Canadian winters can be extremely harsh and that usually comes with icy roads and sidewalks. Slipping and falling is a common incident that we all experience at one point or another.
Testamentary Capacity
Testamentary capacity is used to describe the mental state of an individual when executing their Last Will and Testament. As there is no clear definition of capacity, it is often described as a decision-specific, time-specific and situation-specific issue, meaning that capacity can vary from case to case
What Is Frustration Of Contract?
Rent Control In Ontario And What We Need To Know
Assignment of an Agreement of Purchase and Sale
Aggravated and Punitive Damages
In many wrongful dismissal cases, employees may be entitled to what is known as aggravated and punitive damages. Aggravated damages are compensatory in nature and often require the employer to have engaged in bad faith during the employee’s dismissal, and where the employer’s bad faith results in actual harm to the former employee.
Important Clauses in a Letter of Intent
Letters of intent, also known as an LOI, is a document used to negotiate between a buyer and a seller in various types of transactions. LOI’s outline the specific terms of a potential deal that will occur at some point. LOI’s are typically used to discuss aspects in the contract that can still be negotiated.
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.
Leaves of Absence in Ontario
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In Ontario, employees are afforded certain rights under the Employment Standards Act (ESA), including leaves of absence. A leave of absence is an employee’s right to temporarily stop work and return to their job-protected position within the workplace. Although there are many different types of absences, for the purpose of this article, the most common absences will be discussed, along with an employee’s rights while on such leaves.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
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
1 Government of Ontario, ‘Pregnancy and Parental Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act/pregnancy-and-parental-leave#:~:text=Pregnant%20employees%20have%20the%20right,of%20unpaid%20time%20off%20work.&text=Birth%20mothers%20who%20took%20pregnancy,to%2063%20weeks'%20parental%20leave.2 Ibid.
3 Ibid.
4 Ibid.
5 Government of Ontario, ‘Sick Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave
6 Government of Ontario, ‘Family Caregiver Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/family-caregiver-leave
7 Ibid.
Separation Agreements and the Transfer of Matrimonial Property
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
A separation agreement is a legal document that works to outline the terms of a separation between the parties. More specifically, the agreement will typically outline the couple’s shared assets and debts, and describe how they are to be divided between the parties upon separation. In this context, the separation agreement should also outline what the parties have agreed will happen to the material property. Many of these agreements will provide for a buyout option, where party A will buy party B out of their interest in the matrimonial property. Having a binding separation agreement in place is the first step of this process.
Once a separation agreement has been executed by the parties, both should then look to retain their own real estate lawyers to deal with transferring the title of the matrimonial property. One of the main reasons that each party is required to retain their own independent real estate lawyer is so that each party receives independent legal advice pursuant to their own unique interest in the title transfer. Each party’s lawyer will work to explain to their client the legal consequences of executing the transfer of title. The interest of each respective party depends on which side of the transfer they find themselves on.
The party being bought out of the property will work closely with their lawyer to ensure they receive prompt payment of the buyout amount outlined in the agreement proper to signing over their interest in the matrimonial property.
Conversely, the party who will have the property transferred solely into their name will work with their lawyer to ensure that they properly provide the buyout amount in exchange for sole title to the property, along with other accompanying documentation. This additional documentation will state that the other party has indeed received independent legal advice and fully understands the consequences of executing the agreement at hand.
Regardless of which side of this process you find yourself, it is important to retain the services of an experienced real estate lawyer. Your lawyer will ensure that the agreement is followed meticulously, and advise you of the various ramifications resulting from the execution of the agreement.
Articles written by Warren Gilmore:
Estate Planning for Reconstructed Families
Sale of Canadian Property by a Non-Resident
The Prudent Real Estate Investors Checklist Alternative Approaches To Purchasing A Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax
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.
Estate Planning for Reconstructed Families
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
The dynamic of the modern Canadian family continues to change. An increasing number of Canadians find themselves entering into second marriages or common law relationships. In many instances, these subsequent relationships involve individuals coming together with children from prior marriages, or having children within these new relationships. These blended family dynamics tend to complicate matters as far as estate planning goes, making it essential to have a properly constructed plan in place.
For starters, upon entering into a subsequent marriage any preexisting Will you may already have in place will become null and void. Unless of course this Will specifically accounts for such an event. Further, in the instance of divorce, your ex-spouse can no longer legally be deemed a beneficiary or an executor of your Will. However, the remaining provisions of the Will, unrelated to your spouse and the divorce will remain legally valid and intact. Further, if you have any subsequent domestic agreements currently in place, such as a cohabitation agreement, a separation agreement, or a marriage contract, any provisions included in these agreements will trump any conflicting aspects of a previously executed Will, should the documents ever conflict.
