Greanya Legal Services

By Daniel Greanya

Bill 184, the Protecting Tenants and Strengthening Community Housing Act 2020 passed the Ontario Legislature and was given Royal Assent yesterday. It contains reforms to both community housing and other statutes, with Schedule 4 of the bill relating to residential tenancies. Let me outline some of the most important parts of the Act relating to residential tenancies. Some parts of this new Act are good and welcome, but other parts are bad law that did not warrant approval of the Ontario Legislature.

Rent Compensation changes (Purchasers use, Demolition & Conversion); & Tenant Bad Faith Applications

Applications for the personal use of the Landlord currently require one months’ rent be given to the tenant as compensation. This requirement has now been expanded to applications where a tenant is evicted for the use of a purchaser. In both cases, the funds must be paid prior to the termination date in the notice. The new law also requires a landlord to provide one month’s compensation where a notice is given for demolition or conversion to non-residential use, and in some circumstances where the Landlord evicts the tenant for repairs.

Where a notice for Purchasers own use is made in bad faith, the new act expands the tenant’s right to make an application for compensation. The time for this application has also been expanded to two years from the current one year.

Expansion of Section 78:

The new changes will allow a Landlord to make an application for an eviction under section 78 of the Act (eviction without a hearing), if the Tenant breached an ‘out of court’ agreement made between the Landlord and Tenant for payment of rent arrears. Previous to Bill 184, this type of application was only available where a mediated agreement or consent order was made. This section will make it easier to evict tenants for nonpayment of rent. A tenant always has the right to bring a Tenant’s Motion to Void the eviction under section 78, and it will be more important for a tenant to be aware of this process to protect their rights.

Prior Notice to Landlord of Tenant Issues:

Where a tenant wants to raise tenant issues on an Application for Nonpayment of Rent, they will now be required to give advanced written notice to the Landlord of the issues that they intend to raise. These issues will likely have to be raised on the appropriate Board form (to be created). Previous to this provision, the Tenant would be able to raise these issues without notice. This change creates an access to justice issue, as this creates a barrier for tenants who would like to raise these issues, many of whom may not have an easy time filling out this type of paperwork. It is also customary for tenants to receive advice from Duty Counsel at the hearing. It is unclear how the Board will deal with this, since a tenant will often have to wait until a hearing to get the advice they need to fill out the new forms.

Payment Agreements and COVID-19:

Landlords are being encouraged to make a deal with their tenants on payment of rental arrears during the COVID-19 emergency. The Board will be explicitly required to consider a Landlord’s efforts when an L1 Application for arrears comes to the Board.

Rent Arrears, Utilities, and other matters after a tenancy ends:

The new law has fixed the loophole created by the Divisional Court decision last year which decided that Small Claims Court does not have authority over residential tenancy matters. This usually became an issue where a tenant had moved out. Under the new law, a landlord may make applications for nonpayment of rent, utilities, or for damages and compensation to the Board for resolution even after the tenant has moved out. A landlord will have one year from the move out date to make the application. Fixing this loophole is a welcome change to the RTA which will end years of confusion over which forum these matters should go to. It makes the most sense for all residential tenancy matters to go to the Board.

A Landlord will be able to make an application for out of pocket costs related to a Tenants substantial interference with the Landlord’s reasonable enjoyment. Currently, a Landlord may only ask for compensation for damage to the residential complex.

Illegal rent increases:

An illegal rent increase will become legal if a tenant does not challenge the rent increase and pays it for at least one year. This section overturns the decision of Price v. Turnbull’s Grove which indicated that a void notice of rent increase has no legal effect, regardless of if a tenant complies with it. This change is bad law, which will reward bad behavior by some Landlords, and allow vulnerable tenants who are not aware of their rights to be taken advantage of.

I hope that this summary provides some guidance as to the changes that are coming out. Articles like this are intended as legal information only, and do not take the place of legal advice. If you need legal advice related to residential tenancies, please contact my office. We are happy to help you.

