Ottawa Personal Injury Blog
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MVA Ottawa Lawyers - PROTECT YOUR FAMILY----CAR INSURANCE TIPS - by: Michael K. E. Thiele, Ottawa MVA Lawyer – Ottawa Car Accident Lawyer
Published on: Sunday October 23, 2011PROTECT YOUR FAMILY----CAR INSURANCE TIPS -
by: Michael K. E. Thiele, Ottawa MVA Lawyer – Ottawa Car Accident Lawyer
At Quinn Thiele Mineault Grodzki LLP we handle a great many car accident cases. It is the substantial part of what we do. We represent regular people who are injured in car accidents. In doing that, we negotiate significant financial settlements for our injured clients. Other times we sue and go to Court to recover compensation for our clients so that they can receive proper compensation for their injuries---this compensation is normally paid by the insurance. In doing this kind of work, we see the importance of being properly insured—unfortunately this is sometimes highlighted by the inadequate basic insurance policies that are legally sold but reflect only the minimums mandated by law.
Car insurance policies, as issued by any insurance company doing business in Ontario, are anything but straightforward. The law sets out a certain basic framework for every motor-vehicle policy in Ontario through a standard automobile insurance policy; the terms of which are dictated by the government. Aside from the standard minimum coverage, insurance companies are permitted to sell additional benefits as part of the insurance policy. These additional benefits, reflected in endorsements to the standard policy, are essentially amendments to the minimum basic coverage provided by the standard policy.
The question that anyone who is buying automobile insurance should ask is whether the basic coverage, provided in the standard policy, along with the minimum statutory amounts, provides a reasonable level of coverage. Is your family adequately protected by the standard insurance policy? In our opinion, the direct answer is an unqualified no. The statutory minimums are entirely unsatisfactory. Any person relying on the basic coverage in the event of a serious accident is at great risk of being underinsured and exposed to significant financial liability.
The risk of not buying enough coverage is, to a degree, understood. Increased coverage costs a little more. People seem to be conditioned to think that getting the cheapest possible insurance is the aim and purpose of shopping around and getting comparison quotes. It is fairly obvious to insurers, that people shopping for quotes, are shopping for the cheapest policy. Hence, there is a pressure to quote policies that reflect coverage based on statutory minimums as opposed to coverage that provides reasonable protection in the event of an accident.
The fact that Ontarians shop for “price” when getting insurance quotes is not entirely a factor of being frugal or however else you would like to say it. Certainly, everyone likes a good deal—but we at Quinn Thiele Mineault Grodzki LLP believe that hardly anyone would consider an inadequate policy of insurance a good deal. So why then, is the focus on price and not on the content of the policy? The answer we believe lies in the fact that most people still trust the Ontario government to make sure a “standard” policy of insurance provides adequate and reasonable coverage. The sad fact, is that while this was true at one time, the Ontario government has allowed the standard policy of insurance to erode to the point that the minimum coverages are not reasonable—leaving people who rely on them at significant risk.
The endorsements, the additional coverage that your Ontario automobile insurers sell, are neither cash grabs nor unjustifiable extravagances. In our opinion, these additional coverages are so important that they should really form part of the basic coverage of a standard automobile insurance policy.
In this memo, we would like to provide you with following suggestion. In addition to this suggestion we strongly recommend that you contact your insurance broker to talk about all of the potential buy-ups, especially in relation to no fault accident benefits. In the name of consumer choice, the government recently slashed the coverage that comes with a standard automobile policy. The statutory accident benefits that now form part of a standard automobile insurance policy can easily result in inadequate protection for you and your family.
The concrete suggestion we have for everyone who is insured in Ontario is to two-fold. Firstly, you should buy up the liability coverage to whatever amount you can possibly afford. In our opinion, a reasonable base amount of coverage is $5 million dollars. Anything less is a risk.
Five million dollars of liability coverage is the amount your insurer will pay to the victims of any accident that you are deemed responsible for. The sum may sound like a lot, however, it doesn’t take much to imagine the extent of injuries in a serious accident involving multiple vehicles that are full of people. Those millions of dollars can be quickly used up helping the seriously injured.
The second concrete suggestion we have for everyone is to make sure that you have purchased the Family Protection Endorsement. The Family Protection Endorsement protects you and your family in the event that the person who hit you is underinsured or completely uninsured. Surely we have all had the thought that any accident we’re in will be the result of someone else being the “bad” driver and not ourselves. What if that “bad driver” is drunk or impaired by drugs. What if that driver has a suspended licence or is driving without permission? In all of these instances the person you are suing would potentially have no insurance coverage or the coverage would be limited to $200,000. There is no way that this is enough in the case of a serious accident.
The Family Protection Endorsement allows you to recover damages from your own insurer to the extent that the driver or responsible person who hit you was underinsured. The amount available under the Family Protection Endorsement is equal to the amount of your liability coverage. This is another great reason to have the $5 million coverage as you will have a total of $5 million dollars available to you should you be injured by a negligent underinsured or uninsured driver.
At Quinn Thiele Mineault Grodzki LLP we strongly urge you to review your automobile insurance polices with your broker. Please do so before it may be necessary to make a claim. A review after an accident is simply too late. You will be quite surprised to learn that the cost of the “buy ups” is actually quite reasonable relative the significantly better coverage that you can get. Insurance is supposed to protect you in the event of a catastrophy. Only you can make sure that your coverage is right.
Contact us at 613-563-1131. - Ottawa MVA Lawyers - Ottawa Injury Lawyers - No Fee Unless YOu Win - Free Consultations. -
CAR INSURANCE TIPS
Published on: Sunday October 23, 2011PROTECT YOUR FAMILY----CAR INSURANCE TIPS
At Quinn Thiele Mineault Grodzki LLP we handle a great many car accident cases. It is the substantial part of what we do. We represent regular people who are injured in car accidents. In doing that, we negotiate significant financial settlements for our injured clients. Other times we sue and go to Court to recover compensation for our clients so that they can receive proper compensation for their injuries---this compensation is normally paid by the insurance. In doing this kind of work, we see the importance of being properly insured—unfortunately this is sometimes highlighted by the inadequate basic insurance policies that are legally sold but reflect only the minimums mandated by law.
Car insurance policies, as issued by any insurance company doing business in Ontario, are anything but straightforward. The law sets out a certain basic framework for every motor-vehicle policy in Ontario through a standard automobile insurance policy; the terms of which are dictated by the government. Aside from the standard minimum coverage, insurance companies are permitted to sell additional benefits as part of the insurance policy. These additional benefits, reflected in endorsements to the standard policy, are essentially amendments to the minimum basic coverage provided by the standard policy.
The question that anyone who is buying automobile insurance should ask is whether the basic coverage, provided in the standard policy, along with the minimum statutory amounts, provides a reasonable level of coverage. Is your family adequately protected by the standard insurance policy? In our opinion, the direct answer is an unqualified no. The statutory minimums are entirely unsatisfactory. Any person relying on the basic coverage in the event of a serious accident is at great risk of being underinsured and exposed to significant financial liability.
The risk of not buying enough coverage is, to a degree, understood. Increased coverage costs a little more. People seem to be conditioned to think that getting the cheapest possible insurance is the aim and purpose of shopping around and getting comparison quotes. It is fairly obvious to insurers, that people shopping for quotes, are shopping for the cheapest policy. Hence, there is a pressure to quote policies that reflect coverage based on statutory minimums as opposed to coverage that provides reasonable protection in the event of an accident.
The fact that Ontarians shop for “price” when getting insurance quotes is not entirely a factor of being frugal or however else you would like to say it. Certainly, everyone likes a good deal—but we at Quinn Thiele Mineault Grodzki LLP believe that hardly anyone would consider an inadequate policy of insurance a good deal. So why then, is the focus on price and not on the content of the policy? The answer we believe lies in the fact that most people still trust the Ontario government to make sure a “standard” policy of insurance provides adequate and reasonable coverage. The sad fact, is that while this was true at one time, the Ontario government has allowed the standard policy of insurance to erode to the point that the minimum coverages are not reasonable—leaving people who rely on them at significant risk.
The endorsements, the additional coverage that your Ontario automobile insurers sell, are neither cash grabs nor unjustifiable extravagances. In our opinion, these additional coverages are so important that they should really form part of the basic coverage of a standard automobile insurance policy.
In this memo, we would like to provide you with following suggestion. In addition to this suggestion we strongly recommend that you contact your insurance broker to talk about all of the potential buy-ups, especially in relation to no fault accident benefits. In the name of consumer choice, the government recently slashed the coverage that comes with a standard automobile policy. The statutory accident benefits that now form part of a standard automobile insurance policy can easily result in inadequate protection for you and your family.
The concrete suggestion we have for everyone who is insured in Ontario is to two-fold. Firstly, you should buy up the liability coverage to whatever amount you can possibly afford. In our opinion, a reasonable base amount of coverage is $5 million dollars. Anything less is a risk.
Five million dollars of liability coverage is the amount your insurer will pay to the victims of any accident that you are deemed responsible for. The sum may sound like a lot, however, it doesn’t take much to imagine the extent of injuries in a serious accident involving multiple vehicles that are full of people. Those millions of dollars can be quickly used up helping the seriously injured.
