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Condominium Owners Responsible For Their Tenants Actions
Image Source - Pixabay
The following article demonstrates how a condominium owner was held responsible for their tenants disruptive behaviour by the Ontario Superior Court of Justice.
According to the article written by James Cook in Real Estate Magazine, the decision demonstrates some of the potential perils of renting out a condominium unit and the consequences that may result. Due diligence on potential tenants should be thoroughly conducted by unit owners before entering into a lease, as eviction proceedings are slow and costly. A condominium will be looking to unit owners to cover the costs and any damages that are incurred before a tenant is eventually evicted.
To read the full article and further reason as to why the courts ruled in this favour, CLICK HERE
Carson Law can help with your Landlord and Tenant problems. Please contact our Paralegal at paralegal@carsonlaw.ca
What You Need To Know About Rent Control In Ontario
What Is Force Majeure?
New Protection For Buyers and Owners of New Homes In Ontario
Type of Leases
Technology That Every Landlord Should Use
Questions To Ask A Prospective Tenant
Evicting A Tenant In Ontario
Dog Bite, Liability and Injuries
In Ontario, when it comes dog attacks, the owner is strictly liable for any injuries that may have resulted from the attack. The plaintiff does not need any proof that the dog owner was not careful or whether the dog owner should have been diligent. The plaintiff only needs to prove dog ownership, along with the severity of injuries and losses.
Slip and Fall Claims
Rent Control In Ontario And What We Need To Know
Bill 184 Is Now Official In Ontario
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
Since mid-March, Ontario rental housing providers have been unable to evict tenants who were unable to pay rent due to the impact of Covid-19. Many people have lost their jobs and are still recovering from the impact, if at all. During the pandemic, the province had stopped evictions to protect tenants from being forced out of their home. As a result, landlords were not paid months of rent and many are still not receiving rent. Now, a bill has been passed to protect both landlords as well as tenants in times of hardship. The bill proposes a number of amendments to the Residential Tenancies Act, 2006 (RTA) and Housing Service Act, 2011. Following are the new updates to the legislations and details about what this new bill is about.
What Does This New Bill Entail?
Bill 184 is known as Protecting Tenants and Strengthening Community Housing Act. Bill 184 will require anyone with rent arrears to pay back their landlords in a structured repayment plan. The legislation before was structured to protect tenants from unfair eviction due to rent arrears, especially in the midst of Covid-19. However, as the health crisis eases and the suspension on evictions comes to an end, the legislation had to come up with a way to also protect landlords who have lost months of rent, and are still not being paid by many tenants. This bill provides options for landlords to make structured payments in order to pay back the amount of rent owed.
Changes In The legislation
Compensation from former tenants
At this point, landlords are permitted to apply for seeking rent arrears under Section 87 and 89 of the Residential Tenancies Act, 2006. Landlords can also seek compensation for over holding or damage to a rental unit where the tenant does not give up possession beyond the expiration of the lease. The legislation plans to permit landlords to use the sections to file an application even after a tenant has moved out of the rental unit. Landlords will have one year from the date their tenant has moved out to file an application with the Landlord and Tenant Board for compensation regarding any of the above situations.
This bill will allow landlords to seek compensation with respect to a tenant interfering with another tenant’s or another resident’s reasonable enjoyment of the premises. Landlords will be able seek compensation for the tenant’s failure to pay any utility bills for which they were responsible. Landlords have one year from the date the tenant moves out of the unit to file this application. Hence, the most important change to this part of the legislation is that landlords will be able to pursue an application for the above matters even after tenants have vacated the rental unit.
Increased fines for terminating a tenancy in bad faith
Before bill 184 passed, the Landlord and Tenant Board would take action when a landlord terminated a tenancy in bad faith. Landlords’ usual reasoning for ending a tenancy would be for personal use, demolition, conversion and substantial renovation. The board would order landlords to pay an equal amount of rent increase as a result of the tenant moving elsewhere, including moving expenses, storage costs or similar expenses. Landlords were also fined up to $35,000 in the case that they acted in bad faith.
What Bill 184 changes is that now, if a landlord ends a tenancy in bad faith, the board can order the landlord to compensate the former tenant in an amount equal to up to twelve months’ rent at the monthly rate last charged by the landlord.
Affidavits are required for applications to the Board to terminate a tenancy
Bill 184 requires landlords to swear an affidavit setting out the particulars of the reason for termination of tenancy. It can be any of the above-mentioned reasons, but the affidavit makes sure that any landlord who wants to terminate a tenancy in bad faith will be held accountable. In addition, landlords are now required to indicate whether or not it has been two years in between filing the present application and a previous one in case a termination notice was given before for similar reasons.
The Bill makes sure that a landlord does not act in bad faith considering the reasons for termination. It permits the Board to use a landlord’s previous use of notices of termination under Sections 48, 49 and 50 in determining whether or not they are acting in good faith in currently applying for termination of a tenancy under those same Sections. The important part of this is that the sworn affidavit will deter landlords from terminating tenancies in bad faith.
