Monthly Archives: September 2008

“No Pet” Provisions

Posted in: "All by Admin | No Comments Tuesday, September 30, 2008

pet license

For a long time in Ontario, there was controversy over pets in residential rental units, particularly apartments. However, with the enactment of the Residential Tenancies Act in 2006, the legislature finally put the debate to an end. Now the “no pet” provisions are void in rental housing agreements and cannot be enforced.

However, this doesn’t mean that pet owners get a free pass. A landlord can still bring an application to terminate the tenancy if an animal causes substantial interference or allergic reactions to others in the building. Further, a landlord can terminate a lease if an animal is inherently dangerous.

Beyond the three causes above, tenants must observe other laws and regulations governing animal or pet ownership. Perhaps the most important ones are the municipal by-laws mandating licence for pet owners. For example, in Toronto all cats and dogs must be licensed. (Click here to find out more.) Owners may be fined if they lack the necessary papers for their pets.

Therefore, the voiding of “no pet” provisions is by no means a free pass for pet owners. And if you keep a Siberian tiger in your apartment, you will probably get evicted.

Photo (c) City of Toronto, used for news reporting purposes.

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New Contents Added: Investing in a Standard Commercial Contract, Integrated Small Business Solutions

Posted in: "All by Admin | No Comments Monday, September 29, 2008

I am pleased to announce that new contents have been added to the site.

An updated version of “Investing in a Standard Commercial Contract” is now available under “Contracts and Other Commercial Agreements.”

A new section on “Integrated Small Business Solutions” is now available.

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PSWLAW Is Proud to Support the New Business Movement

Posted in: "All, Business Development by Admin | No Comments Sunday, September 28, 2008

I am pleased to announce that PSWLAW is a proud sponsor to the “New Business Movement,” a one-day convention to celebrate entrepreneurship presented by Youth Employment Services.

The New Business Movement will be held on Thursday, October 30, 2008 from 9:00 am – 4:00 pm at Scadding Court Community Centre, 707 Dundas St. W. (at Bathurst) in Toronto. Tickets are $20 and may be purchased by phone at 416-504-5303.

(Click here for the poster in PDF.)

Highlights of the event include:

  • “All-Around Legal Solution for Your Small Business” at the PSWLAW booth;
  • Keynote address by Ben Barry and Bilaal Rajan;
  • Workshops on business planning, and sales/marketing; and
  • BizStart networking session.

My office is in the process of producing brochures on launching a new business and standard contracts. I will be at the booth from 9:00am to 12:30 am. Be sure to come by and say hello!

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Convicted and Sued…

Posted in: "All by Admin | No Comments Thursday, September 25, 2008

Yesterday I wrote about the difference between criminal proceedings and civil proceedings. (Click here to read the post.) Today I’d like to explore the topic further and talk about the role of criminal convictions in civil proceedings.

Because in criminal cases, the state must prove the case “beyond reasonable doubt,” the threshold for a conviction is very high. But in civil cases, a plaintiff only has to prove his or her case on the balance of probabilities.

Under the legislation in Ontario, if an accused is convicted and subsequently sued, the criminal conviction is admissible as evidence, the prima facie (on the face of it) proof of the accused/defendant’s liability. The accused/defendant will not be allowed to re-litigate his or her case in the civil court, unless there is compelling fresh evidence that may cast serious doubt on the conviction.

What if the accused is acquitted in the criminal proceeding, and is subsequently sued?

In this case the state has failed to prove the accused’s guilt beyond reasonable doubt. However, it doesn’t mean that the plaintiff in the civil proceeding cannot prove his or her case against the accused on the balance of probabilities. Therefore, the accused’s acquittal does not bar the plaintiff’s claim in a civil proceeding. For example, O.J. Simpson was acquitted in his criminal trial. Nonetheless, in the civil action against him, the plaintiffs were successful in proving their case and were awarded with damages.

That said, I hope you will never be sued, let alone convicted. On the other hand, if you are considering suing somone who has been convicted, please don’t hesitate to give me a call.

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Criminal Proceedings vs. Civil Proceedings

Posted in: "All by Admin | No Comments Wednesday, September 24, 2008

Today I went to a Continuing Legal Education (CLE) at the Ontario Bar Association. The topic was “Criminal Law for Civil Litigators.” As a civil litigator who on occasion works with criminal defence lawyers, I must say I enjoyed learning about the interaction between criminal and civil proceedings arising from the same facts. In today’s blog, I’d like to talk about the difference between criminal proceedings and civil ones.

In a criminal proceeding, the state seeks to punish those who disregard the laws governing the public order. Of course, the state cannot exercise this power unless the accused is found guilty after a fair trial.

The threshold for finding an accused guilty is “beyond reasonable doubt,” which is very high indeed. Because of the coercive nature of a criminal proceeding (where the state prosecutes the accused), the accused is afforded many rights, including the right to remain silent and the right against self-incrimination. Under the Canadian Charter of Rights and Freedoms, the state also has an obligation to disclose all evidence against the accused, whether the state intends to rely on it during the trial or not.