The second concrete suggestion we have for everyone is to make sure that you have purchased the Family Protection Endorsement. The Family Protection Endorsement protects you and your family in the event that the person who hit you is underinsured or completely uninsured. Surely we have all had the thought that any accident we’re in will be the result of someone else being the “bad” driver and not ourselves. What if that “bad driver” is drunk or impaired by drugs. What if that driver has a suspended licence or is driving without permission? In all of these instances the person you are suing would potentially have no insurance coverage or the coverage would be limited to $200,000. There is no way that this is enough in the case of a serious accident.
The Family Protection Endorsement allows you to recover damages from your own insurer to the extent that the driver or responsible person who hit you was underinsured. The amount available under the Family Protection Endorsement is equal to the amount of your liability coverage. This is another great reason to have the $5 million coverage as you will have a total of $5 million dollars available to you should you be injured by a negligent underinsured or uninsured driver.
At Quinn Thiele Mineault Grodzki LLP we strongly urge you to review your automobile insurance polices with your broker. Please do so before it may be necessary to make a claim. A review after an accident is simply too late. You will be quite surprised to learn that the cost of the “buy ups” is actually quite reasonable relative the significantly better coverage that you can get. Insurance is supposed to protect you in the event of a catastrophe. Only you can make sure that your coverage is right.
QTMG LAWYERS -
Ottawa Dog Bite Lawyer - Dog Owner's Liability Act -Dog Bite and Dog Attack Liability in Ontario - By Marc-Nicholas Quinn, Ottawa Accident Lawyer
Published on: Thursday October 13, 2011Dog Bite and Dog Attack Liability in Ontario
By: Marc-Nicholas Quinn, Ottawa Personal Injury Lawyer
This article addresses many of the issues surrounding dogs and liability in the context of the law in Ontario as it exists in 2011 and will provide you with valuable information about dogs and liability, no matter which side of the leash you are on.
It is said that dogs are a person's best friend. They are always there for us, for protection, for care and love. However, in a single bite, the lives of countless people have forever been profoundly changed. Dogs can be extremely loyal, loving and caring pets. Despite the close relationship between dogs and humans, dogs can cause serious injury, permanent physical and emotional scaring and in some cases, dog bites or attacks can be fatal. Dogs of all sizes and breeds are capable of seriously harming or killing human beings. Even the most timid dogs can bite or attack.
There is considerable debate as to whether or not certain breeds of dogs are more dangerous than others and more likely to bite or attack. This has resulted in certain protective legislation targeting certain breeds. For instance, in Ontario, with few exceptions, pit bulls are banned pursuant to the Dog Owners' Liability Act and Public Safety Related to Dog Statute Amendment Act, 2005. Regardless of the size or breed of dog, owners have legal responsibilities to their pets as well as to any person, pet or property that may come into contact with their dog. Dog owners should be aware of their legal responsibilities and the risks involved in ownership.
Any person injured as a result of a dog in Ontario is entitled to seek compensation. This article addresses, in a general way, the legal rights and interests of victims of dog bites and dog attacks.
What happens when a dog bites and injures someone? In most cases, dog owners are financially and legally responsible for any injury or property damage their pets cause. In most, but not all, cases, the dog owner's home insurance policy will cover the damages. If your dog bites or attacks someone, you can, in some cases, lose your dog or your homeowner's or renter's insurance. If you lose your insurance coverage with your current insurer, you may not be able to obtain coverage from any other insurance company. If you own a dog and haven't looked at your policy, it's a good idea to get out your policy and review the fine print.
If your dog bites and injures someone, you could end up paying significant monetary damages. Even if your dog doesn't have a history of biting, attacks or vicious behavior, you can nevertheless be held liable. It is prudent to verify with your insurance agent or insurance company annually to ensure you have appropriate insurance coverage.
In the past, the law as it pertained to protecting victims of dog bites and attacks was limited. Victims of dog bites or attacks could only rely on the general principles of common law (judge made law as opposed to legislation) and an ancient doctrine of law called scienter (in English, meaning “foreknowledge”). In order to successfully obtain fair compensation, victims had to establish clear negligence on the part of the dog owner, using general principles of negligence law. Scienter required the victim to identify the dog, identify the dog owner and prove the dog owner knew their dog had a propensity to bite or attack.
Today, things are very different and the onus is now on dog owners to show why they should not be held responsible to pay compensation to dog bite injury victims.
Statutory Obligations and Liability - Strict Liability
Ontario law places strict liability on owners of dogs for any injuries causes by their pets.
If you have been bitten, attacked or otherwise injured by a dog in Ontario, you have certain rights and remedies available to you through the various legal principles that apply to dogs and their owners.
In terms of statutory provisions, the relevant provincial law is as follows:
The law in Ontario for dog bites is governed by the Dog Owners’ Liability Act, R.S.O. 1990, Chapter D.16 ("DOLA").
The DOLA states that it is the owner of the dog who is liable and the liability is held to a strict standard. Pursuant to the cases (case law) that have interpreted and applied the provisions of the DOLA, dog owners are strictly liable for any damage or injury caused by their dogs.
Strict liability is the legal responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent. If you are injured by a dog, you generally do not need to prove the intent, negligence or fault of the dog owner. Liability will be found even if the dog owner acted completely reasonably.
What does this mean? In simple terms, if you are injured by a dog, you need to identify the dog owner, prove that their dog injured you and then, the dog owner is automatically responsible to pay you damages. The amount of damages is assessed by the Court. If the case settles prior to trial or prior to a Court action having been commenced, the amount is determined on the basis of legal research completed by your personal injury lawyer. A personal injury lawyer can provide a range of monetary damages within which a settlement would be reasonable.
In some cases, the amount of the damages an injured person is awarded can be reduced because of contributory negligence. This occurs when the Court believes that the injured person acted in such a way to make them partially responsible for the dog bite or attack injury. This only occurs in some cases and usually involves incidences where the victim for whatever reason unreasonably provoked the dog in some way to behave violently.
The finding and extent of contributory negligence is wholly dependent upon the circumstances of each individual case. The incident in question would be reviewed to determine if the dog attack victim provoked the dog in some way. In cases of children being injured, the analysis is based on whether or not the child's parent or guardian failed to properly supervise the child, and also if the child unreasonably provoked the dog. In most cases, there is no contributory negligence found.
There is a general overriding obligation on dog owners to ensure that their dogs behave safely and do not injure others. Section 5.1 of the DOLA provides that “each owner of a dog shall exercise reasonable precautions to prevent it from biting or attacking a person or domestic animal; or behaving in a manner that poses a menace to the safety of persons or domestic animals.”
In terms of civil liability, section 2 of the DOLA provides that the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. Where there is more than one owner of a dog, they are jointly and severally liable under this section.
A person injured by a dog does not need to prove that the owner of the dog knew their animal was dangerous. Section 3 of the DOLA provides, in part, for the extent of the liability of dog owners. Section 3 states, in part, as follows: “The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner.”
In some cases, the injured person's damages can be reduced if the dog owner can establish that the injured person acted unreasonably. Section 3 of the DOLA further states that “the Court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.” It is rare to see damages reduced under this provision.
Ottawa City By-Law Respecting Animal Care and Control - BY-LAW NO. 2003 - 77
Most municipalities have by-laws respecting animals, including dogs. For instance, the City of Ottawa has a general by-law respecting the obligations of dog owners. It is called "A by-law of the City of Ottawa respecting animal care and control." The by-law places a general onus on dog owners to ensure that their dogs do not bite or otherwise injure persons in Ottawa. It also imposes the obligation on all dog owners to maintain control of their dogs at all times and to keep them on leashes except for specified areas. All dogs must be registered with the municipality. The by-law provides for sanctions and penalties to anyone who breaches the provisions of the by-law.
Pit Bulls
Special legislation was enacted in 2005 to specifically deal with pit bulls in Ontario. In 2005, the Public Safety Related to Dogs Statute Law Amendment Act, 2005 was passed along with Ontario Regulation 157/05 which provides for the strict regulation and control of pit bull ownership and management in Ontario. With few exceptions for those who already owned pit bulls in 2005, the law now prohibits persons from owning, breeding, importing, abandoning or transferring pit bulls. Training pit bulls to fight or allowing them to stray is illegal. All owners of pit bulls must comply with the new regulation for pit bulls under the DOLA and the Regulation. For more detailed information visit http://www.attorneygeneral.jus.gov.on.ca.
Dog Owner’s Liability Act versus Occupier’s Liability Act
There may be situations where the Court finds that the injuries sustained by the victim are not caused by a “bite” or “attack”. Section 2 of the DOLA makes it a pre-requisite that the dog must bite or attack someone in order for the DOLA to apply. In the unusual case of the Court finding that a victim was not injured as a result of a bite or attack, the Court may nevertheless apply general negligence principles to hold the dog owner liable. The Court, in particular, can apply the provisions of the Occupier’s Liability Act, R.S.O., 1990, c.O.2 to hold the dog owner liable not as a dog owner per se but as a property owner; providing the incident occurred at the dog owner’s real property, premises or home. Section 3(1) of the Occupier’s Liability Act provides that: “An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” Therefore, if someone is injured by a dog but it is not by a bite or an attack, liability can nevertheless be found either in general negligence, or under the provisions of the Occupier’s Liability Act.
Can someone other than a dog owner also be held liable?