Penalties
Before Bill 184, Section 238(2) of the Residential Tenancies Unit provided that a corporation found liable for a breach of contract under the RTA are liable on conviction to a fine of not more than $100,000. Bill 184, however, increased this maximum to $250,000.
Position of Lawmakers
The government has stated that this bill will make it easier to resolve disputes while protecting tenants from unlawful evictions. The purpose of the bill is to simply protect both landlords as well as tenants. The changes being implemented will bring fairness to the system. Every eviction does not necessarily need a hearing at the Board, but a fair eviction in the case that a tenant does not pay back rent owed in bad faith, not because they cannot afford it. The changes to the legislation also protect tenants in the case that a landlord decides to terminate a tenancy in bad faith. Now, if a landlord acts in bad faith, the board will require them to compensate the tenant for hardship, in addition to receiving a large number of fines.
Position of Tenants
Tenants all over the province who currently rent are not happy with the bill. Many had lost their jobs when the pandemic started and many of them were not able to make rent payments. Activists and tenants all over the GTA are protesting this bill saying that it will lead to mass evictions, as not many people happen to have jobs right now. Tenants and activists are worried that once they arrear in rent payment, a structured payment plan will be implement for tenants to pay back the money to the landlord. Keeping in mind that when the pandemic started, none of the renters were forced to make rent payments as the board put a halt in filing applications for eviction. The idea was never that renters will not have to pay the rent ever again, but that once the economy started to get better, and people get their jobs back, tenants would have to come up with a payment plan for the months of rent they previously did not have to pay due to the pandemic.
Tenants are scared and they fear that they will be evicted and will not have a chance to present their case to the Board. According to tenants and activists, the bill puts renters and the working class in danger. People do not agree that landlords should be able to evict tenants in the case that tenants do not pay back the rent arrears that were incurred during the pandemic.
Comments
Though both sides have fair and justified concerns about the residential tenancy system, Bill 184 was not enacted to be unfair on any tenants going through hardship due to the pandemic. During the pandemic, landlords were simply not allowed to file any application for evictions related to rent arrears. That led to mortgage deferrals for a number of months before financial institutions decided to recently suspend that. Landlords will be forced to sell their homes, or pay mortgage out of pocket to keep tenants in the rental units. The bill is trying to support landlords in these hard times as well as trying to protect tenants. It is understandable that many might fear that it gives landlords the leverage to treat tenants unfairly. However, the bill makes sure that tenants are protected. As discussed above, landlords will not be allowed to evict tenants in bad faith, and if they do, they will be fined and will be forced to compensate. The bill does not open up disputes regarding unfair evictions. If a landlord takes any steps that treats a tenant unfairly, it is advisable that reach out to a legal representative for help. It is important to know what your rights are and options to make sure you are protected.
Articles written by Anika Helen:
When Are You Allowed To Evict A Tenant In Ontario? What Different Kinds of Damages are there in Litigation? Section 718.1 of the Criminal Code
Common Summary Conviction Offences Impact of COVID-19 on landlords and tenants Who is a litigation guardian and what are their duties?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
When Are You Allowed To Evict A Tenant In Ontario?
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
According to the Residential Tenancies Act, 2006, and the Rental Fairness Act, 2017, a landlord can evict a tenant only for certain reasons. Tenants can get evicted for doing things are not legally allowed to do in a rental unit. Some situations where a landlord can evict a tenant are:
Evicting a tenant for non-payment of rent or not paying the rent in full
When a tenant pays rent late and the rent is not paid in full by midnight of the day when it is due, the landlord does not have to accept partial payment. It is up to the landlord whether they want to accept the partial payment and how to proceed to recover the rest of the rent that is owed to them. Landlords can serve a notice that advises tenants to pay the remaining balance of the rent, or move out of the home. The notice gives the tenant 14 days to pay the rent or to move out. If the tenant takes neither of those steps, a landlord can then proceed to file an application with the Landlord and Tenant Board for an order that requires the tenant to pay the rent or evict the tenant in the case the rent has not been paid by the deadline outlined in the notice.
Evicting a tent for persistently paying the rent late
When a tenant is often late with rent payments, a landlord has the option of serving a Notice to Terminate a Tenancy at the End of Term. In most cases, 60 days’ notice is required for the termination. However, for daily and weekly tenants, 28 days’ notice must be given before the end of their lease or rental period. Alongside of serving the notice, a landlord can also apply to the Landlord and Tenant Board for eviction of the tenant, where a hearing is held to hear both sides and make a decision.
Evicting tenants for damage to unit or complex
A landlord may serve a notice of termination of tenancy if the tenant, another occupant who lives with the tenant, or a guest of the tenant willfully and negligently causes damage to the rental unit or parts of the rental unit. A notice of termination will outline the following:
Provide a termination date that is 20 days after the notice is served;
Require the tenant to repair the damaged property or pay for the costs of repair of the damaged property within 7 days after the noticed is served. If the costs of the repair of the damaged property are not reasonable, the tenant must then pay for the replacement of the damaged property
In the case that the tenant complies with the notice of termination and pays for the damages of the property within 7 days and causes no further damage to the property, then the notice of termination is void.
