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When does Noise Disturbance caused by the condominium tenant fall within the jurisdiction of the Landlord and Tenant Board?

8/28/2023

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What happens when IDEL (Infectious Disease Emergency Leave) expired on July 30, 2022?

10/2/2022

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Trustworthy Legal Services is your Legal Expert helping people with civil disputes in the areas of Employment, WSIB, Small Claims, Landlord & Tenant, and other tribunal matters with the compensation amount of $35,000 or less. Contact for Legal Advice in Ontario at 647-891-9089.

Deemed IDEL (Infectious Disease Emergency Leave) was retroactively effective on March 19, 2020 to place employees on an unpaid job-protected leave of absence without triggering a termination as a result of COVID-19, and extended until July 30, 2022 by the government.

Following the expiry date of IDEL, the non-unionized employees’ rights under ESA (Employment Standards Act) whose has a significant reduction in hours of work or pay can no longer be considered on the job-protected emergency leave due to COVID-19. It triggers the employee’s entitlement to full notice of termination or termination pay in lieu of notice period and other entitlements, if an employee hasn’t been recalled to work on or before July 30, 2022 which could lead to a permanent termination.   Likewise, a temporary layoff, which results in a significant reduction in wages and hours of work starting on or after July 31, 2022, may constitute to a constructive dismissal claim.

The above-mentioned IDEL leave is not applicable to non-unionized employees’ rights under common law. It is not legal to place an employee on a temporary layoff under common law, unless there is any clause of temporary layoff provision expressly stipulated in the employment contract, or established past practices, or through employee’s consent verbally or in writing.   In case an employee doesn’t accept a temporary layoff, while no term permitted in the employment agreement, he or she is entitled to notice of termination or termination pay in lieu of notice period and other entitlements due to a permanent termination without cause.

Let’s examine some of case decisions ruled pertaining to employees’ rights under common law during the pandemic.

Coutinho v. Ocular Health Centre Ltd demonstrates that IDEL regulations do not bar any employee from suing for constructive dismissal damages against their employers under common law, when placed on temporary layoff without any relevant clause expressly justified in the employment contract.

Jessica Coutinho was employed by Ocular Health Centre as the Clinic manager for almost 6 years, before being placed on a temporary layoff on May 29, 2022. As a result, Coutinho sued alleging her employer for constructive dismissal, whereas Ocular defended that a temporary layoff did not constitute to constructive dismissal because the employee was on a job-protected leave of absence (the “IDEL” regulations under ESA).

Pursuant to s. 8(1) of the ESA stipulates that “no civil remedy of an employee against his or her employer is affected by the Act”, except where an employee has previously filed the complaint under ESA alleging an entitlement to termination or severance for the same matter. Nevertheless, there was no evidence that Coutinho filed a complaint against Ocular under ESA previously for this alleged matter. Coutinho fully mitigated her common law damages by commencing employment with Tri-City Eye on July 22, 2020. Hence, she received her statutory entitlement to termination pay in the sum of $6,103.85 arising from the constructive dismissal after her duty to mitigate damages. The Ontario Court of Appeal remarked that Coutinho entitlement to her six-weeks’ salary as termination pay for her six years of service is not subject to a deduction of mitigation income, since statutory entitlements are not damages.

Fogelman v. IFG is another case to establish that IDEL regulations do not supersede employee’s right to allege for a constructive dismissal claim at common law. IFG hired Fogelman for almost 10 years and 8 months in a middle management position, until he was placed on a temporary lay-off on March 16, 2020 due to a downturn in business resulted from the impact of COVID-19. Fogelman was alleging that he had been constructively dismissed at common law, because his employment agreement did not permit the employer to place him on a temporary layoff. The definition of termination clause, in case of termination of employment, was in ambiguity in his employment agreement, and therefore it was in favor of employee’s interpretation that the common law dictates the employee’s entitlement to termination or severance.

The court finally awarded Mr. Fogelman his constructive dismissal damages for (i) pay in lieu of 15 months of reasonable notice, (ii) three unpaid vacation days and (iii) punitive damages of $25,000. The sum of $3,600 Mr. Fogelman earned during the notice period is deducted from the total sum referenced above to reflect Mr. Fogelman’s mitigation efforts. The court also referenced that CERB payment should not be offset any employee’s award for damages.

Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.

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Can the Landlord's staying overnight occasionally in the rental premise be considered as the exemption of s. 5(i) of the Residential Tenancies Act, 2006 (RTA) to the tenancy lease when this Act doesn't apply?

9/6/2022

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Living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or patent or spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

Take an example of the case of TET-82410-17 (Re), 2018 CanLII 113120 (ON LTB), when the Tenants accepted the lease that the rental unit “except basement part used by only landlord” upon the commencement of this tenancy. The Landlord, Y.W., argued that there was no kitchen in the basement area so as to purport her position of “sharing kitchen with the Landlord” under s. 5(i) of the Act; meanwhile, the lease was silent about the Landlord’s use of kitchen. It is a general rule of contract interpretation that any ambiguity in the lease is to be interpreted against the interests of the drafter that the Landlord and Tenants were not going to share the kitchen. In fact, the purpose of the lease was to give the Landlord’s right to stay overnight on an occasional basis and on notice to the Tenants, when she traveled to Toronto for business or to visit friends sometimes, but not intended to live in the rental unit as it was understood when notice of entry to the Tenants is required.

The third factor is to examine the real substance of the Landlord’s pattern of activities relating to the residential complex. S. 202(1) of RTA states:

In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

may disregard the outward form of a transaction or the separate corporate existence of participants; and

may have regard to the pattern of activities relating to the residential complex or the rental unit.

Given the case of TSL-75551-16 (Re), 2016 CanLII 71276 (ON LTB) as an example for how this factor applies to the final decision, the Landlord, H.C., regularly used a bedroom on the first floor, when the Tenant lived in a bedroom on the second floor of the rental premise since 2006. There was no dispute that the Landlord and the Tenant shared the kitchen and the bathroom at the hearing. The adjudicator made the final decision on a balance of probabilities that this Act applies in this case despite what it is stipulated in s.5(i) of the Act. The rationale for this decision was resulted from the Landlord’s use of the bedroom on the first floor merely for convenience – he can do maintenance and other needs of the complex easily, and also can attend his family physician, pharmacy and hospital where he occasionally checks his eye in a close proximity to the rental premise. Lastly, the bedroom that the Landlord used in this rental premise was not his principal residence, whereas he and his wife own a house in Scarborough where they reside.

In general, the Landlord’s right to stay overnight occasionally in the rental premise, of which the tenant(s) share the kitchen or/and bathroom with the Landlord or his or her immediate family, cannot be justified as an exemption to the Act in the tenancy without ascertaining the real substance of the Landlord’s pattern of activity relating to the rental premise. Notwithstanding the justification of exemption under s 5(i) of the Act, the Landlord must also be residing in the rental premise prior to or at the same time when the Tenant’s moving in (not valid if the landlord was moving in after the Tenant(s)).

Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.

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Amendments to the Residential Tenancies Act , 2006 (RTA) became effective on September 1, 2021

11/28/2021

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Rent or compensation;
An amount for charges related to NSF cheque;
Costs for unpaid utility bills (i.e., heat, electricity and water);
Costs for damaging the rental unit (willfully or negligently);
Landlord’s expenses incurred because the former tenant or someone else visiting or living in the rental unit substantially interfered with the landlord’s reasonable enjoyment or lawful right, privilege or interest.

A Landlord requires to serve the L10 Application and the Notice of Hearing at least 30 days before the hearing date. At least 40 days before the scheduled hearing, a Landlord should submit a Request to use Alternative Service Method to the Board, if a tenant cannot be served by using one of the acceptable delivery methods. A Certificate of Service for L10 application in one of the acceptable delivery methods should be submitted to the Board at least 20 days before the hearing date.

N12 notice (Landlord’s or Purchaser’s Personal Use) or N13 notice (demolition, conversion or major repairs) to end Tenancy - Disclosure of all previous notices given

A declaration or an affidavit is required to file with the Board at the same time of the L2 application for Landlord’s Own Use or Purchaser’s Own Use (N12), which should demonstrate a good intention of requiring the rental unit for at least 1 year from the person who intends to move in identified on the notice. Furthermore, a Landlord should also indicate that if any previous N12 or N13 notice(s) were given to any tenant(s) in the past 2 years for this rental unit or any other rental unit(s) prior to this L2 application.