Yes. An owner of a dog can in certain circumstances, prove, that someone else contributed to the incident and seek that the other person partially or fully indemnifies them for the compensation /damages they are ordered to pay an injured person.
If the victim is able to prove that the property owner, aside from the dog owner, exercised control over and assumed responsibility over the property and/or the dog, the victim can pursue a claim for compensation against the property owner, in addition to the dog owner.
Section 3 of the DOLA further states, in part, as follows: “An owner who is liable to pay damages is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages.” This provision does apply in certain circumstances. Examples of where this provision would apply include, cases where there is more than one dog involved in the incident (i.e. two dogs with two different owners attacked someone), where there is more than one owner of the dog that caused the injury (i.e. joint owners of dog) or there is a third party, such as a negligent property owner or landlord, who may have contributed to the dangerous circumstances. An example of this would be a landlord allowing dangerous dogs on their rented property or ‘harbourers’ of dogs such as puppy mills or kennel owners.
Who is considered a dog owner?
It is useful to understand that a dog owner is broadly defined in the DOLA. Section 1 of the DOLA defines dog owner as including any "person who possesses or harbours a dog and, where the owner is a minor, the person responsible for the custody of the minor." Therefore, if you are entrusted to care for a dog for anyone else (i.e. baby-sitting a dog), you will be considered as an owner (i.e. harboring a dog) and can be held liable for damages arising out of any injuries sustained by someone from the dog under your care.
The issue of how owners of real property, in particular, landlords, can become liable for damages in dog bite or attack cases, even though the injuries sustained by the victim were caused by someone else's dog, in particular, a tenants, is subject to considerable debate and the law in this area is likely to expand.
Criminal Acts and Dogs
There is an exception to the strict liability imposed on dog owners in cases where their dog attacks a person committing a crime on their property. Section 3 of the DOLA provides that “where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable ... unless the keeping of the dog on the premises was unreasonable for the purpose of the protection of persons or property.”
The law does also provide some special protection for certain governmental agencies and their employees (i.e., police officers, border patrol officers, etc...) who utilize dogs in the apprehension of criminal suspects or in the investigation of crimes. In such cases, it is much more difficult for the victim to claim compensation.
What to do if you have been bitten or attacked by a dog?
If you are bitten or attacked by a dog in Ontario, aside from firstly obtaining immediate medical attention, the second thing you should do is identify and obtain the name of the dog owner. The dog owner is the person at fault for the dog bite or attack incident and liable to pay damages.
In some cases, obtaining the identity of the dog owner is simple because you already know the owner (the incident occurred at a friend or family member's home). However, in some cases, identifying the dog owner can prove problematic; the incident may have occurred in a public place, occurred in the absence of a dog owner (loose dog), an escaped dog or by a dog you do not recognize. In some cases, the dog owner may attempt to evade the location of the incident in order to hide his or her identity. In every case, the local police department, local health department and local by-law enforcement should be immediately notified. These governmental agencies may be able to assist in locating the dog and its owner.
With respect to seeking medical attention, a person bitten by any animal can be exposed to serious risk. All animals potentially carry parvovirus or rabies virus. Always consult a physician immediately after being bitten. A bite victim may also suffer serious bacterial infections, including one of the bone called osteomyelitis which can become life threatening if untreated. This is possible whether or not the animal has parvovirus or rabies virus. Always advise the local health department of a dog bite or attack.
It is very important to, as best as possible, obtain the names and contact particulars of any witnesses. It is not uncommon for dog owners to deny the incident for fear of being liable to pay significant damages. Independent witnesses can be very useful in such cases.
Also, it is crucial to obtain photographs of the injuries as soon as possible after the time of attack. It is also important to take photographs over time to show the stages of healing and document the permanency of any injuries such as scarring.
It is very important that the medical treatment you receive is well documented and that the records reflect treatment as a result of a dog bite or attack. You should advise your health care providers that your injuries are a result of a dog bite or attack and that their notes will be requested by your personal injury lawyer.
Keeping a daily record of how the incident and injuries have affected you is also a good idea. You should address the diary to your lawyer so that solicitor and client privilege may be claimed to protect the contents of the diary from having to be disclosed to the dog owner and their lawyer or insurer.
It is always prudent to consult with a personal injury lawyer experienced in dealing with dog bite or attack liability cases. The earlier you do so the better. Your personal injury lawyer can provide assistance with any by-law offence issues arising from the incident. It is not uncommon for the dog owner to be charged under local by-laws and be prosecuted under local by-laws as well as the Provincial Offences Act. It is also common for plea deals to be negotiated and your personal injury lawyer can intervene, speak to the investigators and provincial or local prosecutor and seek that the charges proceed to a trial.
Your personal injury lawyer can also take immediate steps to protect your interests such as notifying the dog owner and anyone else at fault of your intention to seek compensation. Your personal injury lawyer can also secure photographs and witness statements. In the event the dog owner is not identified, your personal injury lawyer can also assist in locating the dog owner through the use of investigative techniques.
It is important to note that it is prudent to consult a personal injury lawyer at any point following the dog bite or attack incident, even months later. You can claim compensation even months later. However, there is a statutory time limit by which you can forever be barred from advancing a claim.
Limitation Period - Can I lose my right to sue?
At the time of writing this article (2011), the limitation period by which a right to seek compensation through a Court action, expires 2 years from the date of the dog bite incident.
If you do not commence a legal proceeding within the time period prescribed by law, your right to make that claim is forever lost. Even the very best claim disappears simply because of the expiry of that period of time. This time period is called a limitation period. It is also often called a prescription period.
Can someone receive compensation if the dog attack did not result in a bite or where there was no physical contact with the dog - emotional trauma?
The Courts have clearly stated that in order for the provisions of the DOLA to apply or for damages to be awarded, there need not be an actual bite or physical contact with a dog. If a dog causes injury, be it physically, psychologically or emotionally, the victim can nevertheless receive compensation regardless of whether or not the dog actually bit or attacked the victim. Also, the Court has awarded damages in cases where a dog has caused physical injuries to another dog. Damages have been awarded for pain and suffering, emotional trauma, emotional suffering, emotional distress, nervous shock, injury to health, loss of amenities of life, loss of enjoyment, personal inconvenience, medical expenses, loss of income, loss of competitive advantage, loss of business opportunity and other special and general losses.
Who is financially responsible to pay damages arising from a dog bite injury claim ?
All dog owners should understand their potential liability in the event their dog bites, mauls or, heaven forbid, kills someone. Even a single bite or dog attack can cost a dog owner tens of thousands of dollars. Litigation alone (aside from any award of compensation) can cost tens of thousands of dollars, sometimes as much as one hundred thousand dollars. Insurance coverage might not apply in every case. In some jurisdictions, if the dog bite or attack is especially serious, the dog owner may be incarcerated and spend time in jail. Criminal charges, although relatively rare, can be advanced in cases where the dog attack was particularly severe and the owner is judged to have been unreasonably careless or grossly negligent (see section 18 of the DOLA which provides for incarceration of up to 6 months).
The dog owner and anyone else found responsible for the injuries sustained by the victim will be held liable to pay the damages. However, in many circumstances, the damages (compensation) are a covered loss under many home owners insurance policies. This is true in many cases regardless of whether the incident occurred at home or elsewhere. Care should be made to review the policy however as each policy is different. Accordingly, the compensation will be paid by the insurance company in most cases.
If you are a dog owner and have been notified of a claim, the notice should be immediately provided to your insurer. Failure to provide prompt notice or steps taken without the consultation with the insurer which prejudices the insurer may result in coverage being denied, in which case, the compensation will need to be paid personally.
In many cases, even bankruptcy will not absolve a dog owner from paying compensation as there are provisions in the Federal Bankruptcy and Insolvency Act which makes these types of awards exempt from being excused in discharge from bankruptcy.
Monetary Damages
In Ontario, there are generally two types of damages, damages that can be calculated (pecuniary damages) and damages that cannot be calculated (non-pecuniary damages). The type of damages an injured person is entitled to receive depends on the circumstances of each case. However, the damages can include general damages for pain and suffering (non pecuniary damages), various types of special damages such as out of pocket expenses (pecuniary damages), loss of income, loss of business opportunity, loss of competitive advantage, medical expenses, rehabilitation expenses and home care expenses, loss of care, guidance and companionship.
Quasi-Criminal Sanctions and Non-Monetary Remedies
The DOLA and the single regulation enacted pursuant to the DOLA (Ontario Regulation 157/05 – Pit Bulls Regulation) deal almost exclusively with the regulation of dangerous dogs at the provincial level. For the most part, the DOLA addresses non civil issues relating to dogs and concentrates in quasi-criminal issues and the prosecution of dog owners under the Ontario Provincial Offences Act.
Under the DOLA and local by-laws, a Court can order a dog owner to take certain specified precautionary steps to better control their dog (such as a muzzle order) or even order the destruction of the dog. The specific order or orders will depend on the circumstances of the case such as what the dog has done and the consequences thereof and on the dog owner’s conduct or lack thereof. The Court will be concerned with the safety and protection of the victim and also of the public at large.
The DOLA contains a very vaguely-worded statutory provision which provides the Court with significant discretion when dealing with serious dog attack or bite cases. Section 4(3)(b) of the DOLA states that the Court may order a dog owner to “take the measures specified in the order for the more effective control of the dog or for purposes of public safety.” This is very vague wording and hence means that the Court can make any order it deems necessary in the name of “public safety”. The Court, arguable, can even make a declaration that a person be ineligible to own a dog permanently or for a specified period of time.
