ELEMENTS OF A PERSONAL INJURY LAWSUIT

By: 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

When 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

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

By: 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

TENANCY 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

OTTAWA TENANTS CONFERENCE 2010

On September 25, 2010, Michael Thiele spoke at the annual Ottawa Tenant's Conference. This conference highlights issues that are facing residential tenants in Ontario but more specifically in Eastern Ontario. Mr. Thiele conducted a workshop that focused on Termination of Residential Tenancies. This workshop high-lighted the structure of a residential lease, the right of a tenant to continue a residential lease beyong a term, and that a residential lease may only be terminated by agreement between landlord and tenant or by a Notice of Termination as explicitly provided under the Residential Tenancies Act.

The workshop was very popular generating much discussion amongst the participants and unfortunately it only last an hour. A paper that was not available at the conference is available at the following link: https://files.me.com/pqtlaw/yjuqo7 (if this link is not active in your browser-cut and paste it). The paper entitled TENANCY TERMINATION PRIMER should also be available on the Ottawa Tenants Conference website which is located at www.ottawatenantsconference.ca . Inquiries to have a copy mailed to you may be made on the website as well.

Thank you all for those who attended it was nice to meet you and very informative for me as well.

Michael Thiele

Ottawa Accident Lawyers - The use of future care cost and needs assessments and life planning reports in personal injury cases: by Marc-Nicholas Quinn

Ottawa Accident Lawyers - The use of future care cost and needs assessments and life planning reports in personal injury cases: by Marc-Nicholas Quinn, Personal Injury Lawyer and Mediator

Serious illness or personal injury can present a significant financial burden to an individual and/or their families. Future care expenses can often cost hundreds of thousands of dollars, and in the worst of cases, sometimes millions. In order to assess the costs of future care, personal injury lawyers turn to experts who complete thorough assessments of the associated costs an injured person is likely to incur in the future. Future care cost and needs assessments are completed based on published standards of practice for Life Care Planning. The assessments provide assessment and support of the costs of future care for an injured person's current and projected services, medical treatment, medical needs, equipment, therapies, interventions etc... The assessments are usually completed on the basis of attempting to assist an injured person to maximum independence, prevent functional deterioration and provide replacement services for those tasks the injured person is no longer able to complete.

The reports solicited summarizes a client’s future medical needs and expenses. Future care costs and needs assessments are valuable tools your personal injury lawyer can use during negotiations with opposing counsel, insurers and adjusters in or out of Court, at settlement conferences and in mediation sessions. The report, in addition to other valuable information, synthesises valuable medical and expense information from all data sources, including medical documents and quantifies recommendations to establish a comprehensive life care plan.

Costs of future care assessments involve a detailed assessment of the client’s functioning in areas such as medical needs, rehabilitation requirements, equipment needs, home support needs, renovation needs, attendant care requirements, medical devices needs, adaptation needs, vocational needs and environmental modification requirements.

Cost of Future Care Assessments consist of a comprehensive report based on a full functional assessment. They often involve full in home evaluation and consultation by health care professionals who help determine an appropriate plan of future care with all associated costs that entails. In turn, as personal injury lawyers, our job includes using the reports as one tool to obtain fair and reasonable compensation for our injured clients.

At Plant Quinn Thiele Mineault Grodzki PC, we are committed to providing expert advice on the legal issues relating to our injured client’s matters and when needed, we will retain the services of medical experts, rehabilitation and consulting services experts to assess the needs of the clients who retain us. Our team of legal professionals has extensive experience in planning and providing excellent legal services including the value of consulting other experts needed to maximize our client’s financial recovery and well being.

Future care cost and needs assessments and life planning reports are used for settlement and rehabilitation planning purposes. Our law firm is able to provide a unique and valuable service to our clients by locating and retaining experts who can complete the assessments and reports.

We refer such needed expert assessments to reputable multi disciplinary experts who consist of any combination of the following: social workers, speech-language pathologists, occupational therapists, physical therapists and other medical experts. These experts can provide valuable expert opinions and guidance based on their experience, training and research Our law firm provides reliable access to outside expert health care specialists who provide consultation, assessments, opinions and reports.

