News & Views

Ontario’s Standard Form Lease - Moving Towards Simplicity
November 15, 2018

Ontario’s Standard Form Lease - Moving Towards Simplicity

Written by Gina Putman

As of April 30, 2018, the Ontario government took measures to streamline residential tenancy arrangements by implementing a new standard lease template to be used for most private residential rental units. The obligation to use this standard form applies to all types of landlords from individuals to property management companies and encompasses all types of residential units including single and semi-detached houses, units in apartment buildings, condominium units and secondary units such as basement apartments. 

The general rule is that the standard lease template must be used for all new residential lease agreements signed on or after April 30, 2018. Tenancies governed by special rules or which fall into partial exemptions under the Residential Tenancies Act, 2006 are exceptions to this general rule and do not require use of the standard template. Some of these exceptions are: care or retirement homes, co-operative housing, mobile home parks and land lease communities and most social and supportive housing.

The approach of the standard template is to use straightforward, easy to comprehend language to make it clear to both landlords and tenants what their rights and responsibilities are. It also helps to clarify fundamental lease terms such as the amount of rent payable and what utilities or services are included, special charges for parking or other services such as storage lockers, responsibility for maintenance and repairs, when the landlord may enter the rental unit and other special rules about the rental unit or the building.

The template requires completion of mandatory terms providing basic lease information which cannot be altered or removed from the lease agreement. In addition to the mandatory terms, the parties may choose to add additional terms in a schedule which are specific to the tenancy. Additional terms which are inconsistent with the mandatory terms or the Residential Tenancies Act are considered to be void or unenforceable. The long term hope is that this approach will: (a) reduce situations where landlords and/or tenants are forced to resort to Landlord and Tenant Board hearings to resolve lease disputes; and (b) reduce the frequency of illegal terms in leases.

All lease agreements signed on or after April 30, 2018 should employ the standard lease template. Where a lease signed on or after this date is not completed on the standard form, tenants may submit written notice to their landlord requiring delivery of the standard form lease. This requirement must be fulfilled by the landlord within twenty-one (21) calendar days of receiving the written notice. If the landlord fails to provide the standard form lease within this period, the tenant may withhold one month’s rent. If another thirty (30) calendar days elapses and the landlord still has not delivered the standard form lease, the tenant is entitled to retain the withheld rent. It is important to note that a tenant may not withhold more than one month’s rent and must continue to pay rent for the balance of their lease term, even if the standard lease is never delivered by the landlord. Tenants have certain rights to terminate their tenancy prior to the expiry of the term in circumstances where their landlord fails to deliver the standard form lease when required or if the standard form lease delivered by the landlord does not contain terms agreeable to the tenant.

Tenants cannot require the standard form lease if their lease agreement was signed before April 30, 2018 unless a new lease agreement with new terms is negotiated on or after April 30, 2018. Additionally, tenants who become month-to-month tenants after April 30, 2018 are not entitled to the standard form if their original lease was signed prior to April 30, 2018.

If you require additional information or a copy of the Standard Form of Lease, consult the Ministry of Municipal Affairs and Housing website. This website also provides a link to a guide available in multiple languages to help landlords and tenants understand and complete the standard form. Or please contact Gina Putman directly at gputman@fijlaw.com or 905 763 3770 x219

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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About the Author:

Gina Putman, focuses on acquisitions and dispositions of commercial real estate properties and portfolios as well as on secured lending transactions. She assists both institutional lenders and corporate borrowers.

Small Claims Court or Superior Court: Where to Begin?
October 15, 2018

Small Claims Court or Superior Court: Where to Begin?

Written by Robert A. Izsak

In 2007, the Civil Rules Committee requested a report on steps that could be taken to streamline procedures in civil litigation with a view to increasing accessibility, reducing costs and reducing delays.

In November 2007, the Honourable Mr. Justice Coulter Osborne produced the “Osborne Report” which included recommendations for changes to the civil procedures.

The Report recommended an increase in the jurisdiction of the Small Court to $25,000 which recommendation was implemented. However, to this day, many people, including lawyers, are unaware that there is no rule which requires a case to be commenced in Small Claims Court where the balance claimed is less than $25,000. Accordingly, a Plaintiff who is seeking payment of an amount less than $25,000 may commence his/her claim in the Superior Court of Ontario (the “Superior Court”).