Evicting tenants for illegal activities
A landlord may provide a tenant with a notice of termination of tenancy if the tenant, an occupant that lives with the tenant, or a guest of the tenant carries out illegal act, business, trade or occupation and permits another person to do so in the rental unit. The notice provides 10 days for the tenant and their occupants to move out of the unit.
Evicting tenants for interfering with reasonable enjoyment
A landlord may provide a notice of termination of tenancy if the conduct of the tenant, an occupant who lives with the tenant, or a guest of the tenant interferes with the enjoyment of other occupiers in the residential complex. If the conduct interferes with another person’s lawful right, privilege or interest of the landlord of another tenant, they can be served with a notice of termination. This notice provides the tenant with 20 days to move out of the rental unit. However, in the case that the tenant or an occupant of the tenant stops the conduct or activity and causes no further issues, within 7 days of being received the notice, then the notice of termination is void.
Evicting tenants for too many persons living in the rental unit
A landlord may provide a tenant with a notice of termination if there are too many persons living in the rental unit. If the number of persons living in the rental unit exceeds the limitations of the rental unit, contravenes health and safety standards as well as housing standards required by law, then a notice of termination may be served by a landlord. This notice provides tenants with 20 days from the day they receive the notice, to move out of the unit. However, if within 7 days, the tenant removes the excess number of persons from the unit and complies with health and safety standards, or housing standards, the termination notice is void.
Evicting tenants for impairing the safety of others
When a tenant, an occupant who lives with the tenant, or a guest of the tenant carries out an activity to threatens or affects the safety of other tenants or landlord in the residential complex, a notice of termination of tenancy must be served by a landlord to a tenant. The notice provides the tenant with 10 days to leave the rental unit and end the tenancy. As soon as the landlord serves the notice, they can then proceed to file an application with the Landlord and Tenant Board to evict the tenant(s), or wait to see whether the tenant(s) move out of the rental unit by the termination date set in the notice of termination of tenancy. When it comes to safety of others, this notice does not give a chance to the tenant to rectify their behavior. Like most notices, this notice will not be void if the dangerous activities are stopped by the tenant(s).
Evicting a tenant for Landlord’s Own Use
A landlord is allowed to evict their tenant if the landlord requires the rental unit for the following reasons:
Their own use;
The use of an immediate family member. For example, children, wife, father, etc.;
And the use of a person who will provide care services to the landlord or to members of the landlord’s immediate family, who is also living in the same residential complex.
However, since September 1, 2017, a landlord has to compensate a tenant in an amount that equals to one month’s rent, OR offer the tenant another rental unit that is acceptable by the tenant, if the landlord serves a notice of termination for the uses mentioned above. Once the notice is served to the tenant, the landlord can then proceed to file an application with the Landlord and Tenant Board for an order to evict the tenant. However, when it comes to corporations or companies that own residential complexes, this section does not apply to them. Only an individual is allowed to evict tenants for their own use. Corporations are not permitted to evict tenants for the above-mentioned uses.
Evicting tenants for selling the house
A tenant can be evicted if their landlord sells the home. When it comes to a landlord’s residential property that was rented out, they can only evict the tenant if the new owner of the property will be using the unit for their own use, their immediate family members or someone will be providing care for them and their family members. However, if a landlord is selling their home and they have a tenant living in the property, they can keep the tenant IF the new owner would also be renting out the rental unit. The eviction will depend upon whether the new owners will be living in the property or whether it will be rented out. Once the landlord for eviction serves a notice, they can proceed to file an application with the Landlord and Tenant Board for an order of eviction.
Evicting tenants for demolition, conversion or repairs
A landlord may give notice of termination of tenancy if the landlord required the rental unit to carry out the following:
Demolish it;
Convert it to use for a purpose other than residential premises;
And do repairs or renovation that are so extensive that they require a building permit and vacant possession of the rental unit.
For this notice of termination, the landlord must provide the tenant with 120 days to evict the rental unit after the notice is served. A tenant may end the tenancy earlier than the 120 days provided by the notice, if they wish to. In this scenario, the landlord must compensate the tenant in an amount that equals to three months rent OR offer the tenant another rental unit acceptable by the tenant.
A landlord cannot lock a tenant out of their rental unit
A tenant has the right to stay in the rental unit until a landlord is able to get an order from the Landlord and Tenant Board for eviction. It is illegal to lock tenant(s) out of their rental units or the building. If a landlord is convicted of carrying out such activity, they can be fined up to $25,000 if the landlord is an individual, or $100,000 if the landlord is a corporation.
It is important to know your rights, and what steps to take whether you are a landlord or a tenant. If you think you need help in a situation that relates to any of the above mentioned scenarios, reach out to a legal representative and get proper guidance before you take any steps.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
What Different Kinds Of Damages Are There In Litigation?
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
In any kind of litigation, a person may be entitled to damages. When it comes to damages, it usually means monetary awards. When a person is injured or in a situation where they have been wronged in one way or another, they are entitled to different kinds of damages from the court. To simply put, damages are the amount of money that is claimed by a party or is ordered to be paid to a person, including a corporation, as compensation for loss or injuries.