Conclusion
The dog bite and dog attack laws in Ontario are now fairly clear. Owners of dogs who injure other persons will, in most cases, be held strictly liable to the victim for damages and will need to pay fair and reasonable financial compensation.
There are many factors which can play a role in dogs attacking or biting someone. They include learned behavior, sickness, pain, fear, fear aggression, dominance behavior, territoriality, reactive aggression, breed, provocation and poor socialization. Whether or not a dog will bite or attack is unpredictable. Even the best owners can have dogs that bite or attack unpredictably.
In every case, the best tool is prevention. In this regard, some good advice for dog owners when it comes to liability for dog attacks and/or bites is to take all steps possible to prevent your dog from injuring others. Properly train and socialize your dog, train and socialize early and consistently. Do not let your dog run at large - run around loose. Recognize triggers and signs of aggressive behavior. Take care when your dog is around strangers, especially children. Post signs on your property warning others that there is a dog on the property. Ensure your dog is in good health with no medical reasons for him to react aggressively because of pain.
For dog owners, the best advice is to become educated on how to be safe in the presence of dogs and to take appropriate precautions. Teach children how to behave around dogs and recognize indicators of dangerous dogs or dangerous situations. For instance, teach children skills such as never pet a dog until it has had a chance to smell you, never disturb a dog who is eating, caring for its puppies or sleeping, never run from a dog and try to avoid eye contact with dogs. Most dog bites or attacks occur between people and dogs that are familiar with one another.
To find out more about your rights and interests in dog bite cases, please contact a personal injury lawyer specializing in dog bite and attacks. At the Ottawa Personal Injury Law Firm of Quinn Thiele Mineault Grodzki LLP, we specialize in dog bite injury cases and have obtained millions of dollars in compensation for our personal injury clients.
If you or someone you love has been involved in a dog bite injury, you have every right to seek damages. If you have suffered injuries because of a dog bite incident occurring on private or commercial property, contact our law office today for a free consultation with an Ontario personal injury lawyer about your legal options. We offer free consultations. We only get paid if we settle your case. Call us at 613-315-4878 or 613-563-1131 (ask for Marc-Nicholas Quinn).
There is no guarantee that your dog will not bite or attacks someone. Even the most responsible owners are at risk of their dog attacking. If your dog bites or attacks someone, we can answer your questions and offer legal advice. We can advise you of your rights, interests and obligations under the law. If you do not have insurance covering the loss, we can defend any claims, court action or prosecution. Call us at 613-315-4878 or 613-563-1131 (ask for Marc-Nicholas Quinn). Visit us at www.pqtlaw.com or www.ottawapersonalinjurylawyernetwork.com.
ABOUT THE AUTHOR: Marc Nicholas Quinn has practiced personal injury law in Ottawa, Ontario since 1997 and is a founding partner of the Ottawa Law Firm, Quinn Thiele Mineault Grodzki LLP, Ottawa Personal Injury Lawyers. His practice is focused on personal injury, insurance and disability law. He is a trained general mediator, court connected mediator and teaches law at various post-secondary institutions in Ottawa. He is recognized as an experienced and respected lawyer in personal injury law and has extensive experience dealing with dog owner liability issues, both on behalf of dog owners and victims of dog bites and attacks. He has obtained millions of dollars in compensation for his personal injury clients.
LEGAL NOTICE: The views expressed and information provided in this article is not intended to be legal advice in any way and should not be relied on as such. This article is intended to offer general comments and views and is not intended to provide legal opinions. Readers should seek legal advice on the particular issues that concern them. All cases are different and the application of the law to even the slightest set of different facts can result in different legal outcomes. Before any decision is made in relation to your case, you should consult a lawyer. © All Rights Reserved 2011-2012 - Marc Nicholas Quinn, Ottawa Personal Injury Lawyer. -
Ottawa Accident Lawyers - Examination for Discovery - What is it?
Published on: Sunday September 18, 2011Ottawa Injury and Accident Lawyers - EXAMINATION FOR DISCOVERY
In Ontario, all parties adverse in interest in any law suit (called an action) has the right to examine the other parties in what is called examination for discovery.
The process starts with the parties exchanging affidavit of documents which lists all documents they have that are relevant to the issues in the action. Then, the parties exchange the documents. Then, the parties exchange notices of examination which sets the date, time and location of the examination. At the examination, which is usually completed at an official examiner's office ( held in a boardroom ), each party is given the opportunity to ask questions of the opposing parties. The person being examined gives their evidence ( testimony ) under oath, which is recorded by the official examiner, which can then bow transcribed for the
The questions asked must answered if they are relevant to any issue in the case. Many of the evidentiary objections available at trial are not available on discovery. Your lawyer attends the examination with you and can object to any improper questions.
Essentially, the examination process allows the parties to obtain all relevant information early in the process so that there are no surprises at trial. The examination process provides the parties and their lawyers to assess credibility, gain admissions, clarify factual and legal issues and assess the strengths and weaknesses of the case and defences.
Your lawyer will usually meet with you in advance if examination in order to prepare for the process and provide you with points such as, always tell the truth, read all your documents and those of the opposing parties prior to examination, be courteous, stay calm, answer the questions asked only, speak clearly and slowly, etc..
Often, an experienced personal injury lawyer can make the difference between a successful or devastating examination for discovery. At Quinn Thiele Mineault Grodzki, Ottawa Injury Lawyers, we have experienced accident and injury lawyers who can guide you through every step of a personal injury case. Call us for a free consultation and assessment of your case. Marc Quinn, Ottawa injury lawyer and mediator. 613-315-4878. Visit me at www.ottawapersonalinjurylawyernetwork.com. -
Ottawa Personal Injury Lawyers
Published on: Monday August 22, 2011At QTMG law firm, we offer free consultations and there is no fee unless you win. Contact us for a free consultation in relation to your personal injury matter. Call us at 613-563-1131. Marc Quinn, Injury Lawyer
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ELEMENTS OF A PERSONAL INJURY LAWSUIT
Published on: Sunday October 03, 2010By: Michael Thiele B.A., LL.B.
At Plant Quinn Thiele Mineault Grodzki we receive many inquiries from people who have been hurt, injured, traumatized, through many types of accidents. These accidents include such incidents as slip and falls, car accidents, assaults, things falling on people, dog bites, defective products--and many others that sometimes just seem utterly incredible. However, what is always clear is that the person calling has suffered a loss which can include income loss, job loss, pain and suffering, relationship breakdowns, loss of opportunity to earn income, loss of school year and academic opportunity. In all cases, the incident that caused the injury has created further complications and tragedy in the injured persons life that continue for a long period of time.
After explaining what happened to one of our lawyers, a client wants to know whether we can help them. They want to know whether they have a case. Whether a person has a case or not is truly a judgment call that reflects the experience and skill of the particular lawyer answering the question. Answering this question is made easier when the lawyer has a group of experienced lawyers to turn to within the same firm who are all working towards the same goal. At Plant Quinn Thiele Mineault Grodzki we have the lawyers to help you regardless of the circumstances of the incident that caused the injury.
While experience and skill is important, knowledge of the law applicable to the specific type of incident that caused the injury is critical. Personal Injury cases are generally within an area of law known as tort law. It is important to understand that a person only has a case if the legal test for damages is met. If the legal test can not be met on the facts--then an injured person may not succeed in their case.
To succeed in a lawsuit for personal injuries, the plaintiff must prove, on a balance of probabilities:
(a) injury to the plaintiff;
(b) the existence of a duty of care owed by the defendant to the plaintiff;
(c) the breach of the standard of care by the defendant;
(d) the defendant's breach caused the plaintiff's injury; and
(e) the injury must not be too remote a result of the defendant's conduct.
This foregoing test, as set out by the Ontario Superior Court of Justice in Greenhalgh v. Duoro-Drummer (Township), 2009 CarswellOnt 7995, is the first step in analyzing a situation to determine whether a lawsuit may or may not succeed. The skill arises in how the elements of the test are described and understood and of course how the facts are applied and understood to apply to the duty of care and the manner of the breach of that duty of care.
At Plant Quinn Thiele Mineault Grodzki our great success, and therefore the success of our clients has arisen from our ability to make the law work for our clients. -
When Should you Consult a Personal Injury Lawyer? by Marc-Nicholas Quinn
Published on: Thursday September 30, 2010When Should you Consult a Personal Injury Lawyer?
If you feel that you are unable to handle the file yourself for any reason, you should consult a lawyer right away. We recommend that you never represent yourself in a personal injury matter, although you are free to do so. There are some types of injuries or accidents that almost always require that you consult a lawyer. For instance, motor vehicle ( car accident ) cases are particularly complicated with numerous pitfalls that can hinder or kill your case. The skills of a lawyer who focus on accident and injury cases are well worth the money you may pay for legal representation. Most personal injury lawyers work on a contingency fee basis, meaning they charge nothing unless there is a settlement.