To learn more about how Plant Quinn Thiele Mineault Grodzki PC can assist you contact us by e-mail at mquinn@pqtlaw.com or call 613-563-1131. We offer free legal consultations and No Fee Until You Win arrangements where we charge nothing unless you win your case.

SERIOUS INJURIES AND FUTURE INCOME LOSS

Future Income Loss---After a full recovery?
By Michael K. E. Thiele

Let us presume that a victim suffers an injury to her wrist in a slip and fall accident. The resulting fracture is severe and recovery from the injury takes about a year. During the year that it took to recover, the victim was unable to work as effectively in her job. Nevertheless she forced herself to go to work as she was self employed and staying home was not an option. Consequently, her income dropped by 30% The drop in income was calculated by comparing her immediate pre-injury annual income with the immediate post accident annual income. Other evidence demonstrates that she was unable to work as much nor as effectively due to the injury.


In the second year, post accident, income levels returned to normal levels as compared to pre-accident earnings and based on income earned, it appears that the victim was back to “normal”. Does this mean that the ability to recover damages for loss of future income is concluded? The argument against recovery of additional damages is that there is a full recovery from the injury, income levels have returned to normal, and any future losses are speculative in nature.

Why then does the victim still want to pursue future income loss after a full recovery? The answer lies in the fact that full recovery from a severe injury is unlikely. Even if recovery is such that for a period of time there is little or no apparent impact of the injury (i.e. the victim seems fine), the reality of most serious injuries is that there is a risk of reoccurrence of impairment from the injury at a future date. A prime and common example is the occurrence of arthritis some time after the healing of broken bones.

The risk of reoccurrence of impairment from the injury and the loss of income that it may cause is a matter that must be compensated when resolving a claim.

The legal test in determining whether there is a compensable prospective future income loss (in the circumstances described in this post) is whether there is a real and substantial risk that future pecuniary loss will occur. The argument for loss of future income loss will not be successful if the exercise is purely speculative.

Given the legal test of real and substantial risk, it is imperative that in preparing a claim that time is taken to obtain expert evidence establishing what may arise in the future as a result of the injury a well as the likelihood of that happening. To successfully claim future income loss (as discussed herein) it is critically important to consider the elements of the real and substantial risk test and to marshal evidence that squarely addresses the evidentiary burden in proving that the injury will have symptoms that will likely materialize and those symptoms will cause an impairment that causes damage (i.e. income loss). The goal in presenting this evidence is to assist the Court in assessing the severity and likelihood of the risks that may materialize from the injury in the future.

Plant Quinn Thiele Mineault Grodzki PC considers the availability of damages for this kind of loss in each case. Injury victims should not be deprived of these types of damages just because it seems like there has been a full recovery from the injury. For this reason it is important to work closely with an injury victim’s doctor(s) and to seek expert medical opinion with respect to not only what has happened, but indeed what may happen in the future.

Government of Ontario responds to Charles Beer review of the AODA

The Government of Ontario has responded to the Beer Review of the Accessibility for Ontarians with Disabilities Act (AODA). The response addresses the recommendations to harmonize accessibility standards, renew leadership, establish an Ontario Accessibility Standards Board and repeal the Ontarians with Disabilities Act (ODA), which preceded the AODA.

The government agrees with the suggestion to harmonize the standards. The government will integrate and align the information and communications, transportation and employment standards. They intend to complete the process and put the integrated regulations in force by 2011. In 2013, the customer service standard will also be integrated.

In response to the call for renewed leadership, the government states that it will continue to champion accessibility.

Staff at the Ministry of Community and Social Services have been asked to review Mr. Beer's recommendation to establish an Ontario Accessibility Standards Board and will report back to the minister by early 2011. The government's focus will remain on completing the standards so no organizational changes are being contemplated at present.

The ODA will be repealed once all five standards under the AODA are in place.

The Beer Report noted that Municipal Accessibility Advisory Committees have an important role to play in achieving the vision of an accessible Ontario. The government response confirms that the MAACs will remain in place and the ministry will continue to work closely with them.