The COVID-19 Pandemic has proven to be a challenging time for all Ontarians. It has caused unprecedented disruption to people’s personal lives, and unprecedented economic disruption. As a part of this, many are out of work and unsure where their next paycheque is going to come from, and how they will feed their family.

In response to the challenges faced by families, the Government of Ontario has provided messages which can be misleading. Ontarians have been encouraged not to pay their rent, and that tenants will not be evicted because of COVID-19 related non-payment of rent. In this post I would like to clarify things.

The obligation to pay rent in Ontario is based on a private contract between a Landlord and a Tenant. This obligation has not been suspended in any way as a result of COVID-19. Tenants will still ultimately be responsible to pay the rent during months in which they are impacted by COVID-19. To accomplish the objective of suspending rent for a month would require a law to be passed by the Ontario Legislature, which has not been done at this point. It is very important that tenants are aware that the Government has not provided them with free rent (which seems to have been done in other countries but I cannot confirm that).

There are however two things which the Government did do. In the first part, the Landlord and Tenant Board is not hearing matters and evicting people. Second, the Sheriff is not enforcing eviction orders where they are made. Ontarians are being urged to stay home as much as possible, as searching for a new place is not advisable in a public health emergency. This suspension is only temporary. As a result, there is not an immediate threat of eviction, but there is a possibility down the line if rent is not brought up to day. Evictions will eventually resume, including for those months covered by this pandemic.

If you can pay your rent now, I strongly recommend payment. If that is not possible, then do not pay it. Keeping your family safe and putting food on the table is the most important thing right now. Be aware though, that barring any unforeseen changes in the law, that you will eventually need to pay any outstanding rent. If it does come to an eviction application and hearing at the Board, section 83 relief may be granted based on any lost earnings due to COVID-19.

From a human standpoint, it makes sense for both Landlord and Tenant to give some grace in this situation. The economic dislocation being experienced is not the fault of either side, and places an extraordinary burden on families. Many tenants are unable to pay their rent because they are suddenly out of work, a situation also faced by some Landlords. If a payment plan to get things up to date once this crisis is over or to wait for payment until government assistance arrives can be made, this is far preferable to an eviction based on this crisis. Please accept the best wishes on keeping safe and healthy during this horrible crisis.

*This article does not constitute legal advice, and does not create a paralegal-client relationship.  Should you require advice about a specific matter, please contact our office.*

By Daniel Greanya

How to handle utilities is often a major issue between landlords and tenants. It also raises legal issues given the state of the law and how it has been applied. Historically it was customary for utility payments to be included in the rent, which means that tenants would pay the same rent regardless of how much utility costs were. More recently, some landlords have chosen to make tenants pay their own utilities. Landlords like this approach because they do not have to worry about fluctuating bills and tenants have an incentive to save money. There are some challenges with this new approach.

Under the Residential Tenancies Act, rent is defined as

“…the amount of any consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord or the landlord’s agent for the right to occupy a rental unit and for any services and facilities and any privilege, accommodation or thing that the landlord provides for the tenant in respect of the occupancy of the rental unit, whether or not a separate charge is made for services and facilities or for the privilege, accommodation or thing…”

 

This definition is very broad, and would clearly include utility payments. This must be read in combination with section 168(2), which gives the Board exclusive jurisdiction over residential tenancies and matters raised under the Residential Tenancies Act. It would seem that this would mean that the Board has exclusive jurisdiction to hear applications related to utility payments, and to order payment of utilities.

The Residential Tenancies Act contains a comprehensive scheme regulating rent amounts and preventing rent increases during a tenancy. Under the Act, rent must be increased by notice only one time per year. Yet if utility payments are considered rent, and they by definition fluctuate, then how would this fit into the scheme?

The Landlord and Tenant Board Interpretation Guideline 11 and the Board’s case law, deals with this issue. The Board has maintained, if a tenant pays for utilities directly, then utilities are not included in rent. If costs are paid by the landlord and reimbursed by the tenant, the costs are included in rent only if the costs are unchanging on a month to month basis. Most utilities under this interpretation are not considered by the Board, and cannot be claimed in an application for nonpayment of rent. The exception is where the landlord pays utilities and the tenant reimburses them for a fixed amount.