The main types of damages that are available to litigants
General (Non-Pecuniary) Damages
This is for damages for non-monetary losses suffered by a plaintiff. While these damages are not capable of exact quantification (e.g. pain and suffering, disfigurement, mental distress, loss of enjoyment of life, and loss of amenities), a party is still required to provide the necessary evidence upon which the court can award these damages. These damages are for past, present and future losses. Courts look at evidence that prove that a person has lost the ability to do certain things as a result of their injury or suffering.
Pecuniary Damages
These damages are also called special damages. These kinds of damages can be quantifiable in monetary loss. Pecuniary damages can result to any plaintiff in addition to non-pecuniary damages. For example, loss of income, medical expenses, cost of repairs, etc., can be categorized as such. If a person was in an accident, and they lost a limb as a result, they would be entitled to non-pecuniary as well as pecuniary damages.
Nominal Damages
Token damages awarded by the court to redress a violation of a legal right that the law deems necessary to protect even in the absence of actual harm or proof of harm or loss. Nominal damages are usually very small in amounts. Not often legal fees are covered and awards for damages are not high either. So, why would someone still file for nominal damages? It is mostly because they are usually seeking a court’s acknowledgement that their rights have been violated. These situations are usually because the plaintiff just want to establish grounds to take further legal action or they simply want to have a legal record that they were mistreated or wronged.
Compensatory (or Actual) Damages
Damages for the actual loss sustained by the plaintiff that will effectively place the plaintiff in the position that it would have occupied had the wrong not occurred or had the contract been performed. They are intended to compensate the plaintiff of a lawsuit with enough money to cover the actual amount of the injury or loss. Actual damages are awarded to replace the exact amount of loss as a result of an incident. For example, medical bills, rehabilitation expenses, physical therapy, lost wages, medical treatments, property lost or repaired, nursing home care, etc. To be entitled to actual damages, a plaintiff must be able to prove that they have suffered such losses and the monetary amount of the loss. It is the most common type of damage in litigation.
Punitive (or Exemplary) Damages
Non-compensatory damages to punish a defendant for its shockingly harsh, vindictive, reprehensible, or malicious behaviour. It is usually awarded in addition to compensatory damages. It is awarded by a judge when it is proven that the defendant willingly and intentionally inflected injury or harm on the plaintiff. Many provinces have a limit to how much can be awarded as punitive damages as the calculation can be difficult to predict.
Aggravated Damages
Damages in recognition of and to compensate a plaintiff for, suffering intangible damages such as mental distress, pain, anguish, grief, anxiety, humiliation, indignation, outrage as a result of the defendant’s actions. The damage award is intended to compensate for the aggravation of the injury by the defendant’s misbehaviour. It is not usually awarded to the defendant to please the plaintiff, but more because to make sure that there is some sort of punishment given to the defendant because of their behaviour. There are two basic requirements of punitive damages: (i) the defendant’s conduct must be reprehensible; and (ii) punitive damages must be rationally required to punish the offending party and to meet the objectives of retribution, deterrence, and denunciation.
Liquidated Damages
These are the damages agreed upon by parties entering into a contract, to be paid by a party who breached the contract to a non-breaching party. These are available in cases where damages may be hard to foresee. It must be a fair estimate of what the damages might be if there is a breach. It can be used when it is hard to prove the actual harm or loss caused by a breach. The liquidated damages should amount to the actual damages that results due to a breach. Liquidated damages are most common in construction contracts and serve as a useful risk management mechanism.
In many cases, one or more type of damages may be awarded as a result of multiple different kinds of losses and injuries. Understanding what kind of loss you have suffered is an important step before you decide to take the route of litigation. Consulting an attorney or a paralegal is advised before filing a claim, to make sure that you get the most out of what you are entitled to as a result of your loss and suffering.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Section 718.1 of the Criminal Code
Author: Anika Helen - Paralegal Edited By: Ryan Carson
The purpose of proportionality is based on fairness and just. Proportionality is imperative when it comes to sentencing a person who has been convicted of a crime. It is important to prevent unjust punishment for crimes that can be dealt with rehabilitation or other means of help.
According to the Criminal Code, Section 718.1 states that fundamental principle that the sentence must be proportionate to gravity of offence and degree of responsibility of offender.
Proportionality is the governing principle when it comes to sentencing. The sentence should not be greater than the offender’s moral liability. This is important because it ensures that there is justice for the offender. Every case is different and has its own set of facts and specific situation that need to be considered during the sentencing process. Proposing sentence and deciding on a sentence is not easy for anyone, but it should be done with careful consideration as it can change someone’s entire life. In provincial court matters, there are many offenders that come in everyday for petty crimes and receive sentences that affect their lives to a greater extent than we think. A sentence should be fair and just so that the offender can learn from it and not have their lives destroyed by a mistake. And sometimes, that is all it is. A mistake. Sometimes, people make mistakes and pay a higher price for it than they should.