When constructing a new estate plan with a blended family it is important to take into consideration the concerns outlined above. Additionally, putting together an effective estate plan for this family dynamic has its own set of unique considerations. First, each partner in the new relationship should take time to consider what individuals would be considered their own individual financial dependents. This would include any children from previous relationships that either partner plans to bring into this newly blended family. Second, it is important to consider the nature of any property you may currently own. Specifically, how is title to property held, jointly, solely? This will determine how any future interests to said properties will be outlined in the Will. Third, will it be your intention to have your Will and its directive be in sync with that of your new partner? Or do you want it to be unique to your own individual wishes? This is something that is often over looked by individuals in this situation. If you wish for your Will to depart from the wishes of your partner it becomes necessary that each of you retain your own independent lawyer. This will ensure that each of your intentions are accurately and legally reflected in your own individual estate plan.
Whichever route you elect to take, it is always prudent to retain the services of an experienced estate lawyer. Their expertise will allow them to make sure that your wishes are documented in a manner that is accurate, and more importantly enforceable. Having this type of an experienced professional in your corner becomes even more critical when dealing with the complexities involved in a reconstructed family.
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.
Valid, Void and Voidable Contracts
Author: Sarah Nadon – Law Student
Edited By: Ryan Carson
What makes a contract voidable?
Voidable contracts have elements within the contract that are enforceable, therefore on their face, they appear to be valid. However, they also contain elements that make is possible for one or both parties to void the contract entirely. The contract is considered to be valid if the injured party opts not to take action and not render the contract void.
Reasons a contract may be voidable:
Failure of one or both parties to disclose a material fact,
Fraud,
Duress,
One party is legally incapacitated,
The contract contains unconscionable terms.
To enforce the voidable contract, one of the parties must exercise their right to render the contract void. But both parties have the right to enforce the contract. A void contract is different from a voidable contract because from the moment a void contract is created it cannot be fulfilled while a voidable contract can be performed and enforced as soon as the contractual defects are corrected.
What makes a contract void?
A void contract is a formal agreement that is illegitimate and cannot be enforced by law because it cannot be performed.
Reasons a contract may be void:
One party is contracted to do something impossible,
One party is contracted to do something illegal or against public policy,
The contract restricts an individual’s rights.
What makes a contract valid?
A valid contract creates a legal agreement between two parties. A valid contract contains an offer, acceptance and consideration as well as meeting of the minds and mental capacity, therefore parties are legally responsible for the performance of the contract. If one party breaches the contract, the other party may go to the courts in order to receive remedies. All elements of a valid contract are legal, enforceable and binding.
Elements of a valid contract:
Offer
Acceptance
Consideration
Meeting of the minds
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.
Co-Parenting In The Age Of A Pandemic
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
From the advent of the novel Coronavirus, now identified as Covid-19, many changes have been implemented. These include, but are not limited to, cancelled sporting events, transitions to online education, and the closure of jurisdictional borders. In all of this, some things have not changed, including navigating co-parenting for separated and divorced spouses. Although there has been a suspension of regular Superior Court of Justice operations, urgent family law matters are still being dealt with at this time.
Many questions arise regarding the safety of children, especially if one parent has an increased risk of exposure due to the nature of their employment. In the recent case of Ribeiro v Wright, the Ontario Superior Court provided some guiding principles on these issues. It was established that both parents must work together to show flexibility, creativity, and common sense during these times to ensure the physical and emotional well-being of the child.1
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Under normal conditions, if the payor parent has a change in financial circumstances, they can apply to the court to have them approve the support payment amount. However, as courts are temporarily suspended, a request for a temporary change in support payments may not meet the court’s definition of an urgent matter. Similarly, the courts in this situation have stated that support payments should be maintained in full, and arrangements between both parents should be made in the event the payor parent can longer do so.
This pandemic has brought family law issues into uncharted territories. The courts are faced with making decisions without any precedents to reference, and are endeavouring to ensure the safety and maintenance of the children until normal operations resume. Therefore, it is important for separated parents to work together during these times and come to mutual agreement that is in the best interest of the children.
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
1 Ribeiro v Wright (2020) ONSC 18292 Ibid
3 Ibid
4 Government of Canada CERB Statistics; https://www.canada.ca/en/services/benefits/ei/claims-report.html
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.
An Investment Conversation with Mark Baltazar from Peak Multifamily Investments
Ryan Carson and Mark Baltazar from Peak Multifamily Investments had a productive conversation about multifamily and commercial real estate investments that will be very informative not only for everyone, but especially first time investors!
Some topics included are:
Advice for first time investors
The ideal property type to invest in according to Mark
How has investing in multi residential changed since COVID-19?
With working from home now being more common, how will that affect the real estate market?
Have a question for Mark or want to know more about Peak Multifamily Investments?
Mark Baltazar Peak Multifamily Investments
Instagram: @mark_baltazar Instagram: @peakmultifamily
Facebook: Mark Baltazar Facebook: Apartment Building Investors Network
Sale of Canadian Property by a Non-Resident
Author: Warren Gilmore – Law Student
Edited By: Ryan Carson
If purchasing a property in Canada from a Non-Resident, the transaction will involve a unique set of tax concerns. It is important to have an understanding of your obligations, and to have them provided for in the Agreement of Purchase and Sale in order to avoid personal tax liability.