This interpretation by the Board seems at odds with the definition of rent listed above. If the Board does not admit jurisdiction in these matters, a landlord’s only option is to take the matter to Small Claims Court. Most decisions of the Small Claims Court follow the practice of the Board and award reimbursement of utilities as a debt owed the landlord, but not as rent. Some however use the definition of rent to deny claims on the basis that they do not have jurisdiction. This gives a landlord no recourse to recover amounts of utilities owed to them. The treatment of utilities is an area ripe for appeal; and it would be beneficial for all parties to know where these matters should be brought.

If you are in need to collect unpaid utilities from tenants, it is important that you do it right and bring it to the right place. Greanya Legal Services can help with this and other residential tenancies situations. Now for one final tidbit:

Payment of water bills are different from other utilities. Municipalities who provide water services will not as a general rule transfer utilities into a tenant’s name. If water bills are not paid, unlike other utilities the amounts will be added to the property tax bill. A landlord can request that a tenant reimburse them, but if the tenant does not do so, the landlord is stuck paying the bill and cannot allow the water to be shut off. For this reason, I usually recommend that water be included in the rent, even if other utilities are not.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

Limitation periods are one of the issues that I must review with new clients prior to taking any action on their file. While some clients are aware of what these are, and others have a vague idea from American television (references to the Statute of Limitations), most clients are unaware of what a limitation period is and how it impacts their case.

When it comes to legal matters, as time goes on, witnesses have fading memories, and evidence is no longer available. It may also not be particularly fair to hold potential claims over people for the rest of their life. People move on, and deserve the chance of a fresh start. At the same time, a party who has been wronged also needs the ability to bring a case to address the wrong done to them, but this must be done within a reasonable period of time.

The reasonable timeliness of a claim is addressed by what the legal community calls a limitation period. What this means is that for most legal matters, there is a strict time limit on taking action, after which the claimant is prevented from taking any action, and the responding party is free from the burden of litigation. The general limitation period in Ontario is two years. This means 2 years from the time of the events which give rise to the claim. This may be a different date for different matters, for instance if a claim is based on a loan where periodic payments are made, the Plaintiff has 2 years from the time that the debtor fails to pay the loan. In a personal injury case, the claim may be from the date of the accident, or the date that a particular injury was apparent (which it may not be on the date of the accident).

Limitations periods are very important to litigation before both courts and tribunals, because they will impact your ability to bring a claim. Now to be clear, not all limitations periods are 2 years and there are other exceptions that often apply which may extend the timeline, so it is important to consult a legal professional about the time limits applicable to your matter. For instance, many Landlord and Tenant Board applications have only a 1 year limitation period. For more information about limitation periods or advice on your legal matter, please contact GLS.

 

By Daniel Greanya:

One area of law that my office represents people in is in the area of legal disputes related to residential real estate transactions (not the transactions themselves, only lawyers can do that). Usually these matters come to my attention only where the sale falls through for some reason or there is a dispute over the transaction or the property. Residential Real estate transactions are the most important transaction a family will make, and it is very important that care is taken to protect the family’s interest.

It has become common in real estate transactions for a salesperson to suggest waiver of any inspections or conditions to enable clients to get the house. This is a very bad practice for both the real estate salesperson and the homebuyer.

With very few exceptions, residential real estate law in Canada is one of the last bastions of the principle of caveat emptor. This latin term literally means “let the buyer beware”, and stands for the concept that a buyer must satisfy themselves as to the quality and or suitability of the product or service that they are purchasing prior to purchase. The seller may not act deceitfully to hide important information from the buyer, but the buyer is responsible to make sure that they are making a sound purchase.

A purchaser protects themselves under caveat emptor two ways, first by placing warranties (promises by the seller that the home will be in a specific condition, and that they will be responsible if it is not) in the Agreement of Purchase and Sale, and second by attaining a home inspection. Now, a home inspector is only going to report on things that are visible upon inspection, not all things that are wrong with the property, nevertheless an inspection is very important. Outside of discovery of a problem in a home inspection, a buyer generally has no claim against the seller unless they can prove that the problem is one that the buyer could not have discovered upon proper inspection, that seller knew about the problem and that the seller concealed it. If the buyer could have discovered the problem by reasonable inspection and chose not to do so, the seller will not be responsible.