Section 718.2 states – “A court that imposes a sentence shall also take into consideration the following principles:
A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing,
Evidence that offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or
Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances;
A sentence should similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
It comes down to the concept of Restorative Justice. It is a recent concept in our justice system that puts emphasis on dealing with the wrong done to a person and community. The purpose of this is to shift the focus from an offender to helping and healing victims of the offender. Programs exist to repair relationships with the community. It involves the voluntarily participation of the victim, the offender and the members of the community to have discussions. The purpose is to talk, fix the damage and restore the relationships in the community to prevent further crimes from happening. The key is for the offender to accept and acknowledge responsibility for the crime committed and the harm done to the victim. Options like group conferencing, reconciliation panels, healing circles and victim-offender mediation are available these days to help the community and the people in it.
It is important to understand this section of the Criminal Code because sentencing is a huge part of the justice system. While it is imperative that offenders get proper punishments for what they have done, it is also important that sentencing should be proportionate to the level of crime committed. Sometimes, lives can be healed and changed with a bit of consideration and sympathy. New and young offenders can learn from their mistakes without having to give up on their lives.
Articles written by Anika Helen:
Common Summary Conviction Offences Impact of COVID-19 on Landlords and Tenants Who is a Litigation Guardian and What Are Their Duties?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Common Summary Conviction Offences
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
“Summary” means in a quick and simple manner. Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fees. The penalty for these offences is found in s.787(1) of the Criminal Code, which provides a maximum punishment of a $5,000 fine or a term of imprisonment of not more than two years less a day or both.
It is extremely important to read the Code in detail for each offence. For every offence, the Code has listed what the Crown has to prove beyond a reasonable doubt. As with all offences, the Crown must prove both actus reus and mens rea of the offence beyond a reasonable doubt. That is, the act or the omission of the offence must be proven as well as the criminal intent. The accused must have had the mental capacity and the intent to commit the offence. The offence cannot have been the result of an accident. Therefore, the usual defence in criminal cases is a lack of intent. However, the intent may be satisfied by the intent to commit the act rather than by the intent to do something wrong.
What are the most common types of summary conviction offences?
Causing a Disturbance – conduct that disturbs public peace and order in or near a public place is an offence according to the Code. The conduct may be fighting, shouting, singing, using insulting or obscene language, loitering, being drunk, discharging firearms, or impending harassing or molesting other persons. To make out a case, the Crown must prove that the accused was not in a dwelling home and was engaging in one of the listed acts. The Crown also must prove that the accused was in or near a public place and someone was actually disturbed by the acts listed.
Trespassing at Night – Loitering or “prowling” on another person’s property without permission and without an excuse. Loitering means wandering with no precise definition and prowling includes a notion of evil. A prowler does not act causally, but with a purpose. In this case, the Crown does not need to prove that the accused intended to commit a specific evil act, but only that the accused person was loitering and prowling intentionally on another person’s property without an excuse. This offence is charged along with another offence, such as theft under $5,000 or possession of a break-in instrument. For example, a person might be charged with trespassing at night when the person entered a vehicle in a driveway to steal property from the vehicle.
Taking a Motor Vehicle Without Consent – “Joy riding” is the common term for this offence. This requires that the motor vehicle be taken without the owner’s consent. A person can be charged with this offence even if they are just a passenger in the vehicle that has been taken without consent. Possessing a stolen vehicle is an offence regardless of whether a person stole it or not. It is assumed that if a person has possession of a stolen vehicle, that it is the person themselves who stole the vehicle. The only defence available in a scenario where someone has possession of a stolen vehicle is that they had no idea that the vehicle was stolen.
Fraudulently obtaining food, beverage or accommodation – s. 364(1) of the Code states that every one who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction. A common example of this is, not paying a restaurant bill. For this offence, the Crown must prove that the person intended not to pay for food, beverage or accommodation stolen.
Transportation Fraud – it is a criminal offence to obtain transportation in a fraudulent way. This means that any free or discounted ride obtained by intentional deceit or falsehood can lead to these charges. This offence carries a penalty of up to six months in jail and a criminal record. An example of this offence includes not paying for public transportation, such as TTC or Go Transit. However, the fraud must be intentional. A mistake can be forgiven by the court unless the person intended not to pay.
Attempts and Accessories After the Fact, Summary Conviction – anyone who attempts to commit a summary conviction offence or is an accessory after the fact to such an offence is also guilty of a summary conviction offence. An accessory after the fact is defined in s.23(1) as one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling them to escape. A common example of this would be helping someone to hide to get away after they have robbed a bank or stolen a vehicle.
When charged with a summary conviction offence, it is best to reach out to a criminal lawyer or a paralegal who has experience in the field. Every situation has different circumstances. It is ideal to get help from someone who is experienced rather than defending one’s self alone. Sometimes, a mistake or an unfortunate situation can lead to these charges where there was no intent. A legal representative would be able to defend a person in those circumstances, so that the person’s record does not get tainted because of a mistake or an act they did not commit.
