Greanya Legal Services

  Service, Affordability, Dedication   

Blog

view:  full / summary

To Lease or not to Lease: Ontario Residential Tenancies Law

Posted on 4 July, 2015 at 13:50

By Daniel Greanya:


It is quite common in residential tenancies to hear both landlords and tenants speak about a “lease”. Depending on the circumstances, the lease is also a source of many misconceptions, and I am always amazed at what tenants and landlords agree to and what they think the state of the law actually is. Quite often, what the landlord and tenant think the law is has no correlation to what the law actually is. One issue that often comes up is if a residential tenancy needs to be established by a lease, and if so, what should the lease include.


Traditionally, residential tenancies law was based on the law of real property. Now real property law is very complex, and I do not want to go into it in detail. Under the law of real property, a tenancy involved a temporary transfer of title of real property from a landlord (who retained ownership) to a tenant (who has a right to occupy). This transfer of real property, like all transfers of real property had to be in writing as provided by the Statute of Frauds. In modern residential tenancy law, this principle has been abolished.


Under Section 2(1) of the Residential Tenancies Act, a tenancy agreement (also known as a lease) is defined as “a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a licence to occupy a rental unit”. Therefore as a result, the Act abolished the requirement of writing. Even though a tenancy does not need to be established in writing, it is still highly recommended. There are a great many issues which can be resolved by the parties if the issues are placed in writing prior to entering into a tenancy relationship. My point is that a tenancy does not need to be in writing, even though it is a good idea to prevent later conflict.


Even if a lease is in writing, this does not mean that the parties are bound be whatever they agree to and the lease says. It is a regular occurrence in residential tenancies law for the parties to write terms into their lease which are contrary to law and therefore void. For instance, many landlords insist on a one year lease and the signature of a new lease after the annual lease expires. This is a legal nullity, the Residential Tenancies Act says that a lease renews as a periodic tenancy at its conclusion (usually a month to month tenancy). The parties may agree on additional things, and may restate their rights under the Act in the tenancy agreement, but none of the lease’s terms may violate the Act.


The Residential Tenancies Act governs the relationship between a landlord and a tenant, and all of the provisions of the Act are implied terms in the tenancy. When negotiating a lease, both the landlord and the tenant should ensure that the lease complies with their rights and responsibilities under the Act. If the parties do not have a written lease, the substance of their oral agreement should also comply with the RTA. In some circumstances, the RTA does not apply to the relationship between landlords and tenants, but this is a topic for another blog post.



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, please contact Greanya Legal Services directly.

 

What is a Contract? Must it be Written?

Posted on 13 May, 2015 at 22:05

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.

 

Civil (Contract) Law claims: Construction & the Implied Term of Reasonable Quality

Posted on 4 May, 2015 at 19:25

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.

 

Landlord and Tenant Board Updated Forms

Posted on 15 April, 2015 at 19:40

The Landlord and Tenant Board has updated their forms.  For any forms that you need to file after April 1, 2015, make sure that you are using the correct updated form.

Later this summer, the Board will also assume the responsibility for service of applications on the respondant.

 

Limitation Periods: Is your time up?

Posted on 6 March, 2015 at 13:35

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.

 

Workplace Injury? Report it Early!

Posted on 25 February, 2015 at 19:00

 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.

The Landlord and Tenant Board now handles Cooperative Housing Evictions.

Posted on 25 June, 2014 at 19:50

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/


Rss_feed