Of course if the seller is not responsible, and the buyer has not inspected, the problem is now the buyers’ problem. This applies even where the buyer would not have purchased the property if they would have known. Often the buyer who thought that they were purchasing a home without problems finds out that they now have a bill for tens of thousands of dollars that they did not budget for, and did not know about, and they are responsible for a home that they would not have bought had they known about the problem. There is no recourse against the seller, so the only option a purchaser has is to absorb the cost themselves or take action against the real estate agent. This brings us to why this is a problem for salespersons.

A real estate agent has a legal and professional duty to properly advise their client and to act in their client’s best interest. After all, that is why the client has hired the real estate agent in the first place. In the scenario where a significant problem is discovered and the agent has not attained an inspection, a real estate agent can be sued for breaching their contractual and fiduciary obligation to the client, and can be on the hook for some or all of the purchaser’s costs.

While it may seem expedient to dispense with an inspection, it is very important for agents to advise that an inspection be completed and for purchasers to demand an inspection. This will help both parties ensure that the transaction is one in which the purchaser is going to be happy with, and prevent unnecessary cost and aggravation later.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

by Daniel Greanya

To most people a contract is a written paper signed by both parties with agreed terms on it. In reality only a small number of contracts fit this description. A contract refers to the terms agreed by at least two people where one party provides something in exchange for something else from the other party (an exchange, known as consideration). Contracts can take the form of a signed piece of paper, but they can also be orally made, they can be a letter, or an email exchange between parties. A ticket with terms on the back is also a contract, made by the payment of consideration, which implies the acceptance of the terms on the ticket.

A contract assumes that people agree on the terms that they will abide by. The reality in day to day business transactions is that this does not always happen. Sometimes each side understands what was agreed differently, and if the difference is fundamental to the agreement, a Court may find that a contract was not made (that the parties did not come to an agreement at all). If an agreement is not made, there is no agreement for the courts to enforce, and yet often one or both parties have done what they promised (or thought that they did). If the court were merely to find that there is no contract to enforce, both parties could be out time and money, sometimes considerable time and money. This principle applies equally to situations where there are problems with goods/services provided (but are still not totally useless), or where the goods/services are partially provided.  In these situations, the legal principle of quantum meruit or unjust enrichment applies. Under quantum meruit, a party is entitled to compensation for the contribution that they have made to their end of the bargain. It allows the Court to assess the value of the goods and services provided by a party even where a contract has not been made, and order the party who has received the benefit of another party’s contribution to compensate that other party. For instance, suppose I tell a contractor to construct a deck for me. Now suppose that the contractor agrees to assess the project, draft plans, and purchase materials. The contractor assesses the project, drafts plans, and purchases materials, but then I tell him that his price is too high and I do not wish to proceed. The contractor is now out the work that he has put into the project, which may be considerable. He is not willing to let me off the hook for this amount so he sues me. To be clear, there is no contract, we have not agreed on a set price for the project or for the work done and I may not have even promised to pay a partial amount for his work. Despite this, I receive the benefit of the work to his detriment, and it would be unfair to allow me to escape payment for the work. The contractor can sue me under quantum meruit, and the court will assess the value of the work he has done, which I will have to pay for.

Quantum meruit is a very important tool to allow the Court to ensure that all parties are being treated fairly, and to prevent injustices. In the business world, it allows a goods/services provider to get compensated for the goods and services that they have provided, even where there has not been an agreement on the cost, or where not all of the work has been completed. If you think that quantum meruit applies to your situation, please contact my office at 647-701-5589 or [email protected]

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

By Daniel Greanya

When purchasing or selling a home, it is very important to have the advice of qualified real estate and legal professionals. A home is the largest purchase that most families will make in their lifetime. A real estate transaction is a very serious endeavour, which is fraught with risk. Now I have to disclose that I am not a real estate lawyer, and I do not help people complete real estate transactions. I get involved as a part of my civil practice, after a problem occurs with the transaction, such as where the transaction falls through, or where there is another dispute related to the transaction that is small enough that it goes to the Small Claims Court.