For details, see "Government of Ontario Response to Charles Beer Report," August 10, 2010, at www.mcss.gov.on.ca

Can I fire my personal injury lawyer and hire a new personal injury lawyer? By Marc-Nicholas Quinn

Ottawa Accident Lawyers, Ottawa Injury Lawyers - Is it possible to fire my personal injury lawyer and hire a new personal injury lawyer? Transfer of a personal injury file from one accident lawyer to another - how to proceed? By Marc-Nicholas Quinn

Top reasons why clients want to change lawyers

From time to time, we are asked by new clients to take over carriage of their personal injury files from another personal injury lawyer. In all cases, the client is very unhappy with their current personal injury lawyer and have reached a critical point where the client and solicitor relationship has deteriorated.

In our experience, the main reasons a client wishes to change personal injury lawyers are as follows:

1. The lawyer will not work on the file and has improperly delegated the file to someone else in the office such as a paralegal or law clerk.
2. The client has tried for weeks and sometimes months to reach the accident lawyer or his assistant, to no avail. No explanation is provided for why the lawyer never calls back.
3. The file is passed from one accident lawyer to the next in the same law firm.
4. The file is not progressing at all.
5. The client receives no updates at all.
6. The delay in the case is not explained at all.
7. There is disagreement on the conduct / steps of the case.
8. The accident lawyer recommends a settlement that the client objects to.
9. The lawyer changes his view significantly on the merits of the case without any explanation.
10. The lawyer refuses to continue with the case.
11. The lawyer is charging much more money than was quoted.
12. The lawyer is rude or lacks compassion.

As a client, one or a combination of the above reasons may trigger you to re-assess your relationship with your accident lawyer. If you experience difficulties in your relationship with your injury lawyer and attempts to work out a solution fails, or if your relationship with your current injury lawyer has deteriorated to the point that you have lost confidence in your injury lawyer for any reason, we would be pleased to meet with you free of charge and discuss your options, including a transfer of your personal injury matter to our law firm.

Is it always appropriate to change personal injury lawyers?

As a word of caution, we mention that it is not always in your best interests to transfer your file to a new personal injury lawyer. In many cases, after reviewing the matter, it turns out, for various reasons, that it is in a client’s best interests to remain with their current personal injury lawyer. For example, after reviewing the situation, the file is actually progressing well, the former lawyer was doing a fine job with the file and the real issue was simply a lack of proper communication between the lawyer and client. If the client had been provided regular updates, all would be fine, or if the client was given an explanation for the delay, all would be fine.

In such cases, a meeting between the client and injury lawyer to discuss the issues often solves the problem. In some cases, the client may have unrealistic expectations about the time-line or result of their case. Again, a meeting with the injury lawyer to obtain answers can sometimes provide the information needed to resolve the lawyer client relationship. In some cases, a meeting between the lawyer and client can clear up any misunderstandings and expectations in the lawyer client relationship and the terms of the continued relationship can be agreed upon.

Every case of a request to transfer the file is assessed and considered on its own merits and once the relevant facts received. If, after considering all the facts, the former lawyer has and is not pursing the injury claim properly, we will entertain a request to transfer the personal injury file to our office.

What are the client’s rights when seeking to transfer the file?

The client has the right to change lawyers. In a lawyer client relationship, as the client, you have certain rights and interests. You have, for instance, the right to a report on the status of your file from time to time and you have the right to request a copy of your file (or rather, you are entitled to your file and the lawyer is entitled to a copy of it). In most cases of a request for a file transfer, the lawyer will wish to impose certain conditions to transferring the file, usually pertaining to a protection of and/or payment of his/her legal account for legal services rendered. The conditions will depend on the nature of the retainer agreement; essentially was the retainer and fee on an hourly rate basis or on a result obtained basis.

There are some added costs to the client in that your new personal injury lawyer will have to review the file and obtain, as best as possible, the knowledge the former injury lawyer has about the file; obtained by a thorough review of the file and time spent with the client reviewing the facts and issues.

Changing injury lawyers is not very complicated, but it takes some times and the proper procedure must be followed.

At Plant Quinn Thiele Mineault Grodzki PC, if we agree to take over carriage of your file we will take all the necessary steps to have the file transferred to our law firm and we will negotiate the terms with your existing personal injury lawyer.

