A recent development has taken place in the realm of residential tenancies since our last blog about the exclusion of marijuana use in residential tenancies.
On April 30 2018, all new residential tenancies in Ontario must use the same standardized lease, which was created by the Ontario Government to simplify lease terms that everyone can understand. The Ontario Government also created the standardized lease to prevent landlords from including illegal terms in their leases, such as a “no pet” provision.
The standardized lease applies to residential lease agreements for single and semi-detached homes, apartment buildings and rented condominiums, but does not include care homes, mobile parks, land lease communities and most social housing. New standardized leases are currently being drafted for those tenancies, and will take effect sometime in the future.
Landlords must be aware that they now have additional obligations with the implementation of the new standardized lease. If a landlord fails to give a tenant a copy of the lease within twenty-one days of the commencement of the lease term, the tenant can withhold one months’ rent. If the Landlord provides the lease within that time, the tenant cannot withhold rent. However, if the tenant does not receive a copy of the lease ever, the tenant can terminate the tenancy by providing sixty-days written notice to the landlord. This is regardless of the amount of time remaining on the lease term.
Residential leases that are not on the new standardized lease forms and are entered into until April 29, 2018 will remain in effect and are enforceable. There is no requirement to sign the new standardized lease after April 30, 2018.
Real Estate Agents in Ontario and some Ontario Landlords use the OREA (Ontario Real Estate Association) Lease forms. These forms will no longer be able to be used after April 30, 2018. OREA has advised they are working with the Ontario Government to create an approved lease form that complies with the standardized lease requirements for their members to use.
If you enter into a lease that is not in the prescribed form on or after April 30, 2018, your lease will not be enforceable.
If you have any questions regarding the standardized lease, feel free to give us a call and we will be more than happy to talk to you about it.
Murray Brown, Paralegal
I started my career as a litigator and that remains about 70% of my personal practice these days. Our firm employs other lawyers who do not practice any litigation and focus on the document side of law.
When I started out, 25 years ago, most contracts I litigated on were complicated and used three or four big words, when one smaller word would do. Despite having been told in Law School we needed to embrace “plain English for Lawyers” there was little sign that anyone was actually doing that.
As my career evolved into more drafting of leases, contracts and other documents, I refused to continue to use old style precedents and these days I estimate approximately 40% of lawyers draft that way as well. Why do 60% of lawyers continue to use old style, long winded, extra words thrown in for no reason, documents?
I have a few theories, based on lawyers I have encountered over the past 25 years:
1. The lawyer is unsure of the law surrounding the document and is sticking to the precedent to ensure they don’t miss something.
2. The lawyer believes that lawyers must use complicated language to sound like a lawyer.
3. The lawyer learned English outside of Canada in a country that taught a more formal style of English than we currently use in Canada.
4. The lawyer is 100 years old and has no interest in changing their ways. OK, I’m kidding. The oldest practicing lawyer I’ve ever encountered was 86.
I don’t draft “old school” style. I draft using everyday words that capture the intention of the parties signing the documents. I want our clients to be able to confidently understand their documents, not just “hope the lawyer got it right”.
If your lawyer doesn’t draft in Plain English, ask why and if there is no good reason (or at least one that uses small words) come talk to us. We’re happy to help!
Inga B. Andriessen JD
As a firm that has clients that have head offices all over the country, and even in the US, we are often asked if we can assist them with matters where the jurisdiction lies within Ontario. There are many areas of law that our firm can assist our out of province/country clients (exception, if a matter’s jurisdiction is Quebec, you will need to retain a lawyer there to assist you).
When it comes obtaining a Judgment here in Ontario and the debtor has assets in another province, we can assist in obtaining a lawyer in that other province to have the Judgment recognized and enforced. Again, a Judgment obtained outside of Ontario can similarly be enforced here in Ontario.
Something that must be kept in mind is that each province has their own laws that govern certain things, for example: Employment Law.
Our firm handles Employment Law, and just recently held a Lunch and Learn on the changes that took effect on January 1, 2018, and changes that are forthcoming. However, a client that is not primarily in Ontario, may not be aware of the laws here in Ontario regarding employment. It is our job to ensure that a client follows the rules and regulations regarding their employees that are working for their company in Ontario.
It doesn’t stop there, even Estate Planning is different all across our country, and if you have assets in multiple provinces and countries, it needs to be addressed to ensure your Estate Planning complies with each jurisdiction.
Just because something is one way here in Ontario doesn’t mean it’s the same all over Canada. It’s our job to ensure that it gets done here properly, and let you know when something needs to be addressed in a different jurisdiction.
David Frum is a Canadian born, living in the USA, author who just released a book about Donald Trump that details his attacks on the pillars of Democracy in the USA. There has been a lot of press about this lately and it has all been focused on the USA.
Last week, Canada experienced another chipping away at our Canadian Democracy by our Federal Government and as lawyer, this one has me smokin’ mad.