Real estate law is one of the last frontiers of the legal maxim caveat emptor, or “let the buyer beware”. This maxim refers to the legal proposition that a buyer must take all steps to protect themselves and to ensure that they are making a smart purchase. A seller could not mislead a buyer, but the buyer was expected to satisfy themselves as to the quality of the purchase made. This legal principle fit well with the laissez-faire economy of the 19th century, however most people would consider it unduly harsh in the modern world. That is why in many cases, it no longer applies, and a deluge of legislation and case law has been developed to protect consumers.

Of course, the nature of real estate transactions make it tough sometimes to protect oneself. Problems often are concealed, for instance where a real estate transaction includes a backyard pool which is closed for the winter. As a result, there are a number of ways that buyers should protect themselves, including home inspection and warranties, or terms that are included in the Agreement of Purchase and Sale to protect the buyer.

In my next post, I will continue to talk about home inspections and warranties and how they protect buyers.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

One issue that comes up frequently in my practice with small landlords is how to deal with a tenant where the landlord intends to sell the house to someone else. Small landlords often do not know what to do when they decide for whatever reason to stop being a landlord, or to sell a rental property. What complicates the issue is that often the tenant in the property has been problematic. Real estate agents and lawyers manage the transaction of selling a home and they are the experts in relation to the transaction, but do not work with residential tenancies law on a regular basis. Landlords usually want help navigating the legal landmines associated with selling a property.

Residential tenancies in Ontario as noted by Section 18 of the Residential Tenancies Act “run with the land.” A residential tenancy transfers part of the interest in the land to the tenant, who is entitled to occupy the property within certain conditions such as payment of rent, and following other terms (such as outlined in a lease or in the Residential Tenancies Act). A residential tenancy gives what can legally be referred to as a subordinate interest in land. The owner of the property has the primary interest, but the subordinate interest still exists and has to be dealt with through the legal process. The transfer of ownership from one owner to another does not end the subordinate interest, and it continues under the new owner.

Unless otherwise negotiated, an Agreement of Purchase and Sale usually indicates that the seller will provide “vacant possession” to the purchaser. This means that the house will be provided empty for the other party to move in on the closing date. Of course, if there is a tenant, this cannot be done. If a seller has agreed to provide vacant possession and still has a tenant, they are in violation of the Agreement of Purchase and Sale and can be sued for breach of contract. Of course this is the worst possible scenario for the family moving in, which now finds themselves without their home.

One way to prevent this scenario is to tell the buyers that the tenants are there, and sell the house with the tenants that go along with it (that is to sell it with the idea that vacant possession will not be given). Of course, this means that the tenants become the new owners’ problem, and they may not want to do this unless they want the house for a rental property.

The second way to deal with this is to evict a tenant for the purchaser’s own use. This process requires confirmation of the intent of the purchaser to move in. Greanya Legal Services can assist with this process, but it is important also to make sure that this is negotiated up front by the real estate agent working on the transaction to avoid problems later. You will want to make the application early, since it can take up to three months or more to go through the legal process to evict a tenant. Be prepared for delays, the Board has the jurisdiction under Section 82 of the Residential Tenancies Act to delay an eviction if the tenant would suffer hardship.

The sale of a rental property can be navigated. It does however take a bit of special care to navigate the legal problems that may result.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

 

 

In my last post, I introduced the topic of unpaid debts, and addressed the first common justification provided for failure to pay. There are three other common reasons that I wish to address, including disputes over the quality of goods and services provided, disputes about the completion of the contract, and the reasonableness of an invoice.

A common area of dispute between a consumer and a goods/services provider is that of quality of the work or services provided. Aside from any specific duties made in the contract between the parties, there are also common law duties to ensure that goods and services are adequate. These duties have been developed over hundreds of years, and have been modified by provincial and federal laws passed by Parliament or the Legislative Assembly.