There are pros and cons as to the choice of venue which must be taken into account when the amount claimed is less than $25,000. It should be noted that the jurisdiction of the Small Claims Court is limited to actions for the payment of money or the recovery of personal property where the balance in dispute is less than $25,000. More complex proceedings seeking injunctive relief or declarations of the Court, to name only a couple of examples, can only be brought in the Superior Court. As such, simple contract cases including unpaid invoices for services provided or goods purchased represent the majority of cases heard in Small Claims Court.

Representation

For the most part, in order to engage in proceedings in Superior Court, a party ought to be formally represented by a lawyer. A corporation that is a party to proceedings in Superior Court must be represented by legal counsel. Conversely, in Small Claims Court, parties are often unrepresented or in some cases, parties will retain a paralegal to represent them, as opposed to a lawyer. A licensed paralegal is permitted to fully represent parties in Small Claims Court, however a paralegal cannot attend to make submissions in Superior Court.

Cost

The cost structure associated with proceedings commenced in Superior Court is considerably higher than for proceedings commenced in Small Claims Court. There are rules applicable to both proceedings which provide that the losing party must pay, at least a portion, of the legal costs incurred by the winning party. In Superior Court, legal costs will often be incurred in the tens of thousands of dollars to fully litigate an issue and as such, litigation carries a real risk of financial loss particularly in the case of a loss, where the losing party must pay, not only their own legal costs but those of the victor as well.

In Small Claims Court, even in circumstances where a lawyer or paralegal represents the parties, the legal costs that can be awarded to the victorious party are severely curtailed by the Small Claims Court rules. As such, while the possibility of receiving a large costs award is significantly reduced in Small Claims Court, similarly, the risk of loss by way of an adverse costs award is considerably less.

As noted above, when a Plaintiff commences a Claim in Superior Court, when the amount claimed is less than $25,000 (i.e. the Claim could have been brought in Small Claims Court) the costs awarded to the Plaintiff if successful, will ordinarily be restricted to the lesser cost structure applicable to Small Claims Court proceedings, based on the rules set out in the leading cases on this issue and the practices adopted by the court registrars.

Efficiency

There are key differences when it comes to the efficient and timely completion of matters as between the two courts. The overwhelming majority of cases are either settled prior to trial or are otherwise disposed of by way of a Default Judgment, which occurs in situations where the Defendant does not serve or file a Statement of Defence.

For disputes involving simple contracts, the Small Claims Court can provides a quick and efficient means to proceed to a full trial of the issues. After pleadings (Claim and Defence) are exchanged, the matter will then proceed to a settlement conference within weeks or months thereafter and if the matter cannot then be resolved, the matter can be set down for trial and most Small Claims Courts in Ontario are scheduling trials within two to four months after the matter has been set down. Conversely, contested litigation in Superior Court will usually take considerably longer to work through the entire litigation process, which will include discoveries, with matters proceeding to trial in a time frame that is usually measured in years.

In respect of matters that are anticipated to be undefended, there are some notable advantages to proceeding in Superior Court. Supporting documents are not required to be appended to the Claim for it to be issued in Superior Court. Whereas, in Small Claims Court, the registrar, will not issue the Claim if the supporting documents are not included. Furthermore, the overall process to obtain Default Judgment can be considerably quicker in Superior Court.

Conclusions

In circumstances where the outstanding balance is less than $25,000, the choice of venue may have a large impact on the Plaintiff, as to the costs of litigation, the risks associated with litigation and the speed and efficiency by which the matter is ultimately determined or resolved. The decision as to choice of venue must be carefully considered between lawyers and their clients prior to entering the litigation arena.

If you would like additional information, please feel free to contact Robert A. Izsak directly at rizsak@fijlaw.com or at 905 763 3770 x211.

*The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.

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About the Author:

Robert Izsak, is a respected leader in the debt recovery sector. Combining a systematic approach with a sensitivity to the individuality of debtor issues, Rob provides unrivalled collection portfolio management and litigation support to financial institutions and large commercial enterprises.