Articles written by Anika Helen:
Impact of COVID-19 on landlords and tenants Who is a litigation guardian and what are their duties?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
.Who is a Litigation Guardian and What Are Their Duties?
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
Litigation is a process that may not be known to many people. It is tiring, complicated and time consuming, and not to mention, it takes money to go into litigation. It can be especially difficult when a claim involves a party with minors and the disabled. There are three types of parties under disability according to r.1.02(1) of the Rules of Small Claims Court.
1. Persons under the age of 18 years old are considered to be minors.
2. Mentally incapable in respect of an issue in the action, whether the person or party has a guardian or not; The term mentally incapable is defined within the meaning of s. 6 (incapacity to manage property) or s.45 (incapacity for personal care) of the Substitute Decisions Act, 1992.
3. An Absentee: The term absentee is defined in s. 1 of the Absentees Act as a person who, having had his or her usual place of residence in Ontario, has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.
2. Mentally incapable in respect of an issue in the action, whether the person or party has a guardian or not; The term mentally incapable is defined within the meaning of s. 6 (incapacity to manage property) or s.45 (incapacity for personal care) of the Substitute Decisions Act, 1992.
3. An Absentee: The term absentee is defined in s. 1 of the Absentees Act as a person who, having had his or her usual place of residence in Ontario, has disappeared, whose whereabouts is unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.
Rule 4 of the rules governs claims by or against a person under disability shall be commenced or continued by a Litigation Guardian (r. 4.01(1)). Though a minor can begin an action not exceeding the amount of $500, an action against a person under disability must be defended by the defendant’s litigation guardian, according to r.4.02(1)).
So, what is a litigation guardian? A litigation guardian is an officer of the court who represents the person under disability in a limited sense. A litigation guardian is not a party to the action and is not master of the suit. There are several duties of a litigation guardian.
A litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests. A litigation guardian is allowed to do anything in a proceeding that the party would usually be required or authorized to do so. If a litigation guardian consents to any departure from ordinary course of practice, they must need approval of the court.
Any money payable to a person under disability as a result of an order or settlement must be paid into court, unless a Judge states otherwise. The litigation guardian is not entitled to receive any compensation, and is liable to account for any money they receive. A litigation guardian can have no interest in the party’s cause of action or the outcomes of the action.
A litigation guardian is required to not only protect the person under disability and their interests but also protect other parties and the court. They are required to be competent so that they are able to take steps in the proceedings, instruct the legal representative, responsible for costs, and to ensure that judgments are respected and performed. A litigation guardian is also expected to protect the court though efforts to prevent an abuse of the court’s process by or against a person under disability.
Issues related to disability and the need for a litigation guardian arise commonly when minors sue as plaintiffs in proceedings. The most common cause of action is usually personal injury cases. In situations like these, the parents or other relatives of the minor tends to act as the litigation guardian. However, there are times when there could be conflict of interest; where the parents or the relatives are involved in the incident that caused the claim to begin with. For example, in a car collision where a child was injured and a parent was driving the car. The child can sue the other driver as well as their own parent who was driving the car for negligence. In this case, the parent who was driving the car would not be allowed to act as a litigation guardian. A paralegal or a lawyer would also not be allowed to represent both parents and the child unless a waiver is signed by both the parents as well as the child that they want the same legal representative. And often times, that is not the case.
To act as a litigation guardian in an action, a person must consent to it. This can be done by filling out Form 4A of the Small Claims Court. Who may be a litigation guardian? Generally, any person who is not under disability may act as litigation guardian, subject to r.4.03(2) and r. 4.03(1). In some unfortunate cases when there are no available persons to act as a litigation guardian for a child, a Children’s Lawyer shall be the litigation guardian.
When a minor or disabled is being sued and they have no litigation guardian, the court may, after notifying the proposed guardian, appoint as litigation guardian any person who has no interest in the action contrary to that of the defendant. If an action has been brought against a defendant under disability and has not been defended by a litigation guardian, the court may set aside the noting of default judgment against the defendant on such terms that are just and fair and also set aside any step taken to enforce the judgment.
It is important to find the right litigation guardian that has the best interest in mind for the child. Failure to appoint a litigation guardian is an irregularity but it does not invalidate a proceeding. This can be fixed by appointing one. If an action has been commenced and it appears that there is no litigation guardian for a minor in the action, then the action should not proceed further until one has been appointed.
Where an action is commenced without a litigation guardian, the paralegal or the lawyer commencing the action may be personally liable to pay the defendant’s costs even if the legal representative was unaware of the legal disability of the plaintiff. However, legal representatives who acted with a bona fide belief and were not negligent are not awarded costs by the court.
Removal of Litigation Guardian
There are three scenarios where a litigation guardian may be removed from an action:
1. When a minor reaches the age of majority. In other words, when the child turns 18 years of age. 2. When a party is no longer under disability. For example, someone sick gets better and are able to make their own educated decisions.
3. And finally, when a court determines that the litigation guardian is not acting in the best interest of the child/disabled. For example, there can be a conflict of interest. In this scenario, the court can appoint a Public Guardian and Trustee or a Children’s Lawyer.