The principal of Caveat Emptor or “let the buyer beware” is a traditional contract law concept that required a buyer to satisfy themselves as to the quality of the goods and services that they are purchasing. While this principal is sometimes applied in a modern context, it is not practical to require a modern consumer to take on the responsibility prior to purchase. As a consequence, this principle is not usually applicable in the modern context, and has been modified or discarded in most circumstances. It has been recognized that goods purchased must usually be of a reasonable merchantable quality. Additional rights may be applicable depending on warranties made by the seller, or where the seller was asked if the goods would be suitable for the purpose that the buyer had in mind. Similarly, where services are provided, they must also be of reasonable quality. For example, contractors and skilled tradespeople must use reasonable skill in doing their work; including compliance with applicable building standards (see my previous article on contractors and reasonable quality). Skilled tradespeople are expected to provide competent work and materials that are compliant with the standards of their trade. Additional duties may apply where the nature of the contract or the task requires it. For example, a contractor for the installation of costly imported marble would potentially need to take greater care than the minimum standard to ensure proper installation, in contrast to a contractor installing linoleum.

Another area of dispute is the completion of the goods or services provided. The Court will not award damages and a party is not entitled to claim damages for goods or services that have not been completed. This would be fundamentally unfair. Quite frequently, in disputes of this type, some work has been completed, but other steps have not been completed. In these circumstances, the Court will usually decide how much the goods and services which have been provided are worth, and require payment of this amount.

Another area of dispute is the reasonableness of the debt. Usually, the parties agree on the amount which is reasonable for the services provided, and the Court will not usually replace this with their own judgment of the matter. The court will take action in some of these disputes where the amount of the charge is more than what was contracted for, where the charge is excessive or unconscionable. Under the Consumer Protection Act, a charge for a consumer transaction may not be more than ten percent (10%) in excess of the amount quoted. Of course this may not apply if following a quote, the scope of goods or services provided drastically changes. If you are a contractor or service provider, it is your responsibility to make sure that any estimate you give is realistic and accurate. The consumer is entitled to rely on the estimate made. I should also note that misrepresenting the cost or nature of goods or services may also give rise to a claim of misrepresentation.

This article is intended to provide a vignette of knowledge about unpaid debt claims and how they are dealt with by the Small Claims Court. I cannot fully summarize the law in a short article like this, nor would it be appropriate to do so. If you need assistance with a specific case, contact us for legal advice.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.

Sexual harassment includes sexual jokes and innuendo, pictures or other materials, sexual advances, among other things. Sexual harassment falls into the categories covered by the Human Rights Code, and may involve discrimination based on sex, gender, and sometimes sexual orientation.

All employees have the right to be free of sexual harassment. Sexual harassment poisions the workplace environment, destroys workplace morale, offends the dignity of the person, and makes a workplace impossible to work in. This type of conduct must be taken seriously by an employer, investigated and consequences imposed on the perpetrator.

Complaints about sexual harassment should be made to the employer. If however, nothing is done about the harassment, the employer can be taken to the Human Rights Tribunal. The HRT will award damages to an employee based on the seriousness of the harassment. One incident will be treated less seriously by the tribunal, however multiple incidents, and more serious incidents will lead to higher level of damages from the Tribunal. Sexual harassment is very serious. What seems to be innocent may not be taken innocently, so it is always best to avoid conduct that might be considered sexual harassment. Continuing in harassing conduct can lead to sanctions up to loss of one’s employment. Sexual harassment is not worth it.

Employers should make their expectations that sexual harassment should not be allowed in the workplace to protect themselves from liability and to ensure a positive work environment. A positive workplace culture will go a long way to prevent sexual harassment and other forms of misconduct. While workplace culture deos not cause sexual harassment, it does encourage improper behaviour. The employer should set a clear and consistent standard.

Greanya Legal Services can provide advice on sexual harassment and the human rights process. Next week I will address the issue of workplace violence. This will be the final week dealing with workplace harassment and violence series.

DISCLAIMER: This article is intended as general information, and does not replace the advice of a Licenced Paralegal or Lawyer. For advice on your specific case, contact Greanya Legal Services directly.