Greanya Legal Services

By Daniel Greanya.

The term contract is a misunderstood term. Many laypeople understand a contract as a numbered document that lists things that both parties agree on in a rather formal manner, and which is usually drafted by a paralegal or lawyer. This understanding impacts their understanding of contract law and civil law as a concept, and their understanding of their legal rights and responsibilities. In reality, the term contract has a meaning far beyond the limitations of a formal written document. In this article I will provide a brief overview.

A contract refers to the legally recognized agreement between two or more individuals (corporations are considered a legal person in this case), which binds them to a particular obligation(s) or courses of action which may be enforced by the Courts. A contract need not be in writing, and refers more to the relationship between the parties created by their mutual exchange of promises. While it is often a good idea to get an agreement in writing, and a written agreement is properly called a contract, there is no requirement of writing in most cases (an ancient law known as the Statute of Frauds makes some exceptions). A contractual relationship may be created by an oral, written, or implied agreement. A written agreement need not be very formal, quite often a letter outlining the intention of the parties, or even a series of written correspondence will outline a contractual arrangement. One less formal type of contract is known as a standard form contract. These are typically tickets or invoices that have terms that the customer does not negotiate. A rail or intercity bus ticket is a great example. Most people would not consider this a contract, but a contractual relationship is created nevertheless.

Of course it is often advisable that a contract be in writing. As a paralegal, I advise clients to put contracts in writing for a number of reasons. A written contract prevents misunderstandings that may arise later on in the contractual relationship, after the terms may be forgotten or misconstrued. It also makes the terms of the contract easier to prove in court, should it become necessary to start proceedings in Small Claims Court. Establishing that something is implied is not an easy task, and it is also not easy to prove a contract where two parties have conflicting accounts of an oral agreement between them. It is also a good idea to get a contract reviewed by a paralegal. At Greanya legal Services, we will gladly do this for you at a fraction of the cost that will occur if you get into problems later on.

The persons agreeing to a contract are bound by what they have agreed to. This applies equally to oral, implied, and written contracts. If one of them does not follow what was agreed, it is a breach of contract and entitles the innocent party to sue for damages. This means that they go to court to recover the cost to them of the other party’s breach of the contractual relationship. A major breach entitles the innocent party to treat the contractual relationship as having ended. When a breach of contract is involved, a paralegal or lawyer is involved to commence a civil law claim. At Greanya Legal Services, we will handle your civil law claims under the jurisdiction of the small claims court, which is $25,000.00. We will also assist with claims that are slightly above this amount where it is not worthwhile to bring the claim to Superior Court. The Superior Court is a very costly and time consuming process where assistance of a lawyer is a must, and it is often beneficial to waive the amount over $25,000.00 rather than take a claim to Superior Court. For advice on your contract, or to deal with a breach of contract, call Greanya Legal Services. We are happy to assist you. You can reach us at 289-631-1504, 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.

Home renovation season is approaching, and disputes over construction projects and home renovations will surface in the months ahead. Many of these disputes will end up as civil law actions in the Small Claims Court. Homeowners have expectations about the quality of work and how the renovation will look, and it is important that both homeowners and contractors know their rights and responsibilities. Over the summer, I will address a few areas of the law that are important for renovation and construction projects.

Regardless of the nature of any written documentation or explicit agreement between the parties, there are some standards that must be observed regardless. Paralegals and lawyers refer to these terms as implied contractual terms. There are two types of terms which are significant to situations involving contractors, and these include explicit terms in an agreement, the things that the contractor and client agreed to and anticipated, and implied terms which the court will read into a contractual relationship. Implied terms aim to give effect to the intent of the parties, and give effect to terms that are fundamental to the nature of the contractual relationship. It would in fact be an absurdity for implied terms to be in dispute, they are that important. One of these is the implied term of reasonable quality. This implied term relates not only to construction or home improvement products, but also the realm of goods and services.

The implied term of reasonable quality includes a number of protections and expectations for construction projects. The implied duty means that work will be done in a proper manner as is expected of professionals from a given field of work. This means that the contractor, subcontractors, and persons working under them must be reasonably competent, that is have the skills necessary to do a good job. There also is a duty that the materials used will be defect free, in other words they will be of the quality required for the project. Obviously the standard of what is “reasonable” is a huge qualification. Workmanship does not need to be perfect to meet the legal test for this implied term, it must be of reasonable quality. For example, if an inspection team of three other contractors inspecting the work would agree that it has been done in accordance with industry standards, then the implied term has been met. Obviously the context of the work and the skill involved impacts the implied expectation of quality, a skilled carver or stonemason hired for specific and skilled craftsmanship would likely be held to a higher standard than an average contractor. Similarly, an unskilled amateur would not likely be subjected to the standard of a skilled craftsman with a lifetime of experience. Similarly, a contractor installing $250.00 per square foot granite flooring would be held to a higher standard than one installing linoleum. Context in these situations is important.

If you are a contractor, it is important to make sure that you meet the standard of reasonable quality, and use quality materials. It is also important to manage the expectation of the client to make sure that they are met. In doing so, you will reduce the risk of a civil law claim based on breach of the implied term of reasonable quality. If you have a problem with unsatisfied clients looking to sue you over work done, call Greanya Legal Services to find out your legal rights and obligations.