If previous N12 or N13 was given in the past two years prior to the L2 application, a Landlord should provide:

Date of the notice was served;
Address of the Rental Unit;
The identity of Intended occupant (N12) /Intended activity (N13) and
LTB file number if applicable for each notice.

T5 application - Tenant Application: Notice of Termination given in Bad Faith

A Tenant can file a T5 application with the Board within 1 year after he or she vacated the rental unit, if he or she believes that a notice of termination given in bad faith for Landlord’s Own Use or Purchaser’s Own Use (N12), or for demolition, conversion or major repairs (N13), with different remedies available as follows:

An order for a rent abatement;
A maximum of 12 months’ rent as general compensation;
A rent difference incurred in an increased rent of the new rental unit up to one year from when the date the tenant vacated;
An order for the Landlord to pay for the former tenant for reasonable out-of–pocket moving and storage expenses;
An administrative fine to the Board

A Tenant can file this application given with N12 notice, if the person identified in the notice hasn’t moved into the rental unit within a reasonable time after the tenancy ended.

A Tenant can file this application given with N13 notice, if the Landlord refused his or her right to move back, after the tenant had given the written notice of wanting to move back into the unit to the Landlord once demolition, conversion or major repairs was done (N13). A Tenant can also apply for this application to prove bad faith, provided that the landlord did not intend to do the work within a reasonable time after N13 notice was given.

Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.

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What are the implications to Landlords and Tenants with the passing of Bill 184?

9/7/2020

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Trustworthy Legal Services is your Legal Expert helping people with civil disputes in the areas of Employment, WSIB, Small Claims, Landlord & Tenant, and other tribunal matters with the compensation amount of $35,000 or less. Contact for Legal Advice in Ontario at 647-891-9089.



1) Fast-tracked eviction resulted from the repayment plan made for an outstanding of rent arrears

From the Landlord's perspective

It is recommended that a landlord should make an effort to negotiate a Repayment Plan with a Tenant, regarding to the rent arrears in whole or in part starting on March 17, 2020, specifying the terms of payment, including due date(s) and the amount per each payment etc. Payment Agreement form can be downloaded from the LTB website. This is considerably an essential factor for the Board to determine an issuance of eviction order, even if a proposal of reasonable Repayment Plan from the Landlord is rejected by the Tenant, based on s. 83(6) of the Residential Tenancies Act, 2006 (RTA).

Once the Repayment Agreement is reached and signed by both parties, the Landlord can achieve a fast-tracked eviction, if the Tenant doesn't comply with the term(s) and condition(s) of the Repayment Agreement. Under s. 78 of RTA, it permits a Landlord to obtain an eviction order without holding a hearing, when the Tenant has missed or late even in one payment, or has only paid partial payment in an installment, in terms of due date(s) and amount(s) addressed in the signed Repayment Agreement.

From the Tenant's perspective

A Tenant should ensure that he or she understands the consequences of every term and condition of the Repayment Agreement prior to any signing through seeking legal advice in order to determine if the agreement is reasonable and affordable. A Tenant can also propose to a Landlord with a reasonable Repayment Plan that a Tenant can meet with his or her current financial status.

2) A submission of non-completion of repair or/and maintenance Landlord's obligations under s. 82 of RTA should be made by the Tenant prior to a L1 hearing (Non-payment of Rent)

From the Tenant's perspective

A rent abatement can be deducted from an outstanding of rent arrears, or payment is made to the Board in Trust account until the Landlord's obligation to repair or maintenance will be completed within the specified time stated in the Order. The issue related to s. 82 of RTA should be raised and made known to the Landlord and Tenant Board (LTB) and the Landlord by delivering advance written notice prior to a L1 hearing. The relevant evidence should also be exchanged via email or other acceptable methods to the Landlord, as well as LTB, at least 7 days prior to the scheduled L1 video hearing.