There are three scenarios where a litigation guardian may be removed from an action:
1. When a minor reaches the age of majority. In other words, when the child turns 18 years of age. 2. When a party is no longer under disability. For example, someone sick gets better and are able to make their own educated decisions.
3. And finally, when a court determines that the litigation guardian is not acting in the best interest of the child/disabled. For example, there can be a conflict of interest. In this scenario, the court can appoint a Public Guardian and Trustee or a Children’s Lawyer.
Litigation can be confusing and it can be hard to understand the rules and regulations of a proceeding. It’s always helpful to consult a legal representative so that anyone commencing an action can be fully informed about what their options are and the next steps. When it comes to minors and the disabled, it is even more important to make the right decision to make sure they are protected and represented the way they deserve.
Impact of COVID-19 on Landlords and Tenants
Author: Anika Helen - Paralegal
Edited By: Ryan Carson
What has changed for landlords and their tenants in the midst of Covid-19?
The Covid-19 crisis had a significant impact on our economy and still continuing to do so. The government had previously decided to close all non-essential businesses to stop the spread of the virus. It has left a significant amount of people with no jobs. According to IPSOS, one in three (36%) Canadians say they have been laid off, on reduced hours/pay (13%), or have shuttered their small businesses (5%). In addition, three in ten (31%) Canadians have less than a week savings to pay for bills if no income is coming in. As a result, many are struggling to make rent payments on time or in many cases, are not able to pay rent at all.
Though there is hope that we will be able to return to normal very quickly after things start to re-open, there will be people who will not be able to get their jobs back right away. Even though, the economy will recover fairly quick, not everyone will be able to get back on their feet instantly. The government have implemented certain changes that is supposed to somewhat help tenants and landlords until the pandemic is over.
Changes to the Eviction Process
Tribunals in Ontario have suspended all eviction-related activity. No renter households are currently at imminent risk of eviction for non-payment of rent. However, while evictions are stopped for now, the current expectation is that tenants will eventually have to get caught up on rent. A landlord is free to give written notice to their tenant; however, the tenant does not have to move out. Property owners are not permitted to lock-out tenants on their own. Only the law enforcement is permitted to do so. Tenants are encouraged to contact the Province’s Rental Housing Enforcement Unit in case their landlords have locked them out of their rental units. The government urges people to pay rent if they are able to. People who were not laid-off or still have the ability to earn, should be paying their rent. Tenants are not encouraged to not pay rent. If you are able to, you should be paying your rent without undue hardship.
Possible Solutions for Landlord
Because Tribunals in Ontario are not allowing landlords to evict their tenants anymore, there is not much a landlord can do at this point. Unfortunately, landlords have to be patient and understanding. While we are all aware that landlords are facing financial hardship as well due to mortgage payments, certain financial institutions are offering mortgage deferrals up to a certain point during this pandemic. Landlords are encouraged to get in touch with their financial institution to seek any help available to them.
As for dealing with tenants not being able to pay rent, landlords should have a discussion with their tenants and agree to reduce rents or defer payments where possible. As mentioned above, tenants are not going to be allowed to not pay rent and not make up for those non-payments. Landlords should get into agreements with their existing tenants that allow tenants to pay back their rent arrears in small increments within a defined period of time. For example, if a tenant arrears in the amount of $5,000, the landlord and tenant can agree that when the tenant starts paying rent again, they can pay extra $300-400 a month on top their rent until the $5,000 have been recouped by the landlord. Tenants might not agree to a specified amount but landlords and tenants should come to an agreement together with an amount that works best for both parties.
Unfortunately, tenants are not always able to keep their side of a promise. If a tenant stops paying their incremental amount, they are breaching the repayment agreement. At that point, the landlord can and is permitted to file an application with the Landlord and Tenant Board to obtain an order for eviction. The application can also include the repayment of arrears. If a tenant does not leave after an order has been obtained, a landlord can have a sheriff remove the tenant from the rental unit. If the tenant fails to pay the repayment of arrears, the landlord must enforce the order with the help with small claims court.
Entering a Rental Unit and Physical Distancing
Before the pandemic, a landlord was permitted to only enter a tenant’s unit in specific circumstances. In most cases, the landlord must:
Give the tenant 24 hours written notice
State what day and time they will enter (between the hours of 8 a.m. and 8 p.m.)
State the reason for entering the unit
There are certain special circumstances such as emergencies where the landlord can enter the unit without notice and the tenant cannot refuse to let the landlord in. Due to Covid-19, landlords are encouraged to request entry only in urgent situations and strictly follow the physical distancing guidelines.
In conclusion, both tenants and landlords are facing unusual circumstances in the midst of this pandemic. However, the above-mentioned changes will aid tenants and landlords with their specific situations. If a tenant or a landlord is facing such hardships, they should seek legal consultation or help to guide them in the right way. There are free legal clinics available to tenants as well as landlords. Seeking help and getting the correct information in this situation is the first step to recovering from this crisis.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
.To Tenants and Landlords during COVID-19 ...