When a Non-Resident owner of property in Canada decides to sell, the CRA determines any yield in the value of the home that will be considered capital gains. As such, the CRA requires the Non-Resident Vendor to pay taxes on these gains. It is the responsibility of the Purchaser to perform a reasonable amount of due diligence to determine the residency classification of the Vendor. In conducting this due diligence, the Purchaser can request that the Vendor execute an “Affidavit of Residency.”
For the protection of the Purchaser, Agreements that involve these Non-Resident concerns usually include a clause that reads something to the effect of:
“The Purchaser is advised that the Vendors are Non-Residents of Canada and the Vendor's lawyer shall retain 25% of the purchase price in Trust until appropriate clearance certificates are issued by Revenue Canada. The vendor agrees to provide undertaking of such on closing.”
The Non-Resident Vendor is required to secure a clearance certificate from CRA before obtaining the entirety of the sale proceeds. This clearance certificate will outline how much of the sale proceeds are taxable, and are owed to CRA. While the clearance certificate cannot be applied for until all conditions have been fulfilled and the Agreement becomes binding, it is ideal to have this certificate in possession prior to the closing date of the transaction. This will allow all parties in advance to know exactly what taxes are owed, eliminating the need for a holdback. If this condition is not provided for and a clearance certificate is not obtained, the Purchaser will become the obligated party, and will be responsible for any taxes that CRA determines to be applicable to the transaction.
If a clearance certificate is not obtained before the closing date, the Purchaser and their lawyer should take the necessary steps to have the allotted portion of the sale proceeds remain in trust with the Vendor’s lawyer, pending a complete tax assessment from CRA.
The amount of the purchase price to be withheld is solely dependent on the nature of the subject property. If the subject property is determined to be non-capital, meaning that is was never used to produce income, and instead involved family residential use, then Section 116 of the Income Tax Act, provides that 25% of the purchase price is to be withheld. Alternatively, if the subject property is considered to be capital, and was used to produce income, the holdback allotment can increase to as much as 50% of the purchase price.
If this assessment reveals that no taxes are owed on the property, CRA will issue a clearance certificate, which permits the release of the sale proceeds that were being withheld. Conversely, if the CRA assessment revels that the transaction is indeed subject to taxes, then the amount owing will be deducted from the holdback amount. In total, this assessment period can take anywhere from 1-3 months to conclude.
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 Is Trademark Confusion?
Author: Sarah Nadon – Law Student
Edited By: Ryan Carson
Trademark confusion arises when one trademark is confused with another trademark and when the use of both trademarks would likely lead to the inference that the goods and services are produced by the same company or individual. Trademark confusion can lessen the value of the original trademark because consumers could associate the original trademark with the goods and services of the second trademark, which may be subpar to the original.
In the 2006 case, Mattel U.S.A. Inc. v 3894207 Canada Inc., 2006 SCC 22, the Supreme Court of Canada, declared that trademark confusion resulted from when a customer mistakes the goods and services associated with both trademarks, are from the same brand. In the Mattel case, a Montreal based bar and grill restaurant applied to register the trademark “Barbie’s” in association with the restaurant. Mattel, a famous toy company, owns the trademark “Barbie,” which is associated with the world-famous doll. Mattel opposed the application based on confusion. The Trade-marks Opposition Board rejected Mattel’s opposition as it was not likely that “Barbie’s” bar and grill restaurant would likely be confused with Mattel’s famous Barbie doll.
The Trademarks Act, RSC 1985,c T-13 provides that trademark confusion can be decided by a set of five enumerated factors:
6(5). In determining whether trademarks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including:
(a) the inherent distinctiveness of the trademarks or trade-names and the extent to which they have become known;
(b) the length of time the trademarks or trade-names have been in use;
(c) the nature of the wares, services or business;
(d) the nature of the trade; and
(e) the degree of resemblance between the trademarks or trade-names in appearance or sound or in the ideas suggested by them.
However, it is essential when applying the test, not to stick to the five enumerated factors. Considering all surrounding factors will provide a more accurate assessment for confusion as the application of the test is fact dependent.
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.
Corollary Relief
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act. However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.
Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).
For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.1 The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.
The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.
In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.
Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.
Articles written by Stacey Staios:
Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?
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.
Ask A Lawyer!
Recently, Ryan was able to sit down (virtually) with Matt McKeever, a Real Estate Investor and Entrepreneur to answer questions that viewers, like you, had about the real estate market and incorporating a real estate business.
Check out the information packed videos below!
Canadian Real Estate Lawyer Advice For First Time Buyers
Should I Incorporate My Real Estate Business? | Ask A Real Estate Lawyer
Is Wholesaling Real Estate In Canada Legal?
If you enjoy these videos, let us know! We will continue to produce informative content to help you in any way we can.
Have a question for or want to know more about Matt Mckeever?
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