspect that this will create a new bureaucracy in enforcing removals.

Limitation Periods

Let’s say you borrowed money and for some reason or the other, and did not pay it back as agreed.  Two and a half years after your breached the agreement to repay, you are sued by the creditor.  There is no doubt that you owe the money.  Will the creditor win this action?

Suppose you suffered an injury and sue for damages two and a half years later.  There is no question that the Defendant alone was responsible for your injury.  Will you recover anything?

Probably not.

Under the Ontario Limitations Act, 2002, proceedings brought after the second anniversary of the day on which the claim was discovered are not allowed.  Complications arise around when the “discovery date” is in issue.  However, generally speaking, the claim is discovered when you first knew about it.

If you fail to comply with this Act, then your claim will likely be dismissed.  The Act provides an absolute defence which is nearly impossible to get around.  Hardships is not an excuse – if you knew that there may be claim, and did not sue in time, you are basically out of luck.

There are a few exceptions to the Limitation Act defence.  Limitation periods do not run with respect to assaults or sexual assaults during any time the person with the claim is incapabale due to his or her physical, mental or psychological condition.  It also does not apply to minors who do not have litigation guardians.

There may be other limitation periods applicable to certain situations.

A recent example of the application of the Act can be found here.

If  you are contemplating bringing a lawsuit, make sure you know when the Limitation Act would apply.  Keep it in mind when making a decision when and whether to sue.

Appeals and Trials Are Not The Same Thing

Generally, in a trial, both parties provide evidence to the court to try and convince the court of their version of the facts surrounding the dispute.  The trier of fact (the judge) assesses the evidence and then decide what the facts are and who should recover.  On the other hand, an appeal is made to a “higher court” where the appellant tries to convince the appeal judge that the lower court made serious errors and that, based on the error, the appellant should get judgment or a new trial.

The crucial difference between a civil court and a higher appeal court is that while civil courts have an ancient history and their existence are arguably a constitutional right,  an appeal court is established by statute (a statute is a law made by the legislature). Therefore, while you may have a right to a day in court, this does not apply to appeals.  You only have a right to appeal if the legislature granted that right.

So in order to determine whether you can appeal, and how to appeal, you must look at the statute that gives the right to appeal.  The answer is not intuitive.  This is unlike a trial, where you usually have a right to start litigation if you feel that you have suffered some loss or have a dispute with someone about something.   There is no one rule that applies to all situations.

Secrets of Success in Litigation II

I previously discussed the need to be fully prepared when litigating a case.   Being prepared is essential to obtaining a successful conclusion of your case.  Without proper preparation, you will not be able to take full advantage of the facts and evidence in your favour.  You will not be able to spot and deal with negative evidence.  Preparation is perhaps the number one key to success.

However, you also need to know the law.  You need to understand what exactly you will have to prove in order to win your case.  In most cases, the plaintiff has the burden of proving his/her case.  A simple example would be a case of debt.  In debt situations, the plaintiff has to prove that you lent money to the debtor, and that he or she did not repay the money as agreed.  The plaintiff has to prove the amount of the debt.  If claiming interest, a basis for claiming interest will have to be shown.   The debtor on the other hand, has to show that he or she does not owe the money or violate the agreement to repay.  Perhaps the plaintiff misunderstood the terms of repayment.  Maybe there was no debt at all but simply a gift from the plaintiff to the defendant.   Or maybe, the debt has been repaid (this could happen, for example, where the plaintiff is not the original creditor, but purchased the right to collect the debt).

Another example would be a negligence action where the plaintiff has to prove that the defendant did the negligent act and that, as a result, the plaintiff suffered injury.  A potential defence could be to admit the negligent act but to deny that the plaintiff suffered any injury as a result (in reality, lawyers hardly ever admit damaging allegations).  In other words, the defendant could say “yes, you slipped on my floor, but you did not injure your back or any other part of your body”.  If the plaintiff is unable to prove injury, he or she will likely lose the claim.

The point is, as a plaintiff in any type of action, you must know what the law and what it is you have to prove.  Failure to prove essential elements of any claim will lead to a loss.  The same point applies to any defendant.  You must be able to point out the facts that show why, according to the law, you do not have to pay the plaintiff.

One last thing, it is inadvisable to go to court without at least first getting some legal advice.  A lawyer is trained in law and will spot many of the issues that you will have to deal with.  It takes years of training and experience to properly assess a case.

An Easy Way to Find Cases

Have you ever wondered where to find statutory law and case law? Most lawyers professional services such as Westlaw & Quicklaw. These are companies who provide access to legal information over the internet. These are excellent sources of information. However, they are expensive.

There is another option if you need to read an important case, or need to find a statute or regulation, try the CanLII website (“CanLII” stands for Canadian Legal Information Institute).  The website is fairly easy to use.  CanLii covers all of Canada including the Federal jurisdiction.  Many cases are available but the website is not a complete library of Canadian cases.

If you are doing legal research, try the CanLII website first.

The Goal is to Get the Case Settled

You rarely actually get your day in court.  The case usually ends before that day comes.

You may think that your dispute is so serious that you must go to trial – the other side simply will not agree to settle or is insisting on an unreasonable settlement. Or perhaps the emotions are running high. Or maybe your opponent is very strong on the facts and is insisting on full damages. However, the truth is, your case will likely settle long before trial. This is true for almost all courts and tribunals. The goal of our judicial system is basically to settle disputes, not to go to trial or a full hearing.  Trial is a last resort and usually only happens when the stakes are very high.

Perhaps the most significant exception is the Small Claims Court (in the Small Claims Court, matters procedure quite informally and is already, in essence,  in the nature of a mediation).   Another possible exception may be criminal law. However, even in these arenas, cases are settled on a regular basis. In the Small Claims Court, many cases settle at the Settlement Conference. In criminal law, many accused persons agree to a guilty plea in exchange for a favourable sentence.

No matter the reason, you should bear in mind that almost all cases settle.  Most cases probably settle at a mediation.  The vast majority of cases settle before a hearing starts.   Why?  Litigation is simply expensive.  It is expensive in terms of resources and it is expensive in terms of resources and time.  It is much simpler to compromise your case.

You should bear this fact in mind when thinking about a lawsuit – the goal is to make your case seem so strong that you can get it settled on favourable terms.   It should impact on your strategy and your approach to litigation. While it is important that you get to say your side of the story, try not to focus on getting the world to see how unjustly you were treated.