In contrast, in a civil proceeding the plaintiffs seek remedies against the damages done by the defendants. Civil proceedings generally involve monetary damages, while a defendant’s liberty is seldom at stake.

The plaintiff will be successful if he or she can convince the court that he or she has proved the case on the balance of probabilities. To ensure speedy resolution of the disputes between the parties, procedural rules have been put in place. For example, the rules of discovery mandate that parties must disclose all relevant documents, whether they are favourable to the disclosing party or not.

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Abuse of Process – What Is It?

Posted in: "All by Admin | No Comments Tuesday, September 23, 2008

Abuse of Process is a doctrine that originated in criminal law, but has long been  recognized as applicable in the civil law context. In essence, it refers to proceedings that are initiated by parties with ulterior motives, or that the parties are litigating for gains over their opponents unrelated to the cases being litigated.

Here’s an example. Suppose there’s hostility between your co-worker and you because both of you are competing for a year-end bonus. One day your co-worker accidentally spills coffee on you. There is a stain on your shirt but you are otherwise OK. It then occurs to you that this is a good opportunity to start some trouble for your co-worker. You initiated a complaint against your co-worker at the Human Resources Department.

Because the real reason behind your complaint is not the coffee stain, but rather your hostility to your co-worker, you have an ulterior motive behind your claim. Should this claim proceed before the courts (civil or criminal), your co-worker may invoke the doctrine of abuse of process and ask the court to dismiss your claim.

Although at first glance, abuse of process appears a convenient tool for getting your opponent’s case dismissed (you can probably find an ulterior motive if you look really hard at the case). it is rarely applied by the courts. The courts are reluctant to dismiss a claim with merit based solely on the allegation of an ulterior motive.

To successfully invoke this doctrine, you must bring a motion before the court and present unequivocal evidence that demonstrates that the other party clearly has another agenda than to resolve the conflicts before the courts.

The court, in response, will closely examine the case and decide whether the doctrine applies to. The court may dismiss part or all of the opposing party’s case if you are successful. However, if you are unsuccessful, the court will likely find your motion improper and order costs against you on a substantial indemnity basis. For this reason, most civil litigators rarely bring a motion solely on the basis of abuse of process when seeking to have the case dismissed.

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Costs at the Landlord and Tenant Board

Posted in: "All, Administrative Law by Admin | No Comments Sunday, September 21, 2008

A while ago, I explained the role of costs in the civil litigation process in Ontario, and that the winning party at a hearing is presumed to be entitled to costs. (Click here to read the blog post on Costs.) Today I’d like to talk about costs at the Landlord and Tenant Board.

Costs are applicable in the Landlord and Tenant Board, but only to a limited extent. Typically, the successful party is entitled to the out-of-pocket filing fees. For example, let’s say you haven’t paid rent for 3 months and your landlord takes you to the Board and pays a $150 filing fee to have the application filed. Even if you eventually manage a payment plan with the landlord, you nonetheless will be required to repay the landlord $150 for the filing fee.

Although the filing fees are regularly awarded, the actual costs of representation are rarely ordered. According to the Landlord and Tenant Board guidelines, compensation for the fees of one party’s representative should only be allowed if the other party’s conduct has been unreasonable and caused undue delays. Possible examples may include failure to comply with the orders made by the board, and inappropriate service of documents to the other party.

However, the costs awarded will typically be less than the actual expenses because the allowable fees for representation under the legislation are capped at $75 per hour. This is considerably lower than what lawyers charge.

Finally, the Board may order one party to pay further costs to the Board when a party or a party’s paid agent has acted improperly. The Board may order that party to pay an amount that partly covers the expenses incurred by the Board as the result of that conduct.

If you don’t pay the costs as ordered by the Board, the Board may

  • refuse to allow the filing of an application;
  • order a stay in proceedings;
  • find a delay in the issuance of an order; and
  • declare a discontinuance of the proceeding.
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Going “Upstairs” to the Superior Court

Posted in: "All, Family Law by Admin | No Comments Friday, September 19, 2008

In the legal community, particularly among criminal defence lawyers and consumer-end civil litigators, we often refer to the Superior Court as “upstairs.” This is because most criminal offences are tried in the Provincial Court, and small civil claims are dealt with in the Small Claims Court. Certain family law matters may also be dealt with in the Provincial Court, but when property division is involved, the case must be filed at the Superior Court.

Although technically the Small Claims Court is a branch of the Superior Court, there is an entirely different set of rules at the Small Claims Court to facilitate easy access by the public. The monetary limit to the jurisdiction of the Small Claims Court is currently set at $10,000.

There are many considerations that must be taken into account when you choose to go “upstairs” to the Superior Court. Perhaps the most significant one is the many formal requirements in the Superior Court.

(A bit of trivia: one of these formal requirements is that the lawyers must be gowned when speaking to a judge of the Superior Court.)