In case you’re not Canadian, or have not heard, on February 9, 2018 a Saskatchewan farmer was acquitted of murder charges in the death of an Indigenous Youth on his property. This acquittal was by a jury of 12 non-Indigenous people, who listened to evidence presented to them for two weeks. The Jurors deliberated for over 30 hours. During the deliberations they re-heard testimony, at their request, and then returned with a not guilty verdict.
Canada’s Justice Minister, Jody Wilson-Raybould tweeted after the verdict:
” My thoughts are with the family of Colton Boushie tonight. I truly feel your pain and I hear all of your voices. As a country we can and must do better – I am committed to working everyday to ensure justice for all Canadians.”
This statement makes it clear that our Justice Minister believes that the verdict was wrong. Subsequent tweets from the Prime Minister have implied that the 12 jurors were racist.
This is political interference in the Judicial System. This is an attack on Democracy.
As lawyers we are bound by Rules of Conduct that specifically prevent us from making comments that would bring the administration of justice into disrepute. Our Minister of Justice and Prime Minster just did that.
Minister Wilson-Raybould should be removed from her role given the violation and the Law Society of BC should open a disciplinary investigation.
Inga B. Andriessen JD
The Canadian Federal Government is legalizing recreational marijuana use the year. The issue of marijuana use in rental units is an issue residential landlords need to be aware of.
The Ontario Provincial Government has indicated it will ban the use of recreational marijuana in public spaces and workplaces, allowing it only in private residences. The Province says that medical marijuana use will be permitted anywhere that cigarette smoking is allowed.
How does the legalization of marijuana affect the residential landlord? Any lease a landlord currently has in effect cannot be changed to reflect that marijuana use is not allowed. However, the Government advised that if your lease has a term that cigarette smoking is not permitted, that term will most likely also apply to marijuana use. It will be interesting to see how the Landlord and Tenant Board will interpret a no smoking term to marijuana use.
Many leases are unfortunately silent on smoking, which will become an issue if the landlord does not want marijuana use at their premises. It can be very expensive to repair a unit where a tenant was smoking marijuana in the unit.
When entering into a new lease with a tenant, make sure your terms are up-to-date to ensure that your investment is protected.
If you would like us to review your current leases, would like assistance in drafting a new lease for future tenants, give us a call, and we would be more than happy to assist you.
Murray S. Brown, Paralegal
Many times when we meet with our clients to discuss their estate planning, the question of what happens if your spouse and all of your children fail to survive you, triggers a blank reaction. More often than not, this consideration of a common disaster occurring is something that tends to be overlooked.
Usually a married couple will look to the other surviving spouse to be the primary beneficiary of their estate and as the guardian of any children. But unfortunately, as we have seen time and time in the news, it is not a far-fetched possibility that a family goes on a roadtrip and experiences a fatal accident. In this scenario, if all the beneficiaries simultaneously die, who will inherit the deceased’s estate?
A common disaster provision in a will is an important clause to ensure that an alternate beneficiary is designated in the event all of your primary beneficiaries die at the same time, which is preferable than having your estate distributed in accordance with the law if you do not make such a designation.
We all want to best control the outcomes of our estates when we die and to leave legacies to our loved ones of our choosing. Having a properly drafted will covering a common disaster scenario is something we encourage everyone to think about when planning your estate, and is something we can definitely help out with.
Michelle Eames, LLB, LLM
Have you noticed all the outrage going around these days? Minimum wage increase in Ontario, Diversity Statement for Lawyers, #MeToo for many women – there is a lot of outrage and protest and the message is often getting lost in all of the noise.
One topic, as a business lawyer, that I am paying close attention to is the protest around the 21% increase in minimum wage in Ontario that came into effect on January 1, 2018. Most business owners I know, in fact everyone that I have communicated with on this issue, support the increase in minimum wage. What they are opposed to was the slightly over six month’s notice they had about the increase.
If you’re a non-business owner reading this, imagine what you would do if you were told your residential rent or mortgage was increasing by 21% in slightly over six months. That’s hard to plan for in that short term cycle.
The first protest to hit the news cycle about minimum wage was the actions of two Tim Horton’s franchisees in Cobourg, Ontario.
In all the noise around the protest, the following facts seemed to have been forgotten:
1. The only control over cost that this franchisee has his the labour cost and their rent. The franchisee must purchase all of their product from Tim Horton’s parent company at the cost dictated by the parent company. The parent company also sets the prices that the franchisee can charge. This left the franchisee with a 21% increase in cost and no ability to up revenue to pay for it.
2. The franchisee in Cobourg that was demonized over their removal of benefits and refusal to continue to pay for lunches ignored the fact that these employers were providing benefits and paid breaks when they were not required to do so by law. They were a desirable employer because they were treating their employees above the legal minimum.
3. Most of the protests at the franchise locations are by Organized Labour trying to encourage the workers to join their unions. If the employees join the unions, their net pay will be reduced as they will have to pay union dues. Who wins then?