In many cases, you may need a lawyer because of complex legal rules involved in the case, because of the nature of the accident, because of the severity of your injuries or simply because you need to know your rights and know if you are receiving fair compensation. In many cases, you require an accident lawyer because your case has been denied. In some cases, you need an injury lawyer to deal with an insurance company (sometimes your own) who refuses to settle a matter or will settle, but not fairly and in good faith.
If you think you need an injury lawyer, chances are you do. We offer free consultations and NO Fee Until you Win arrangements. Call us at 613-315-4878 for a free consultation. www.pqtlaw.com -
Congratulations to our Ottawa Personal Injury and Accident Lawyer Team - $1.6 million in settlements - Mikolaj Grodzki: by Marc-Nicholas Quinn
Published on: Wednesday September 29, 2010
At Plant Quinn Thiele Mineault Grodzki, we take great pride in our accomplishments. We work very hard to represent injury victims and their families who have suffered financial, emotional, social and psychological harm because of the negligence or wrongful intention act of others. Our team was successful in obtaining more than $1.6million dollars in settlements for our clients in the last 2 months days alone.
Our accident and injury litigation and settlement team manager, Marc-Nicholas Quinn, is proud to support Mikolaj Grodzki of our law firm. Mikolaj, with a particular interest in helping motor vehicle accident / car accident victims, has supported many of our clients and their families. He has gone well beyond what is expected of him, carrying the files for years and never giving up. We have received many letters of thanks and appreciation of Mikolaj's efforts in supporting injured clients. At our downtown Ottawa injury law firm, we know that our success is measured by the success of our clients and we work hard to settle cases so that our clients are saved the stress and cost of litigation. If litigation is warranted, we have no fear of litigation (to use a common term "been there, done that"). However, as a great supporter of alternative dispute resolution methods, we often are able to settle cases without litigation or a lawsuit being commenced; and if litigation is needed, cases often settle early in the process at steps such as mediation.
If you have been injured in an accident, please call us for a free consultation. We take on cases on a contingency fee basis. We believe that we should not be paid if our clients are not compensated. We only get paid if our clients receive compensation. Call us at 613-315-HURT or 613-563-1131. Marc-Nicholas Quinn, Ottawa accident and personal injury lawyer, mediator and law instructor. -
Ottawa Lawyer Michael K. E. Thiele - Tenancy Termination Primer
Published on: Tuesday September 28, 2010By: Michael K.E. Thiele
Landlord and Tenant Lawyer
Ottawa, Ontario
TENANCY TERMINATION PRIMER
Prepared for Presentation at the Ottawa Tenant’s Conference
September 25, 2010
INTRODUCTION
In Ontario, unlike in other Canadian provinces, a residential lease does not end at the conclusion of the term that is set out in the lease document. Without doing anything, and regardless of whether there is an agreement to renew the lease, a tenant’s lease continues on a month to month basis at the conclusion of the lease term. This is because the Residential Tenancies Act deems a lease to be renewed on the same terms and conditions that were in the expired tenancy agreement.
What this means is that a residential lease, in Ontario, continues indefinitely, until such time as it is terminated by a legally delivered Notice of Termination. This is a key aspect of what is known as “security of tenure”.
TENANT GIVING NOTICE TO TERMINATE
How then does a tenant end the indefinite perpetual lease? To end a lease, legally, a tenant must deliver a Notice of Termination to the landlord which specifies that the tenant is terminating the tenancy as of a date at least 60 days in the future. The termination date (the last day that the tenant intends to be in possession of the rental unit) that is set out in the notice must be the last day of the term–which normally is the day before the rent is due. A tenant may not give 60 days notice to terminate in the middle of a month or any other day of a month other than the last day of the term–i.e. normally the day before rent is due.
It is important for tenants to understand that the right to terminate a tenancy on 60 days notice is restricted and only available when the tenant is on a month to month lease or for the end of a term of fixed term tenancy. In short, if a tenant is on a fixed term tenancy, the soonest that the lease may be terminated–by notice– is for the end of term. Hence, if a tenant has signed a lease for one year, six months, two years, etc., the earliest that the lease may be terminated by notice from the tenant is for the end of that fixed term.
AGREEMENT TO TERMINATE
What of the situation where a tenant has signed a longer term lease but needs to move out? The first thing a tenant should do is consider speaking with the landlord to see if the landlord would agree to a termination of the tenancy early. If the landlord is agreeable to terminating the tenancy early then the landlord and tenant would sign an agreement to terminate. If such an agreement is signed there is no requirement to give a Notice of Termination.
SUBLETTING AND ASSIGNMENT
Where a landlord will not agree to an early termination of a fixed term tenancy the law provides that a tenant may then seek to assign or sublet their tenancy. The rules relating to subletting and assigning are indeed fairly technical and detailed and beyond the immediate scope of this paper. However, by overview, a sublet is a situation where a tenant finds a person to assume their tenancy for a period of time (while they are away) and then returns to resume the tenancy at some later date. The tenant must obtain the landlord’s consent to a sublet–though the law requires the landlord to not unreasonably or arbitrarily withhold consent. Throughout the term of the sublet, a tenant remains liable to the landlord for the rent and for the conduct of the subtenant. As such, if a tenant is going to sublet it is very important to carefully select the subtenant as the tenant will be financially responsible for the actions of the subtenant and the subtenant’s guests.
If a tenant has no intention of returning to the rental unit, then the other possibility provided for in the law is for the tenant to assign the tenancy to a new person. In an assignment, a tenant in fact transfers a tenancy to a new person. The new person steps fully into the shoes of the old tenant and assumes all responsibility and liability for the rental unit. Therefore, the old tenant ceases to be responsible for the premises upon the lease being assigned to a new person. A landlord does have the right to refuse an assignment (generally) and also specifically to proposed new tenants. Where the landlord refuses to allow an assignment generally–the law then allows the tenant to terminate the tenancy early. Where a landlord unreasonably refuses an assignment to a specific person a tenant may seek an Order from the landlord and tenant board to authorize the tenancy or alternatively to terminate the tenancy early.
TERMINATION OF TENANCY BY LANDLORD
Security of tenure and the presumption that a lease continues indefinitely is of course not absolute. A landlord may terminate a tenancy for “fault grounds” as well as for “no fault grounds”. In the case of both fault and no fault grounds a landlord must serve a tenant with a Notice of Termination. This Notice is in a format provided by the Ontario Landlord and Tenant Board and the exact wording on the forms is provided by law. A landlord is not permitted to simply make up their own Notice of Termination.
A Notice of Termination given to a tenant, by a landlord, has very strict and technical requirements. The slightest error in the Notice of Termination can make the notice void–meaning that it is invalid and the landlord has to start all over again. The reason for the strict requirements is that the law in Ontario is structured to maintain tenancies so that persons are not evicted from their homes.
It is important to understand that the Residential Tenancies Act sets out all of the reasons for which a landlord is permitted to terminate a tenancy. If a landlord wishes to terminate a tenancy for a reason that is not provided in the law the landlord is prohibited from doing so. Just because a landlord wishes to end a tenancy does not mean that the landlord can legally do so. The reason for wanting to end a tenancy must be provided for in the law, otherwise, a tenant is fully within their legal rights to continue the tenancy even over the objections of the landlord.
TERMINATION FOR Non-Payment of Rent
The most common fault based Notice of Termination that is served by a landlord is a Notice of Termination for Non-Payment of Rent (Form N4). This Notice, as do all the other types of Notices, contains a termination date. The “termination date” is the date that the tenancy ends, and is the date that the landlord expects the tenant to vacate the rental unit. The amount of time between the tenant receiving the Notice of Termination and the Termination date varies depending on the type of Notice of Termination being served. In the case of a Notice of Termination for Non-Payment of Rent, a tenant will receive a minimum of 14 days between the date of service of the Notice and the Termination date contained within the N4–Notice to Terminate.
OTHER FOR “FAULT” TERMINATION NOTICES
Other fault grounds on which a landlord can serve a Notice of Termination include: termination for substantial interference with reasonable enjoyment (form N5), termination for committing an illegal act (form N6), termination for misrepresentation of income (form N6), termination for impairing safety of other tenants (form N7), termination for willful damage of property (form N7), termination for persistent late payment of rent (form N8). Each of these Notices of Termination have different termination dates and each have specific and unique requirements.
Some of the Notices, like the N4 and N5 are voidable notices meaning that a tenant is permitted to correct the behaviours complained of and maintain the tenancy. Other Notices are not voidable–meaning a tenant has no opportunity to correct their behaviour to maintain the tenancy.
WHAT TO DO WHEN RECEIVING A FAULT TERMINATION NOTICE
Just because a tenant receives a Notice of Termination from their landlord does not mean that the tenancy is ended. Please remember that each Notice of Termination contains important instructions that outline some of the tenant’s rights. Most importantly, if a tenant disagrees with the contents of a Notice the law allows them to remain in the rental unit. If a landlord still wants the tenancy terminated the landlord is forced to apply to the Ontario Landlord and Tenant Board to get an Order to evict the tenant. This application is done with notice to the tenant and a hearing is held in front of an adjudicator (like a judge). At the hearing, the landlord has the burden of proof to prove that the tenant has done the things alleged in the Notice of Termination. A tenant has the right to cross-examine the landlord and his or her witnesses and to challenge the landlord’s evidence. The tenant, along with his/her witnesses also get to testify and tell the adjudicator what actually happened, if anything.