With the current environment, tenants and landlords are in the same boat when it comes to rent. Tenants are worried about their inability to make rent; landlords are worried about their operating costs and many people from both parties find themselves unable to meet the obligations of their contracts.
Currently, no new eviction orders will be issued until further notice and sheriff’s offices will postpone any scheduled enforcement of current eviction orders.3
Tenants who are able to pay their rent must do so, to the best of their abilities. If not, an honest conversation between a landlord and tenant is often the best first step in dealing with this challenging problem. With this conversation, deferring payments is the most common approach at this moment. Looking into the future of lease agreements due to COVID-19, we can perhaps start to see ‘pandemic clauses’ become a standard feature of leases and agreements.1
In the meantime, here is a list of short-term solutions that landlords may consider:
• Basic Rent abatement or deferral.2
• Basic Rent suspension for defined periods i.e. 3-6 months or longer depending on the nature of the tenancy.2
• Basic Rent deferrals for a defined period and a corresponding increase of Basic Rent at a point in the future to make up for a Basic Rent deferral.2
• Either eliminating or reducing the obligation to pay Basic Rent and replacing it with the requirement to pay Percentage Rent for a defined period of time. A switch to paying Percentage Rent is similar to a "pay what you can" approach.2
• Less common, is abating or suspending both Basic Rent and Operating Costs. Typically, landlords like to recover at least their out of pocket expenses such as realty taxes, insurance, utilities still and maintenance costs.2
• Reduction or elimination of administrative fee and/or management fee component of operating cost charge.2
• Reduction or elimination of promotional and marketing fees.2
• Reduction of services offered and performed at the property to effect a reduction in operating costs to be charged to tenants during the COVID pandemic crisis.2
• Depending on the size of the property, number of tenants and nature of the tenancies in a given property, a landlord can consider a reduction of services provided to tenants during the state of emergency, which would potentially reduce operating costs.2
• If the landlord would rather that a particular tenant vacate its premises, then the landlord may consider building in an automatic termination or an option to terminate for the landlord.2
• Ensure that any concession you agree to clearly provides the following2:
→ insert a consideration clause;
→ clearly state when the concession expires;
→ the lease is otherwise in full force and effect and remains unamended;
→ time shall continue to remain of the essence;
→ the concession is not a waiver of any other clause in the lease;
→ the indemnifier signs the amendment, if applicable.
• Basic Rent abatement or deferral.2
• Basic Rent suspension for defined periods i.e. 3-6 months or longer depending on the nature of the tenancy.2
• Basic Rent deferrals for a defined period and a corresponding increase of Basic Rent at a point in the future to make up for a Basic Rent deferral.2
• Either eliminating or reducing the obligation to pay Basic Rent and replacing it with the requirement to pay Percentage Rent for a defined period of time. A switch to paying Percentage Rent is similar to a "pay what you can" approach.2
• Less common, is abating or suspending both Basic Rent and Operating Costs. Typically, landlords like to recover at least their out of pocket expenses such as realty taxes, insurance, utilities still and maintenance costs.2
• Reduction or elimination of administrative fee and/or management fee component of operating cost charge.2
• Reduction or elimination of promotional and marketing fees.2
• Reduction of services offered and performed at the property to effect a reduction in operating costs to be charged to tenants during the COVID pandemic crisis.2
• Depending on the size of the property, number of tenants and nature of the tenancies in a given property, a landlord can consider a reduction of services provided to tenants during the state of emergency, which would potentially reduce operating costs.2
• If the landlord would rather that a particular tenant vacate its premises, then the landlord may consider building in an automatic termination or an option to terminate for the landlord.2
• Ensure that any concession you agree to clearly provides the following2:
→ insert a consideration clause;
→ clearly state when the concession expires;
→ the lease is otherwise in full force and effect and remains unamended;
→ time shall continue to remain of the essence;
→ the concession is not a waiver of any other clause in the lease;
→ the indemnifier signs the amendment, if applicable.
Assistance for Tenants
If you need help financially you can:
• contact your local service manager
• apply for COVID-19 emergency assistance
• access federal government programs
Assistance for Landlords
Landlords may wish to:
• talk to their municipality about help with property taxes and municipal service fees.
• inquire with their mortgage lender about mortgage payment deferrals
• investigate federal government programs
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1Hinton, K., & Mckenzie, R. (2020, April 1). 5 tips for handling commercial leases and contracts during COVID-19 and beyond. Retrieved April 20, 2020, from https://www.bcbusiness.ca/5-tips-for-handling-commercial-leases-and-contracts-during-COVID-19-and-beyond. 2Lanteigne, J., & Rosen, S. D. (2020, March 26). COVID-19 (coronavirus) advisory: Commercial landlord survival guide. Retrieved April 19, 2020, from https://gowlingwlg.com/en/insights-resources/articles/2020/covid-19-commercial-landlord-survival-guide/ 3Ministry of Municipal Affairs and Housing. (2020, March 28). Renting: changes during COVID-19 (coronavirus). Retrieved April 19, 2020, from https://www.ontario.ca/page/renting-changes-during-covid-19