4. Many daycares increased their charges to parents by 21% effective January 1. No one is protesting those daycare centres, nor demonizing them. Why is that?
5. The Ontario Government has told businesses if they cannot absorb this sudden 21% impact in costs, they should shut down.
6. The Ontario Government announced Janaury 19, 2018 they are increasing funding to government agencies struggling due to the minimum wage increase – they’re not suggesting those agencies shut down.
Again. Remember: most businesses support increases in the minimum wage they just want a reasonable amount of time to implement them.
Sometimes valid points, and in this case, hard earned family businesses, get lost in the sound of protest.
Inga B. Andriessen, JD
I was recently successful representing a client at a Trial where they were sued for an alleged misrepresentation of the product they sold the plaintiff. The plaintiff purchased Product A from our client, but claimed they expected Product B. The only difference between A and B was the subtle finishing on the Product. The plaintiff also claimed that they paid the purchase price of Product B, when they were given Product A.
They believed they purchased Product B, because the Product Purchase Agreement identified it as a B, rather than A due to a typo.
The plaintiff sued for the difference in value between the A and B.
The plaintiff pled in the Plaintiff’s Claim and testified at Trial that they always intended on purchasing Product B, despite the plaintiff signing a thick stack of documents relating to the purchase of Product A, and only the Purchase Agreement identified the Product as B.
During the plaintiff’s examination in chief, the plaintiff testified that a friend allegedly told them they overpaid by the amount they sued our client for. Because this was hearsay, the statement was not considered evidence by the Judge.
During cross –examination, I asked the plaintiff what their damages were, since the paralegal representing them at the trial failed to do so. The plaintiff believed that they were entitled to the damages based upon the typo made by our client and the hearsay statement made by their friend. The plaintiff did not prove the amount of the damages they claimed to have suffered as a result of the typo.
I also questioned the plaintiff on what research they did before they bought the Product. The plaintiff had no idea that there was an A and B until after the purchase. This confirmed that the plaintiff was not truthful in their pleadings and testimony that they always believed they purchased B, because they did not know there was a difference.
Part of the plaintiff’s evidence included a bill of sale where a few months later, the plaintiff bought a brand new Product B. They claimed that it showed that the plaintiff because they never wanted the A and as result bought a new Product to replace the one purchased from our client.
What the bill of sale really showed was that they traded in Product A purchased from our client for an amount higher than purchase price from our client.
I argued that the plaintiff had mitigated their damages and had no cause of action. I also argued that even though any damages had been mitigated, the plaintiff failed to prove any damages were even suffered. The Judge agreed.
It is very important to remember that if you are going to sue, you must prove you suffered damages and the amount of those damages, or you will end up losing and paying the other side’s costs.
Murray S. Brown, Paralegal
When you hire new employees, how do you make sure they are made aware of policies and procedures within the company? How do you make sure they know what is expected of them as an employee within your company? The Company Handbook is how.
Important topics to be covered in the Handbook vary depending on your business, but all employers are required to have certain policies such as an Non-Discrimination Policy, a Harassment Policy, and a Workplace Violence Policy. The Handbook should also set out the compliant procedure, inform of any benefit programs, scheduling vacation days, performance review, cell phones and internet use in the workplace, in addition to any dress codes within your company. These are just a few of a number of topics that should be set out.
Everything that an employee will need to know should be contained within that Handbook. Additionally, you will want to make sure the employee signs an Acknowledgment that they have read and understood the Handbook so that there is no misunderstanding if the relationship is terminated later on.
The Employee Handbook is just as important as having new employees sign Employment Contracts. This can protect your Company from any issues down the road if an employee attempts to claim that they were not aware of a company policy.
Creating an Employee Handbook can be time consuming, but once it’s done, it is just a matter of updating required sections like updating the Ministry of Labour poster that was released on January 1, 2018.
When we are looking to sign a contract, it is easy to become lost in the business details to ensure that the key contract terms reflect business discussions and expectations.
Although it is important to ensure that the key contract terms are accurate as you enter into a new contractual relationship, what happens if things do not work out as planned after you have signed on the dotted line? Do you know where the exits are in the contract if you need to terminate and get out of the agreement?
An important section of the contract that can be overlooked is the termination provision. A termination clause sets out different scenarios of when the parties may end their legal relationship and stop fulfilling their obligations under the agreement. The scenarios can be crafted creatively to cover or offset certain risks if the agreement is indeed terminated.
For example, one party who is investing a lot of money early in the relationship may only allow the other party to terminate the contract at will after a certain period of time has passed so that the investing party has sufficient time to recoup their investment before the agreement is terminated at will. Another example is to impose a longer termination notice requirement on the terminating party so that the non-terminating party has enough time to get their operations in order by the time the agreement ends.
If you have any concerns of getting out of a contract or if you are contemplating entering into a new contract and need help in navigating the exit signs, we are here to assist and happy to answer any questions you may have.
Michelle Eames, LLB, LLM