The adjudicator, based on the evidence will decide what the accurate facts are and will decide what the penalty should be if it is found that the tenant did the things as alleged in the Notice of Termination. Be aware, that an adjudicator has the discretion to NOT evict someone even if the landlord proves the allegations against the tenant. Just because a landlord proves an allegation does not mean that it is appropriate for a tenant to be evicted for that transgression. A good example is in a case of non-payment of rent where a tenant is in arrears of rent due to the loss of a job, illness, or some other misfortune. While the landlord can prove non-payment of the rent, the Landlord and Tenant Board, instead of ordering eviction for non-payment of rent, can order the landlord to accept a comprehensive payment plan that takes into account future rent obligations and the arrears. Such a payment plan can allow a tenant to maintain their tenancy even though the rent has not been paid on the due date.
The caselaw is full of examples of adjudicators exercising their discretion to not evict a tenant. Sometimes eviction is simply too harsh a consequence for the transgression that is alleged. Sometimes the transgression arises from a disability or health condition that is beyond the control of the tenant and hence it would not be appropriate to evict if a suitable alternative can be found. Other times, an adjudicator can be convinced that the transgression was an anomaly, is unlikely to happen again, and accepts the remorse of the tenant. In those instances an adjudicator can refuse the eviction on the simple basis that the tenant is being given a second chance.
Because of the broad powers that an adjudicator has it is a mistake for a tenant to act as their own lawyer when receiving Notices of Termination. A tenant simply can not know the full range of options and possible outcomes no matter how obvious the situation may seem. When the situation is serious a tenant should always seek legal help. Legal help is available from community legal clinics, duty counsel at the landlord and tenant board, and from private lawyers (like the author of this paper). It is always worth it to at least make some cursory inquiries before reacting to a Notice of Termination or making any kind of deal with the landlord. Be informed—know your rights!
“NO FAULT TERMINATION” BY LANDLORD
No fault termination of a lease is a situation where the landlord can terminate a tenant’s lease for grounds that have nothing to do with the conduct of the tenant (i.e. non-payment of rent, interfering with reasonable enjoyment, etc.). People often believe that one of the no fault grounds for termination of a lease is when the lease term expires. As stated earlier in this paper, the right of a tenant to occupy a rental unit does not end with the expiry of a fixed term lease. By law, the lease continues on a month to month basis until such time as it is terminated by a valid legal notice the grounds of which are provided under the Residential Tenancies Act.
So, if the end of the term of a lease is a not a basis for a landlord to terminate a lease on “no fault” grounds—what is? The most common such Notice of Termination is a termination for a landlord’s own use or for purchasers own use. A Notice of Termination for Landlord’s own use (purchasers use) is served in Form N12. Like the Notices of Termination for cause, the requirements of the Notice are very strict and if the landlord makes a mistake in the Notice the entire Notice can be void and the landlord would need to start over from the beginning. Where a landlord wishes to take over the premises for his/her own use the landlord needs to give the tenant 60 days of notice. The last day of the notice period must be at the end of the term, must be given so that the landlord can use the premises for residential purposes, and must be given in good faith.
Because the Notice is not given for anything that the tenant did or did not do, there is no opportunity to void the notice or to continue the tenancy. Note that a way to protect against receiving this type of Notice of Termination is to enter into a fixed term tenancy. A landlord is not able to terminate a fixed term tenancy, on no fault grounds, before the end of the fixed term.
Because the termination on no fault grounds does not depend on the conduct of the tenant, this type of notice of termination is more susceptible to abuse by landlords who simply wish to see a tenant leave. What should a tenant do if they suspect that a landlord has served an N12 in bad faith?
Firstly, a tenant should know that receiving a Notice of Termination, based on a no fault ground, does not require the tenant to move out by the termination date stipulated in the Notice of Termination. A tenant may choose to remain in the rental unit and require the landlord to proceed to the Landlord and Tenant Board to obtain an Order terminating the tenancy. In many cases the landlord will be successful—however, there are exceptions. A tenant may defend a landlord’s application on the basis that the Notice of Termination was not served in good faith, that the landlord (or designate) does not intend to occupy the premises for residential purposes, that the Notice of Termination was served because the tenant was pursuing his or her legal rights, that the landlord remains in substantial breach of his or her obligations under the Residential Tenancies Act, that the tenancy should not be terminated in the exercise of the Board’s discretion, and that there are Human Rights Act grounds to maintain the tenancy.
The basis of a defence to a no fault termination will of course depend on the facts and circumstances of each tenancy. Sometimes, the defence can be as simple as a request for more time----a prime example being to maintain the tenancy to the end of a school year to allow a tenant’s child to finish up in the same school.
OTHER NO FAULT TERMINATION BY LANDLORD
Aside from a no fault termination for Landlord’s own use/purchasers own use, the other no fault ground includes a termination for demolition, conversion, or repair of the rental unit. This type of Notice is served in form N13, and like all of the other forms contains varying notice periods and strict requirements in order for the notice to be valid. If the landlord fails to comply with the strict requirements of the form it will be void and the tenancy cannot be terminated until a proper new notice is served that gives the tenant the proper full notice. The form itself contains information for the tenant, and again a tenant is not required to move out as a result of this notice. A tenant may demand that the landlord proceed to a hearing before the Ontario Landlord and Tenant Board and a tenant may defend against the termination of the tenancy.
THE LANDLORD HAS AN ORDER---WHAT NOW?
If the landlord served a Notice of Termination (fault or no fault), then filed an application to the Ontario Landlord and Tenant Board (in Ottawa, Ontario, it is located at 255 Albert Street, 4th Floor), and proceeded to a hearing that the tenant attended or failed to attend, then the Ontario Landlord and Tenant Board will have proceeded to make an Order. The Order is mailed to the landlord and to the tenant.
The Order recites the names of the landlord and tenant, and the address of the rental unit. The Order will state the reason for the landlord’s application. Thereafter, the Order will state who was present, who the witnesses were, what the evidence in support of the application was and what the evidence in support of the tenant was. The Order will then make findings of fact—which essentially is a weighing of the evidence with the adjudicator choosing between contradictory information that was provided through the witnesses. The findings of fact then lead to the adjudicator making a legal conclusion—which is the decision. Usually under a heading entitled “It is Ordered that” the adjudicator will either dismiss the application or state that the tenancy is terminated and provide a time that the tenant must vacate the unit by failing which the landlord may get the sheriff to enforce the eviction. Note that the under this same heading the adjudicator may exercise his or her discretion and set out a series of conditions that, if followed, will allow the tenancy to continue.
CHALLENGING THE ORDER (REVIEW & APPEAL)
It is important for a tenant to know that an Order of the Ontario Landlord and Tenant Board may be challenged in two ways. The first way of challenging an Order is to seek a Request to Review . The Request to Review procedure is designed to allow a person to bring to the Board’s attention that a serious error may have occurred in the proceeding. If a party can establish that there was a serious error then the Order may be set aside and a new hearing may be granted. The nature of what constitutes a “serious error” is undefined . However, a “serious error” would include a situation where a party did not get notice of a hearing or was unable to participate in the hearing through no fault of their own. A Request to Review is fairly technical and it must be completed fully and thoroughly in writing upon filing of the request. If the review request fails to substantiate a preliminary finding that there was a serious error then there is a substantial risk that the Board would refuse the Request to Review without scheduling a hearing.
If an adjudicator is satisfied that there was a serious error in a proceeding then the Order that flowed from the flawed proceeding will be set aside. For the most part, the Board will then proceed with a hearing de novo—a new hearing---where all of the evidence must be called again and the matter is fully reheard.
APPEAL TO DIVISIONAL COURT
The other recourse to challenge an Order of the Landlord and |Tenant Board is to appeal the decision to the Superior Court of Justice (Divisional Court). An appeal to the Divisional Court may only be taken on errors of law—meaning that findings of fact may not be challenged before the Divisional Court. In the event that the Divisional Court finds that the Landlord and Tenant Board did commit an error of law in reaching the decision the Court may affirm, rescind, amend or replace the Order under appeal or it may remit the matter back to the Board with the opinion of the Court. An appeal to the Divisional Court is pursued in accordance with the Rules of Civil Procedure and the full formality of the civil court process is required to be followed.
THE SHERIFF
In the event that an eviction Order is upheld with no Request to Review nor Appeal being successful, a landlord will eventually direct the Sheriff to attend the rental unit to grant vacant possession. When the Sheriff is directed to give vacant possession the procedure that is followed, almost always, is that the Sheriff will attend at the rental unit and will post a Notice to Vacate on the rental unit door. The Notice to Vacate normally provides the tenant with 7 days to vacate the rental unit and it will indicate when the Sheriff will return to enforce the eviction. On the date specified in the Notice, the Sheriff will return to the rental unit at which time the locks will be changed and the tenant and other occupants will be physically removed if necessary. The Sheriff will give the landlord a certificate confirming that the landlord is in vacant possession of the premises. Thereafter, if the tenant returns or enters the unit, the tenant will be trespassing and may be arrested for being illegally in the rental unit.
Be aware, that in Ontario it is only the Sheriff that is empowered to enforce eviction Orders from the Landlord and Tenant Board. A landlord is not permitted to enforce the eviction order by himself or with the help of some friends.