We handle most personal injury and accident cases on a contingency fee arrangement, meaning a"No Fee Until You Win" basis. Consultations with our injury and accident lawyers are free. If you desire to change your injury lawyer, please feel free to consult us, free of charge at 613-563-1131.

Ottawa Car Accident Lawyers - Traffic Accidents and Injuries - by: Marc-Nicholas Quinn

Ottawa Car Accident Lawyers - Injury Experts - Traffic Accidents and Injuries - by: Marc-Nicholas Quinn

A traffic accident or traffic collision involves an incident in which a motor vehicle such as a car, suv, atv, motorcycle or other motorized travel device collides with another motor vehicle, person, pedestrian, animal, items on a road or other type obstacle. In cases of traffic accidents, traffic collisions, car crashes or car accidents, chances are that the incident has caused injury to person or property. It is very uncommon for a traffic collision or car accident not to cause injury to person, damage to property or even death. There are many factors that contribute to an accident occurring, such as weather, faulty vehicles, bad road design and driver impairment such as alcohol or drug consumption, texting or phone use. The list if impairments is long.

When a car accident leads to personal injury, the injured person should consult a personal injury lawyer as soon as possible after the accident. Motor vehicle law is a very complex area of law with many time limits to advance claims and significant pitfalls. Car accidents cause injury and significant financial cost. No matter how well we try to avoid car accidents and eliminate risks, car accidents will continue to occur.

Trying to find guidance from articles published on the Internet is a start, but one quickly realizes when trying to make sense of what to do after an accident, unless you are a car accident specialist, you will gain limited useful knowledge of your interests and rights as an injured person by surfing the Internet. The pitfalls in car accident litigation are endless and only an experienced car accident lawyer can provide the legal advice and guidance needed to protect your rights and interests and obtain fair compensation.

The types of injuries one can suffer in a car accident is varied. Car accidents can cause many different injuries to virtually any part of your body. Common injuries include head injuries and injury to the face such as lacerations, bruising, concussions, fractures, post-concussion syndrome, closed head injuries, traumatic brain injuries. We also see various neck injuries such as sprains, strains, whiplashes, fractures, cervical injuries and disc injuries. We see shoulder injuries such as sprains, strains, fractures, dislocations and joint injuries. We also see a significant amount of injuries to arms, hands, legs, knees and feet such as lacerations, bruises, fractures, sprains, strains, dislocations and ligament injuries. We see significant back injuries such as sprains, strains, fractures, disc injuries and spine injuries of every type. We often see associated psychological injuries, emotional trauma and in some cases death. The severity of the injuries varies significantly.

In many cases, injuries sustained in car accidents are not obvious right away. In some cases, endorphins produced in times of trauma mask or hide pain and you may not be aware of the injuries sustained until some time later. In some cases, swelling only occurs after some time and injuries are revealed only hours or days after a car accident. It is always better to be safe than sorry. Always seek medical treatment after a car accident even if you appear fine.

If you or someone you care about has been injured in a car accident or other type of accident, contact the Ottawa Accident and Injury Lawyer Network for a free consultation. We offer No Fee Until You Win agreements and will not charge anything unless you win your case. Call us at 613-563-1131 or 613-315-HURT.

WHEN THE TRUTH IS HARD TO SPEAK

Asking the Court for Judgment and getting what you wish for! By Michael Thiele

In courtrooms around the country Justices are called upon to decide between competing versions of "fact" that the different parties and witnesses are swearing is the truth. One can only imagine how difficult a task this is when the consequences of choosing one version of fact over another has broad financial and social implications on the party whose version of the truth is not accepted. When the choice is difficult and the truth lies somewhere in the middle and the discrepancies in evidence can be chalked up to subjective perceptions the Court's findings are often expressed in tempered language with the evidence of some parties and witnesses being "preferred". In "preferring" some evidence over the competing contrary evidence there is of course an implication about the credibility and veracity of that other party or witness. The fact of there being an implication is a necessary consequence of the Justice having to decide what the true facts of the dispute are.