3) Affidavit should be submitted along with a L2 application for the Landlord’s Own Use or Purchaser’s Own Use

From the Landlord’s perspective

According to s. 71.1 (1) of RTA, the affidavit is required, instead of a declaration, in the submission of a L2 application for the Landlord’s own use under s. 48 of RTA or for the Purchaser’s own use under s. 49 of RTA. The person who intends to move in should sign the Affidavit, which is sworn in front of a Commissioner of Oaths or Notary Public, to show his or her good faith in acquiring the unit. Furthermore, the definition of the Landlord’s own use or Purchaser’s own use also includes the landlord or purchaser’s immediate family - the landlord or purchaser’s child or parent; the landlord or purchaser’s spouse or the spouse’s child or parent.


Pursuant to s. 71.1 (3) of RTA, the Landlord should indicate in the Affidavit if there is any previous notice under s. 48 (Notice, landlord personally, etc. requires unit), or s. 49 (Notice, purchaser personally requires unit), or s. 50 (Notice, demolition, conversion or repairs) given to the Tenant within two years prior to the filing of this L2 application in respect of the same or different rental unit.

4) 1 month rent compensation to the Tenant for a notice given under s. 48 of RTA for the Landlord's Own Use or s. 49 of RTA for the Purchaser's Own Use.

The Landlord's perspective

A one month rent compensation is mandatory to a Tenant, when notice is given under s. 48 (Notice, landlord personally, etc. requires unit), or s. 49 (Notice, purchaser personally requires unit) by the Landlord. Before the passing of Bill 184, no compensation is required for a notice given under s. 49 of RTA for the Purchaser's own use.

The one-month rent compensation should be paid to the Tenant on or before the termination date on the N12 notice.

5) Compensation to the Tenant under a notice given for demolition, repairs or conversion (N13) under s. 50 of RTA

From the Landlord's perspective

For a residential complex with five units or more, it is mandatory to the Landlord for compensating three months rent to the Tenant with a notice given under s. 50 of RTA for demolition, repairs or conversion of a residential complex.

Meanwhile, the Landlord is now obligated to compensate for the Tenant with one month rent, if a notice was given under s. 50 of RTA for a residential complex with fewer than 5 units, as opposed to no compensation at all prior to the passing of Bill 184.

6) Seeking costs from the former Tenant who vacates the rental unit within 1 year

From the Landlord's perspective

The Landlord can bring an application to seek for costs from the former Tenant, who substantially interfered with the reasonable enjoyment of the residential complex or another lawful right, privilege or interest of the Landlord under s. 88.1 of RTA, notwithstanding that the tenant is no longer in a possession of the rental unit.

The same is applicable to unpaid utility costs which are responsible by the Tenant during his or her occupancy of the rental unit under s. 88.2 of RTA.

It is also applicable to undue damages caused by the Tenant negligently or willfully during his or her occupancy of the rental unit under s. 89 of RTA.

Nevertheless, seeking compensation for the above-mentioned issues should be brought in front of LTB no later than 1 year after the former tenant has vacated the rental unit.

7) Illegal rent increase is deemed to be legal without any objection by a Tenant within 1 year

From the Tenant's perspective

The illegal rent increase above the guideline set for each year will become legal, provided that there is no challenge brought by a Tenant in front of LTB within 1 year of such rent increase. A notice of Rent Increase should also be given to a Tenant at least 90 days prior to such increase.

8) Fines or/and Penalties imposed on Bad-faith evictions or any Breach of the Residential Tenancies Act, 2006

From the Landlord's perspective

A Tenant can bring a bad faith application to the Board, and a Landlord is liable for the compensation of 12 month "rent differential" as well as moving and other relevant expenses if proven in an intention of "bad faith".

An administrative fine is increased to $50,000 for an individual and $250,000 for a corporation with the passing of Bill 184, if the Landlord has breached RTA - for example, illegal evictions and such.

Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.

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When does Noise Disturbance caused by the condominium tenant fall within the jurisdiction of the Landlord and Tenant Board?

What happens when IDEL (Infectious Disease Emergency Leave) expired on July 30, 2022?

Can the Landlord's staying overnight occasionally in the rental premise be considered as the exemption of s. 5(i) of the Residential Tenancies Act, 2006 (RTA) to the tenancy lease when this Act doesn't apply?

Amendments to the Residential Tenancies Act , 2006 (RTA) became effective on September 1, 2021

What are the implications to Landlords and Tenants with the passing of Bill 184?

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