Sometimes, tenants are taken completely by surprise and are in a state of disbelief when the sheriff actually physically removes them from their home. In those instances, arrangements have not been made to remove personal property and possessions. The Sheriff only removes people from rental units and not personal property. To deal with this situation the Residential Tenancies Act allows a tenant a short period of time, after physical eviction, to get their personal property out of the rental unit. After this period of time the landlord is allowed to throw it out, keep it, or sell it. In these circumstances it is best to obtain immediate legal advice on an urgent basis.
CONCLUSION
People are often left with the impression that landlord and tenant issues are straightforward and that they can resolve the issues themselves. In fact, the law respecting Notices of Termination is highly complex and ever evolving. It is simply not realistic for a lay-person to represent their own interests especially when the security of their home is at stake. Given the legal implications and possible eviction flowing from a Notice of Termination it is always advisable to get legal advice prior to proceeding to a hearing in front of the Ontario Landlord and Tenant Board.
Michael K.E. Thiele
Lawyer
Plant Quinn Thiele Mineault Grodzki PC
310 O’Connor Street, Ottawa Ontario
K2P 1V8
Tel: 613.563.1131
Fax: 613.230.8297 -
TENANCY TERMINATION PRIMER
Published on: Sunday September 26, 2010TENANCY TERMINATION PRIMER
Prepared for Presentation at the Ottawa Tenant’s Conference
September 25, 2010
** Annotated version of this paper is available at the link indicated.
INTRODUCTION
In Ontario, unlike in other Canadian provinces, a residential lease does not end at the conclusion of the term that is set out in the lease document. Without doing anything, and regardless of whether there is an agreement to renew the lease, a tenant’s lease continues on a month to month basis at the conclusion of the lease term. This is because the Residential Tenancies Act deems a lease to be renewed on the same terms and conditions that were in the expired tenancy agreement.
What this means is that a residential lease, in Ontario, continues indefinitely, until such time as it is terminated by a legally delivered Notice of Termination. This is a key aspect of what is known as “security of tenure”.
TENANT GIVING NOTICE TO TERMINATE
How then does a tenant end the indefinite perpetual lease? To end a lease, legally, a tenant must deliver a Notice of Termination to the landlord which specifies that the tenant is terminating the tenancy as of a date at least 60 days in the future. The termination date (the last day that the tenant intends to be in possession of the rental unit) that is set out in the notice must be the last day of the term–which normally is the day before the rent is due. A tenant may not give 60 days notice to terminate in the middle of a month or any other day of a month other than the last day of the term–i.e. normally the day before rent is due.
It is important for tenants to understand that the right to terminate a tenancy on 60 days notice is restricted and only available when the tenant is on a month to month lease or for the end of a term of fixed term tenancy. In short, if a tenant is on a fixed term tenancy, the soonest that the lease may be terminated–by notice– is for the end of term. Hence, if a tenant has signed a lease for one year, six months, two years, etc., the earliest that the lease may be terminated by notice from the tenant is for the end of that fixed term.
AGREEMENT TO TERMINATE
What of the situation where a tenant has signed a longer term lease but needs to move out? The first thing a tenant should do is consider speaking with the landlord to see if the landlord would agree to a termination of the tenancy early. If the landlord is agreeable to terminating the tenancy early then the landlord and tenant would sign an agreement to terminate. If such an agreement is signed there is no requirement to give a Notice of Termination.
SUBLETTING AND ASSIGNMENT
Where a landlord will not agree to an early termination of a fixed term tenancy the law provides that a tenant may then seek to assign or sublet their tenancy. The rules relating to subletting and assigning are indeed fairly technical and detailed and beyond the immediate scope of this paper. However, by overview, a sublet is a situation where a tenant finds a person to assume their tenancy for a period of time (while they are away) and then returns to resume the tenancy at some later date. The tenant must obtain the landlord’s consent to a sublet–though the law requires the landlord to not unreasonably or arbitrarily withhold consent. Throughout the term of the sublet, a tenant remains liable to the landlord for the rent and for the conduct of the subtenant. As such, if a tenant is going to sublet it is very important to carefully select the subtenant as the tenant will be financially responsible for the actions of the subtenant and the subtenant’s guests.
If a tenant has no intention of returning to the rental unit, then the other possibility provided for in the law is for the tenant to assign the tenancy to a new person. In an assignment, a tenant in fact transfers a tenancy to a new person. The new person steps fully into the shoes of the old tenant and assumes all responsibility and liability for the rental unit. Therefore, the old tenant ceases to be responsible for the premises upon the lease being assigned to a new person. A landlord does have the right to refuse an assignment (generally) and also specifically to proposed new tenants. Where the landlord refuses to allow an assignment generally–the law then allows the tenant to terminate the tenancy early. Where a landlord unreasonably refuses an assignment to a specific person a tenant may seek an Order from the landlord and tenant board to authorize the tenancy or alternatively to terminate the tenancy early.
TERMINATION OF TENANCY BY LANDLORD
Security of tenure and the presumption that a lease continues indefinitely is of course not absolute. A landlord may terminate a tenancy for “fault grounds” as well as for “no fault grounds”. In the case of both fault and no fault grounds a landlord must serve a tenant with a Notice of Termination. This Notice is in a format provided by the Ontario Landlord and Tenant Board and the exact wording on the forms is provided by law. A landlord is not permitted to simply make up their own Notice of Termination.
A Notice of Termination given to a tenant, by a landlord, has very strict and technical requirements. The slightest error in the Notice of Termination can make the notice void–meaning that it is invalid and the landlord has to start all over again. The reason for the strict requirements is that the law in Ontario is structured to maintain tenancies so that persons are not evicted from their homes.
It is important to understand that the Residential Tenancies Act sets out all of the reasons for which a landlord is permitted to terminate a tenancy. If a landlord wishes to terminate a tenancy for a reason that is not provided in the law the landlord is prohibited from doing so. Just because a landlord wishes to end a tenancy does not mean that the landlord can legally do so. The reason for wanting to end a tenancy must be provided for in the law, otherwise, a tenant is fully within their legal rights to continue the tenancy even over the objections of the landlord.
TERMINATION FOR Non-Payment of Rent
The most common fault based Notice of Termination that is served by a landlord is a Notice of Termination for Non-Payment of Rent (Form N4). This Notice, as do all the other types of Notices, contains a termination date. The “termination date” is the date that the tenancy ends, and is the date that the landlord expects the tenant to vacate the rental unit. The amount of time between the tenant receiving the Notice of Termination and the Termination date varies depending on the type of Notice of Termination being served. In the case of a Notice of Termination for Non-Payment of Rent, a tenant will receive a minimum of 14 days between the date of service of the Notice and the Termination date contained within the N4–Notice to Terminate.
OTHER FOR “FAULT” TERMINATION NOTICES
Other fault grounds on which a landlord can serve a Notice of Termination include: termination for substantial interference with reasonable enjoyment (form N5), termination for committing an illegal act (form N6), termination for misrepresentation of income (form N6), termination for impairing safety of other tenants (form N7), termination for willful damage of property (form N7), termination for persistent late payment of rent (form N8). Each of these Notices of Termination have different termination dates and each have specific and unique requirements.
Some of the Notices, like the N4 and N5 are voidable notices meaning that a tenant is permitted to correct the behaviours complained of and maintain the tenancy. Other Notices are not voidable–meaning a tenant has no opportunity to correct their behaviour to maintain the tenancy.
WHAT TO DO WHEN RECEIVING A FAULT TERMINATION NOTICE
Just because a tenant receives a Notice of Termination from their landlord does not mean that the tenancy is ended. Please remember that each Notice of Termination contains important instructions that outline some of the tenant’s rights. Most importantly, if a tenant disagrees with the contents of a Notice the law allows them to remain in the rental unit. If a landlord still wants the tenancy terminated the landlord is forced to apply to the Ontario Landlord and Tenant Board to get an Order to evict the tenant. This application is done with notice to the tenant and a hearing is held in front of an adjudicator (like a judge). At the hearing, the landlord has the burden of proof to prove that the tenant has done the things alleged in the Notice of Termination. A tenant has the right to cross-examine the landlord and his or her witnesses and to challenge the landlord’s evidence. The tenant, along with his/her witnesses also get to testify and tell the adjudicator what actually happened, if anything.
The adjudicator, based on the evidence will decide what the accurate facts are and will decide what the penalty should be if it is found that the tenant did the things as alleged in the Notice of Termination. Be aware, that an adjudicator has the discretion to NOT evict someone even if the landlord proves the allegations against the tenant. Just because a landlord proves an allegation does not mean that it is appropriate for a tenant to be evicted for that transgression. A good example is in a case of non-payment of rent where a tenant is in arrears of rent due to the loss of a job, illness, or some other misfortune. While the landlord can prove non-payment of the rent, the Landlord and Tenant Board, instead of ordering eviction for non-payment of rent, can order the landlord to accept a comprehensive payment plan that takes into account future rent obligations and the arrears. Such a payment plan can allow a tenant to maintain their tenancy even though the rent has not been paid on the due date.
The caselaw is full of examples of adjudicators exercising their discretion to not evict a tenant. Sometimes eviction is simply too harsh a consequence for the transgression that is alleged. Sometimes the transgression arises from a disability or health condition that is beyond the control of the tenant and hence it would not be appropriate to evict if a suitable alternative can be found. Other times, an adjudicator can be convinced that the transgression was an anomaly, is unlikely to happen again, and accepts the remorse of the tenant. In those instances an adjudicator can refuse the eviction on the simple basis that the tenant is being given a second chance.