If you are a client looking to renovate your home, it is important that you make your expectations and wishes clear for the contractor, to ensure that problems do not arise later on. If you do have concerns about the quality of work done, it does not hurt to get a second opinion. If you have an issue with the quality of a contractors work on your construction or home improvement project, document the problems, and call Greanya Legal Services for a consultation. You can reach us at 289-631-1504, 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, BA (Hons.), MA

One major issue that clients are often unaware of is that there are time limits for a Plaintiff’s Claim in Small Claims Court and for other proceedings as well (limitation period). The limitation period varies based on the proceeding, but it does impact a client’s ability to make a claim. In my experience, clients are usually unaware that a limitation period exists. While most of the time the limitation period is not an issue, it is an important factor to consider in deciding when to start a proceeding.

For civil claims at Small Claims Court or in the Superior Court of Justice, the limitation period is generally (there are exceptions) two years from the discovery of a claim. What this means is two years from the time that the Plaintiff knew about the claim or should have known that they suffered a loss and that a Plaintiff’s Claim is the appropriate means to remedy the issue. If the claim is based in contract law for example, the two years would not start when the contract was made, but it would start when the contract is breached, such as when one party fails to meet their contractual obligations. For example, if a business takes out a five year loan from the bank, and makes all payments except for the last year of the agreement, the two year limitation period starts when the business misses its first payment. This two year period is absolute, that is it may not be waived in the interest of justice as limitation periods in court rules can be waived.

While the two year period can not be waived by the court, there are exceptions and exemptions. I will not mention all of them in this article, but I will discuss a few of them. In the first place, where a breach is ongoing, such as a situation where debt payments continue to be missed, you can still claim losses within the two year period even if past losses can not be claimed. In terms of exemptions, many of the exemptions apply to debts, for example, where the debtor acknowledges the existence of the debt in writing, the limitation period resets to the acknowledgement. Similarly, where a debtor agrees to a payment plan for repayment of the debt, the limitation period resets when the agreement is breached.

It is essential that clients are aware of the limitation period for their particular matter, and commence their Claim within the limitation period. A paralegal or lawyer can assist with ensuring that your claim is commenced within the appropriate time, however it is better to get early advice on the issue to know where you stand before it is too late. As a legal professional, there is nothing more disheartening than a client that you are unable to help only because they did not meet the legally mandated timeline. In the realm of the limitation period, the civil limitation period of two years is relatively generous. Limitation periods are routinely shorter. For example, the application period at the Human Rights Tribunal and most application periods at the Landlord and Tenant Board are only one year. Some limitation periods in relation to workplace injury claims are six months.

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

 By Daniel Greanya, BA (Hons.), MA.

One issue that often hurts WSIB claimants is a failure to report an injury when it occurs. A workplace injury does not always seem to be serious enough at first, and often employees try to work through the injury and try to ignore the symptoms. While sometimes ignoring the symptoms may work for a while, this strategy can also backfire on the worker. A worker has a duty to cooperate in treatment and early and safe return to work. The key word in this equation is early and SAFE. In trying to work through and injury, an employee can easily aggravate the injury, making it worse than it was initially, or cause a new injury. Waiting also may make it difficult to prove that the injury occurred in the course of employment, by muddying the waters for the employee's claim.

     The bottom line is that the best practice is for an employee to proactively report an injury and put it in writing as soon as the symptoms occur. Even if the injury does not require any modification in duties, a worker should still report it to their employer. A workplace injury which re-occurs is compensable, but it is not compensable if the employee did not report the initial injury. If an employee fails to report a workplace injury and needs benefits later on when the injury re-occurs or worsens, the Board may find that the employee has exceeded the limitation period, or has contributed to their injury, or that the injury did not arise within the course of employment, and reduce or deny benefits on that basis. More fundamentally, failing to report a minor injury may have lasting and permanent consequences for an employee's health if the condition worsens. Similarly, employers should proactively encourage employees to report injuries and seek treatment. While a short term modification or treatment may seem like a drain on productivity, early treatment reduces the impact of the injury and allows the employee to return to their pre-injury duties quicker and with less disruption. Modifying an employee's duties or providing medical treatment is superior to prolonging the injury so that it is permanent and more expensive. Early reporting and treatment is not just smart for the employee, it is also a sound business decision.

     Workers must report a workplace accident or injury and make a claim within six months of the injury, unless the Board allows an extension of the deadline, yet an employee should report an injury as soon as possible. Similarly, employers must report a workplace injury within seven business days, unless the injury results in first aid only, or the worker requires modified duties at regular pay for seven days or less. Both a worker and an employer also have a duty to report any material change in circumstances in relation to the workplace injury and the claim for benefits.

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.

With the passage of the Bill 14, the Non-profit Housing Co-operatives Statute Law Amendment Act, 2013, the process for eviction from Housing Co-ops has been partially placed under the jurisdiction of the Landlord and Tenant Board.  This change will simplify the process, and reduce the cost for Housing Co-ops.  It will also promote greater consistency in Ontario's housing legislation.

Housing Co-ops can evict thier tenants at the Landlord and Tenant Board only after they have also completed the process of removing the tenant's membership rights.  This involves a hearing before the Co-operative's Board of Directors, and a possible appeal to the Co-operative's membership.  Once this process and the appeal is completed, the Co-op can apply to the Landlord and Tenant Board according to a similar process to that followed by residential tenancies.

This change removes the process of eviction from the Superior Court, and the more formal process that was previously required.  It should make eviction for Housing Co-op's easier, and it will alow Licenced Paralegals to help with these issues.  The change is a mixed blessing, there are undoubtedly some cases that would beneift from the formality and consistency of the judicial process. 

Take a look at the following article:

http://paralegalscope.com/co-ops-gain-access-to-landlord-tenant-board/comment-page-1/

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.