Unlike the Small Claims Court or summary-conviction matters before the Provincial Court, only duly licensed lawyers acting as barristers may appear before the Superior Court. The lawyers handling the case are recognized as the “Solicitor of Record,” and may not withdraw their services without the Court’s permission. For this reason, lawyers generally exercise caution when giving out estimates for cases before the Superior Court.

Cost is an important consideration when litigating in the Superior Court. In contrast to the Provincial Court, at the Superior Courrt fees are payable upon issuing claims/applications, filing defences/answers, placing the matter for a hearing (set-downs), summoning witnesses, and certifying copies of documents.

In many cases personal service is required for the delivery of the documents. Law firms generally hire process servers for these tasks. Beyond the fees payable to the Court, a litigation levy must be paid to the lawyer’s professional indemnity insurance company, known as LawPro.

The biggest cost, however, is generally incurred by the lawyers for the preparation of hearings. Often, the parties are required to file briefs, formally called factums, prior to the hearing. The preparation time ranges from several hours to days, if not weeks, depending on the complexity of the matter.

These requirements all add to the escalating cost of litigation. Excluding court-ordered costs, a half-day motion in the Superior Court may cost a client anywhere from $3,000 to over $10,000; for a week-long trial, it may cost over $100,000. Indeed, going “upstairs” comes with a hefty pricetag.

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Landlord-Tenant Issues: Assignment vs. Subletting

Posted in: "All by Admin | No Comments Wednesday, September 17, 2008

In the context of landlord-tenant issues, most people use the terms “sublet” and “assign” interchangeably; however, they have distinct meanings under the provincial Residential Tenancies Act.

Under the legislation, subletting means that the tenant has vacated the unit, and gives one or more persons the right to occupy the unit until a specific date before the end of the tenancy, and that the tenant has the right to resume his or her tenancy after the specified date. Assignment means that the tenant transfers his or her lease to another individual in its entirety.

Generally, the tenant has the right to assign or sublet a tenancy if he or she can find a suitable candidate to assume the lease. Although the tenant generally must obtain the landlord’s approval of the assignment or sublet, the law mandates that such consent may not be arbitrarily withheld.

The main difference between subletting and assignment lies in their legal consequences.

Under assignment, the same terms and conditions of the old lease apply to the assignee, and

(a) the assignee is liable to the landlord for any breach of the tenant’s obligations and may enforce against the landlord any of the landlord’s obligations under the tenancy agreement or this Act, if the breach or obligation relates to the period after the assignment;

(b) the former tenant is liable to the landlord for any breach of the tenant’s obligations and may enforce against the landlord any of the landlord’s obligations under the tenancy agreement or this Act, if the breach or obligation relates to the period before the assignment.

Under subletting,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy;

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy; and

(c) the subtenant has no right to occupy the unit after the end of subtenancy.

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Book Review: Lawyers Gone Bad

Posted in: "All, Book Review by Admin | No Comments Sunday, September 14, 2008

Lawyers Gone Bad

By Philip Slayton

2007, Penguin Group (Canada)

294 pages; $36.00 hardcover, $13.50 mass market paperback

Welcome to the book review section of my blog! As reading is my favourite past-time, I’d like to share some thoughts with you about the books I’ve just read.

When Philip Slayton’s book Lawyers Gone Bad first came out in 2007, Maclean’s magazine ran an article commenting on how lawyers are bad people (I’m paraphrasing); the article triggered an uproar within the legal community. The Canadian Bar Association went so far as to issue a press release condemning the article.

After reading the book, I think the uproar was an overrated reaction. True, Slayton’s book described and discussed a dozen dishonest lawyers who got disbarred; however, nowhere in the book does the authoer imply that all or most lawyers are bad people. In fact, the author states that most lawyers are honest hardworking people, and the dishonest ones are the exception rather than the rule.

Individuals featured in this book vary from dishonest lawyers who mishandled clients’ funds (Chapter 2 on Donaldson and Chapter 3 on Cooper), to lawyers who helped clients commit fraud (Chapter 11 on Shead and Chapter 12 on Wirick), to lawyers who abused their positions to gain sexual favours (Chapter  8 on Johnston and Chapter 9 on Bomek).

The book is well-researched. The author diligently gathered information from court records, newspaper clippings, and sometimes interviews with the featured individuals. The cases are described in detail, often with footnotes. While some readers may find the notes informative, I found them distracting.

I also believe that Slayton’s narrative approach leaves some room for improvement. The author too often quotes directly from court files and newspapers, and the result is an inconsistent tone. At times the flow of the stories is interrupted by minor details that are not central to the case.

While I won’t comment on the individual cases discussed in the book, it is fair to summarize the lawyers profiled as individuals who made poor decisions in their careers.

Suffice it to say that these are sorrowful stories that could easily have happened to rogue members of any other profession – doctors, nurses, teachers, accountants. I don’t think the book paints lawyers in a bad light; rather it serves as a reminder to the public, as well as the legal profession, that every action has its consequences.

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