Because of the broad powers that an adjudicator has it is a mistake for a tenant to act as their own lawyer when receiving Notices of Termination. A tenant simply can not know the full range of options and possible outcomes no matter how obvious the situation may seem. When the situation is serious a tenant should always seek legal help. Legal help is available from community legal clinics, duty counsel at the landlord and tenant board, and from private lawyers (like the author of this paper). It is always worth it to at least make some cursory inquiries before reacting to a Notice of Termination or making any kind of deal with the landlord. Be informed—know your rights!
“NO FAULT TERMINATION” BY LANDLORD
No fault termination of a lease is a situation where the landlord can terminate a tenant’s lease for grounds that have nothing to do with the conduct of the tenant (i.e. non-payment of rent, interfering with reasonable enjoyment, etc.). People often believe that one of the no fault grounds for termination of a lease is when the lease term expires. As stated earlier in this paper, the right of a tenant to occupy a rental unit does not end with the expiry of a fixed term lease. By law, the lease continues on a month to month basis until such time as it is terminated by a valid legal notice the grounds of which are provided under the Residential Tenancies Act.
So, if the end of the term of a lease is a not a basis for a landlord to terminate a lease on “no fault” grounds—what is? The most common such Notice of Termination is a termination for a landlord’s own use or for purchasers own use. A Notice of Termination for Landlord’s own use (purchasers use) is served in Form N12. Like the Notices of Termination for cause, the requirements of the Notice are very strict and if the landlord makes a mistake in the Notice the entire Notice can be void and the landlord would need to start over from the beginning. Where a landlord wishes to take over the premises for his/her own use the landlord needs to give the tenant 60 days of notice. The last day of the notice period must be at the end of the term, must be given so that the landlord can use the premises for residential purposes, and must be given in good faith.
Because the Notice is not given for anything that the tenant did or did not do, there is no opportunity to void the notice or to continue the tenancy. Note that a way to protect against receiving this type of Notice of Termination is to enter into a fixed term tenancy. A landlord is not able to terminate a fixed term tenancy, on no fault grounds, before the end of the fixed term.
Because the termination on no fault grounds does not depend on the conduct of the tenant, this type of notice of termination is more susceptible to abuse by landlords who simply wish to see a tenant leave. What should a tenant do if they suspect that a landlord has served an N12 in bad faith?
Firstly, a tenant should know that receiving a Notice of Termination, based on a no fault ground, does not require the tenant to move out by the termination date stipulated in the Notice of Termination. A tenant may choose to remain in the rental unit and require the landlord to proceed to the Landlord and Tenant Board to obtain an Order terminating the tenancy. In many cases the landlord will be successful—however, there are exceptions. A tenant may defend a landlord’s application on the basis that the Notice of Termination was not served in good faith, that the landlord (or designate) does not intend to occupy the premises for residential purposes, that the Notice of Termination was served because the tenant was pursuing his or her legal rights, that the landlord remains in substantial breach of his or her obligations under the Residential Tenancies Act, that the tenancy should not be terminated in the exercise of the Board’s discretion, and that there are Human Rights Act grounds to maintain the tenancy.
The basis of a defence to a no fault termination will of course depend on the facts and circumstances of each tenancy. Sometimes, the defence can be as simple as a request for more time----a prime example being to maintain the tenancy to the end of a school year to allow a tenant’s child to finish up in the same school.
OTHER NO FAULT TERMINATION BY LANDLORD
Aside from a no fault termination for Landlord’s own use/purchasers own use, the other no fault ground includes a termination for demolition, conversion, or repair of the rental unit. This type of Notice is served in form N13, and like all of the other forms contains varying notice periods and strict requirements in order for the notice to be valid. If the landlord fails to comply with the strict requirements of the form it will be void and the tenancy cannot be terminated until a proper new notice is served that gives the tenant the proper full notice. The form itself contains information for the tenant, and again a tenant is not required to move out as a result of this notice. A tenant may demand that the landlord proceed to a hearing before the Ontario Landlord and Tenant Board and a tenant may defend against the termination of the tenancy.
THE LANDLORD HAS AN ORDER---WHAT NOW?
If the landlord served a Notice of Termination (fault or no fault), then filed an application to the Ontario Landlord and Tenant Board (in Ottawa, Ontario, it is located at 255 Albert Street, 4th Floor), and proceeded to a hearing that the tenant attended or failed to attend, then the Ontario Landlord and Tenant Board will have proceeded to make an Order. The Order is mailed to the landlord and to the tenant.
The Order recites the names of the landlord and tenant, and the address of the rental unit. The Order will state the reason for the landlord’s application. Thereafter, the Order will state who was present, who the witnesses were, what the evidence in support of the application was and what the evidence in support of the tenant was. The Order will then make findings of fact—which essentially is a weighing of the evidence with the adjudicator choosing between contradictory information that was provided through the witnesses. The findings of fact then lead to the adjudicator making a legal conclusion—which is the decision. Usually under a heading entitled “It is Ordered that” the adjudicator will either dismiss the application or state that the tenancy is terminated and provide a time that the tenant must vacate the unit by failing which the landlord may get the sheriff to enforce the eviction. Note that the under this same heading the adjudicator may exercise his or her discretion and set out a series of conditions that, if followed, will allow the tenancy to continue.
CHALLENGING THE ORDER (REVIEW & APPEAL)
It is important for a tenant to know that an Order of the Ontario Landlord and Tenant Board may be challenged in two ways. The first way of challenging an Order is to seek a Request to Review . The Request to Review procedure is designed to allow a person to bring to the Board’s attention that a serious error may have occurred in the proceeding. If a party can establish that there was a serious error then the Order may be set aside and a new hearing may be granted. The nature of what constitutes a “serious error” is undefined . However, a “serious error” would include a situation where a party did not get notice of a hearing or was unable to participate in the hearing through no fault of their own. A Request to Review is fairly technical and it must be completed fully and thoroughly in writing upon filing of the request. If the review request fails to substantiate a preliminary finding that there was a serious error then there is a substantial risk that the Board would refuse the Request to Review without scheduling a hearing.
If an adjudicator is satisfied that there was a serious error in a proceeding then the Order that flowed from the flawed proceeding will be set aside. For the most part, the Board will then proceed with a hearing de novo—a new hearing---where all of the evidence must be called again and the matter is fully reheard.
APPEAL TO DIVISIONAL COURT
The other recourse to challenge an Order of the Landlord and |Tenant Board is to appeal the decision to the Superior Court of Justice (Divisional Court). An appeal to the Divisional Court may only be taken on errors of law—meaning that findings of fact may not be challenged before the Divisional Court. In the event that the Divisional Court finds that the Landlord and Tenant Board did commit an error of law in reaching the decision the Court may affirm, rescind, amend or replace the Order under appeal or it may remit the matter back to the Board with the opinion of the Court. An appeal to the Divisional Court is pursued in accordance with the Rules of Civil Procedure and the full formality of the civil court process is required to be followed.
THE SHERIFF
In the event that an eviction Order is upheld with no Request to Review nor Appeal being successful, a landlord will eventually direct the Sheriff to attend the rental unit to grant vacant possession. When the Sheriff is directed to give vacant possession the procedure that is followed, almost always, is that the Sheriff will attend at the rental unit and will post a Notice to Vacate on the rental unit door. The Notice to Vacate normally provides the tenant with 7 days to vacate the rental unit and it will indicate when the Sheriff will return to enforce the eviction. On the date specified in the Notice, the Sheriff will return to the rental unit at which time the locks will be changed and the tenant and other occupants will be physically removed if necessary. The Sheriff will give the landlord a certificate confirming that the landlord is in vacant possession of the premises. Thereafter, if the tenant returns or enters the unit, the tenant will be trespassing and may be arrested for being illegally in the rental unit.
Be aware, that in Ontario it is only the Sheriff that is empowered to enforce eviction Orders from the Landlord and Tenant Board. A landlord is not permitted to enforce the eviction order by himself or with the help of some friends.
Sometimes, tenants are taken completely by surprise and are in a state of disbelief when the sheriff actually physically removes them from their home. In those instances, arrangements have not been made to remove personal property and possessions. The Sheriff only removes people from rental units and not personal property. To deal with this situation the Residential Tenancies Act allows a tenant a short period of time, after physical eviction, to get their personal property out of the rental unit. After this period of time the landlord is allowed to throw it out, keep it, or sell it. In these circumstances it is best to obtain immediate legal advice on an urgent basis.
CONCLUSION
People are often left with the impression that landlord and tenant issues are straightforward and that they can resolve the issues themselves. In fact, the law respecting Notices of Termination is highly complex and ever evolving. It is simply not realistic for a lay-person to represent their own interests especially when the security of their home is at stake. Given the legal implications and possible eviction flowing from a Notice of Termination it is always advisable to get legal advice prior to proceeding to a hearing in front of the Ontario Landlord and Tenant Board.
Michael K.E. Thiele
Lawyer
Plant Quinn Thiele Mineault Grodzki PC
310 O’Connor Street, Ottawa Ontario
K2P 1V8
Tel: 613.563.1131
Fax: 613.230.8297