What then about cases where credibility, weighing the evidence, and deciding what is "true" is not a difficult task. What of the witness or party that is clearly challenged when it comes to the truth? How may a Court express its views of the incredible witness? Cases of this sort may lead to rather colourful language in the reasons provided by the Court. A recent example of such colourful language arises in the case of Wojnarowski v. Bomar Alarms Ltd. 100 O.R. (3d) 288.

What stood to be a rather dry case about promissory notes clearly became a lively matter for the Court as the opening paragraph indicates as follows: "In this action, the parties sought to shed the cloak of criminality that they wore comfortably for more than a decade, only to find the vestments of the virtuous to be ill-fitting." Later on an after excluding two witnesses from the comment to follow the Court stated: " With the exception of MacDonald and White, I have approached the credibility of the witnesses with apprehension and caution, for they are people who are well acquainted with falsehoods. After more than ten years of casual criminality, why should I think that they found God in my courtroom?" Later still, in assessing the credibility of the witness Mary the Court states: " There are numerous other examples of Mary's contradictory and otherwise vague evidence as to the uses made of the lines of credit. I am left wiht a mash of transactions described by a tainted witness who appeared to be composing her ansewrs on the fly", and again " I suspect that, of the many line of credit transactions, some were a smokescreen for instances of personal enrichment: Mary had mastered the methods of financial obfuscation."

The manner of expression leaves no doubt of the Court's view of the parties involved in this case. The colourful language makes for entertaining reading and surely the reasons have given the parties great pause for thought. That, however, is not all. The Court's findings are a reminder that telling the truth, behaving honourably, and being upstanding are important values that a Court and hence our community demands of its members. Casual dishonesty is not without consequences and the Court reminds us in this case that you can not act in this way with impunity and expect there to be no consequences.

The consequences of the conduct in this case are revealed in the dismissal of the claims. Further though, and perhaps an unanticipate outcome for the parties is the last paragraph of the Judgment which provided: "A copy of these reasons will be forwarded to the Crown Attorney at St. Catherines for whatever attention they may merit".

Ontario Long-Term Care Homes Act

New Long-Term Care Homes Act now in effect

Ontario's new Long-Term Care Homes Act, 2007 (LTCHA) came into effect on July 1, 2010. The act states that "a long-term care home is primarily the home of its residents and is to be operated so that it is a place where they may live with dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met."

This act now supersedes other legislation governing long-term care homes, including the Charitable Homes Act, theHomes for the Aged and Rest Homes Act and the Nursing Homes Act.

The LTCHA has an expanded Residents' Bill of Rights, which recognizes the dignity of each resident and ensures a safe environment for each resident. The Residents' Bill of Rights also protects a resident's right to participate fully in the development, implementation, review and revision of his or her plan of care, including rights to

• give or refuse consent to any treatment, care or services for which his or her consent is required by law and to be informed of the consequences of giving or refusing consent,
• participate fully in making any decision concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a long-term care home or a secure unit and to obtain an independent opinion with regard to any of those matters, and
• have his or her personal health information within the meaning of the Personal Health Information Protection Act, 2004 kept confidential in accordance with that act, and to have access to his or her records of personal health information, including his or her plan of care, in accordance with that act.

As a mandatory requirement under the LTCHA, all licensed long-term care homes must establish a Residents' Council consisting only of residents of the home to help advise on matters relating to the home. In addition, all long-term care homes must establish a written policy to promote zero tolerance of abuse and neglect of residents.

How to win your car accident case - Ottawa Car Accident Lawyers

How to win your car accident case - Ottawa Car Accident Lawyers: by Marc-Nicholas Quinn

Car accidents cause serious injuries that can have devastating and often long lasting affects on injured persons and their families. Car accidents are more common that you think and they can occur at any time. As a victim of a car accident, you have the right to claim compensation for your injuries from the person at fault for the accident. You have the right to claim accident benefits regardless of fault.Our advice is to always retain the services of a personal injury and accident lawyer to advance your claim for compensation.

A personal injury lawyer can help you gather the evidence needed to prove your case such as the circumstances of the accident, needed medical care evidence and documents substantiating your losses and liability such as police reports, medical reports etc... A personal injury and accident lawyer can also arrange to interview witnesses and obtain witness statements which support your version of the events surrounding the accident. An accident lawyer can also calculate your damages and losses and provide valuable advice on what a good or fair settlement is, having regard to all your circumstances. A reputable and experienced accident lawyer can also negotiate a fair settlement for you and, if settlement negotiations fail, file a court action on your behalf.

If you or someone you love has been injured in a car accident, please do not hesitate to contact us at 613-563-1131 for a free consultation. Ottawa Personal Injury Lawyers - No Fee Until You Win. Marc-Nicholas Quinn, Ottawa Car Accident and Injury Lawyer.

Ask Ottawa Accident Lawyer Experts - Is it true that the vast majority of personal injury cases are settled?

Is it true that the vast majority of personal injury cases are settled?

Yes. The great majority of personal injury and accident claims are settled without requiring a trial. In fact, most cases are settled without even having to initiate legal proceedings or even ever stepping foot into Court. Litigation is very expensive, time consuming, stressful and involves significant risk financially. In most cases, with fair compromises, it is in every parties best interest to settle the claim out of Court.

When your case is settled, it will include compensation for all of your damages such as pain and suffering, income loss, out of pocket expenses, medical expenses etc... Settlements of personal injury claims, like most settlements, are final and legally binding agreements. They are final in that once a release is signed, an injured person can never claim compensation again in relation to the accident and injuries suffered as a result thereof.


If you have been injured in an accident, you may be entitled to compensation. At Plant Quinn Thiele Mineault Grodzki PC, we will assess and evaluate your injury case free of charge and let you know your rights and interests. We will give you options and tell you how to exercise them. We will take on your case on a No Fee Until You Win basis.


There are time limits which apply to every claim in Ontario and you should never delay in consulting a lawyer. You can contact us anytime by calling 613-563-1131 or by e-mail mquinn@pqtlaw.com for assistance.


At Plant Quinn Thiele Mineault Grodzki PC, we will:

1. Help you identify and establish your legal rights and entitlements.
2. Assess your case and let you know if you have a good case.
3. Assist in determining if someone was negligent in causing you injuries.
4. Review and obtain the evidence needed to prove your case.
5. Hire and refer you to needed medical and non medical experts.
6. Take any and all steps needed to obtaining compensation for you.
7. Examine and obtain a full list of all your claims, with needed supporting documents.
8. Prepare your claim to start the negotiation process to obtain a settlement with the insurance company.
9. Negotiate with the insurance company involved and settle your claim for fair and reasonable compensation.
   

It is important that you know your rights by calling us at 613-563-1131 or e-mail us at mquinn@pqtlaw.com. One call can make a significant difference to your claim. Marc-Nicholas Quinn, Lawyer and Mediator.

COSTS TO THE SELF-REPRESENTED PARTY

AWARDING COSTS TO THE SELF-REPRESENTED PARTY: By Michael Thiele

If a person goes to Court as a self-represented party, either as a defendant or plaintiff, is that person entitled to receive costs if they are successful on the motion or trial? This question is often raised by self-represented persons who are taking the time to act as their own lawyer. For many different reasons, but usually because of the high cost of hiring a lawyer, many persons are forced to represent themselves in Court. Accordingly, they spend a significant amount of time trying to do the work necessary to represent themselves.

For parties who are represented by lawyers, there is a possibility of recovering costs if they are successful in motions or at trial. Costs are discretionary, but the usual rule is that the successful party is entitled to receive costs. The costs are intended to indemnify a party for all or part of the legal fees incurred as well as the disbursements and taxes. The breadth and extent of costs being awarded is beyond the scope of this blog.

Where a person does not have a lawyer, but spends a lot of time working on their case, should they get “costs” in the same way that a party who has a lawyer gets “costs”. The argument for costs is generally that the self represented party has had to do the work that a lawyer had to do and therefore they should be compensated.

In recent years, Courts have recognized that individual self represented parties can receive costs under some circumstances. In fact, there appeared to be a trend to award “nominal” costs to self-represented litigants simply on the presumption that they should get “something” for the clear effort that must have been involved in representing themselves.

This practice of awarding nominal costs to self-represented parties is likely now a thing of the past with the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt). In this decision, the Divisional Court reviews some of the recent cost awards to self-represented parties. In this specific case, the Court was considering a $20,000 cost award to a self-represented party and further it considered what would have been a “nominal” award of $5000 in costs to the same party that would have been awarded but for the higher cost award.

In reviewing the caselaw, including appellate authority, the Divisional Court in this case clarifies that costs awards to self-represented parties may only be granted where it is proven that the self-represented party performed the work of a lawyer and that this self-represented party as a result of performing this work also sacrificed other remunerative work---meaning the self-represented party needs to prove that they suffered an opportunity cost as a result of being self-represented.

It is significant to note, that even if a self-represented party establishes that they performed the work of a lawyer, and that they suffered the loss of remunerative work, that the Court directs that the costs awarded to that self-represented party should still be modest and moderate amount for preparing and presenting the case. The direction is clear, that a self-represented party should not have their costs calculated in that same manner as a lawyer.

As a result of this reasoning, the Divisional Court in this case, set aside the award of $20,000 to the self-represented party, and further indicated that the self represented party should not get the nominal costs of $5000.00. In fact, the self-represented party only received, as costs, its disbursements, and zero on account of the work done in representing himself.

For more detailed information see the decision in Mustang Investigations v. Ironside, 2010 ONSC 3444 (CanLII) (Div. Crt).

Scars and Disfigurement - Damages Assessments - Ottawa Injury Lawyers

Scars and Disfigurement - Experienced Ottawa Accident and Personal Injury Lawyers

Scars and disfigurement provide special challenges when it comes to assessing general damages for pain and suffering. These type of injuries can have lasting consequences and cause significant emotional psychological trauma in addition to the obvious physical pain and suffering. The types of consideration in terms of damages for scars and disfigurement are different than other types of injuries and can include damages for loss of interdependent relationship, negative impact on employability, loss of self esteem and self confidence etc...
In addition, cases involving scars and disfigurement can include additional medical expenses such as plastic and reconstructive surgery, services of a counselor, psychologist or psychiatrist. These types of medical and health care services are very expensive and the costs associated with them are compensable. In cases of scars and/or disfigurement, lifestyle is impacted in significantly different ways, facial scars and disfigurement in particular are difficult to handle by injured persons. There are self confidence and esteem issues that may require psychological assessment and treatment which can be life long.
There are many people express a sense of significant embarrassed by their scars and disfigurement and this has an impact on them emotionally, socially and psychologically. Scars can have a significant impact on a person's ability to feel confident about their appearance. People who suffer disfigurement and/or scarring often tell us they have profound feelings of anger and embarrassment. Their personal relationships suffer or they have an inability or difficulty with new relationships. They feel isolated and alone. Psychological and emotional treatments can help but they are expensive.
At Plant Quinn Thiele LLP, our experienced personal injury lawyers assist clients obtain the compensation that is needed for their physical, emotional and psychological treatment. When necessary, our lawyers work with medical professionals to fully understand our clients' injuries and assess the additional costs of health care services and the additional compensation for pain and suffering associated with scar and disfigurement cases. We prepare each case carefully, consider all elements of the pain and suffering and additional and special costs/expenses incurred and likely to be incurred. We are very effective in representing clients who have suffered the lasting effects of scars and disfigurement.
Scars and disfigurements can occur as a result of any type of accident. In Ottawa, the lawyers at Plant Quinn Thiele have helped clients recover damages as a result of all types of injuries, including accidents causing scars and/or disfigurements from accidents at work, car accidents, accidents in restaurants and other businesses, burns form all sources, birth injuries, motorcycle accidents, bicycle accidents, pedestrian accidents, unsafe properties and general negligence of others.
Contact Us
If you or someone you love has been involved in an accident that has caused scars or disfigurement, contact us and speak with a lawyer free of charge. Our case assessments are free.
The lawyers at Plant Quinn Thiele understand the types of special issues that affect clients who suffer scarring and disfigurement accidents. Contact us to schedule an appointment for a free initial consultation. We take cases on a contingency basis. Call us in Ottawa, Ontario at 613-315-4878 or 613-315-HURT. Marc-Nicholas Quinn, Accident Lawyer, Scarring and Disfigurement Lawyer.