By Stuart Cappus
Tenants and landlords often enter into fixed-term rental agreements. Commonly referred to as leases, these agreements provide the parties with some assurance as to how long the tenancy will last. But what if a tenant breaks the lease by moving out early before the term is up?
When this happens, the landlord has the right to sue the tenant for the amount of rent the latter would have paid for the balance of the term. However, there is one very important caveat to that general rule. In all claims for damages, the law requires an aggrieved party to do whatever he can within reason to minimize his losses. This is known as the duty to mitigate. For a landlord who wants to sue a tenant for breaking a lease, this duty to mitigate means that the landlord must do whatever is reasonable to try to reduce the amount of money he will be out because of the tenant’s breach. In most situations, this means trying to re-rent the unit to another tenant. If the landlord succeeds in finding another tenant, he can then sue the former tenant for the rent he lost up until the time the new tenant moved in. As an example, if it takes two months for the landlord to re-rent the unit after the tenant moves out with six months left on the latter’s lease, then the landlord can only sue the tenant for two months’ worth of rent.
The duty to mitigate arises once a landlord knows or ought to know that the tenant is breaching his lease. As a result, it is very important for landlords to pay attention to the actions of their tenants and to act quickly to reduce their damages once they learn of a breach.
In one of our cases, Stuart represented a tenant who, for various reasons, had to break his lease by moving out of his rental property one year before the end of his term. He gave the landlord two months’ notice of his intention to move out. The landlord had originally intended to sell the property when the lease expired. However, once the tenant left, instead of trying to re-rent the property, the landlord put it up for sale. The landlord subsequently claimed that the amount of money he sold the property for was less than what he would have received had he sold it one year later when the lease was supposed to expire, and sued the tenant for the difference.
At the Dispute Resolution hearing, Stuart argued that the landlord had failed to mitigate his losses by doing what any reasonable landlord would have done in that situation: re-rent the property to another tenant. He further argued that the two months’ notice given to the landlord was more than enough time for him to advertise the property and try to find another tenant. The arbitrator agreed with Stuart’s arguments and dismissed the landlord’s claim.
After both parties have filed their initial documentation in a Small Claims Dispute the court registry will set the matter down for a settlement conference. There is always the risk that a matter proceeding forward in Small Claims may not go in an individual favour and it is often a burdensome task for all the parties to be involved in ongoing litigation. The purpose of the settlement conference is to attempt to resolve the matter early on by having a no risk conversation regarding the dispute.
People are often stressed about attending a settlement conference but the important thing to remember is that it is a normal part of the process and very little will occur at the settlement conference unless they consent. In essence a settlement conference is a group meeting between a judge and both parties to have am open discussion on the dispute between them. Either or both parties can bring legal representation with them to the settlement conference or can attend on their own. The judge who is involved in the settlement conference will not have be the same judge who hears the matter if it proceeds to trial. It is important to remember that the conversation at a settlement conference is on a without-prejudice basis and therefore anything discussed cannot be used against one of the parties at trial. This allows for a more open dialogue about the issues the parties are in dispute about. Often the judge will control the flow of the conversation and they may provide their opinion on the strengths and weakness of both cases and the potential outcomes for both parties may be if the matter proceeds to trial. If it becomes apparent that settlement will not be possible the judge will often make some routine orders regarding disclosure of documents and witness lists in advance of trial in order to help the matter move forward smoothly.
Even if you do not think that settlement is possible it is essential that you attend at the settlement conference you may loss by default.
If an individual is successful in a legal action in another province or country it is possible for them to have that judgement recognized by the BC court system. The law regarding foreign and interprovincial judgements is complex but it is possible in some cases to use the same enforcement mechanisms available as if the original judgement had been rendered by a BC court.
If an individual has a foreign judgement they have two options available to them to enforce it in BC. The first is to start a new legal action in BC using the foreign judgement as the cause of action. This means they rely upon the foreign judgement itself to start and pursue a new action with BC and are seeking in their action that the foreign judgement is recognized. The defences to such an action are limited but include defences regarding the procedural fairness of the foreign court and how the foreign judgement was decided.
The second option is to have the foreign judgement registered in accordance with the Court Order Enforcement Act, RSBC 1996, C78. This option will be available if the foreign judgement is from a reciprocating foreign jurisdiction and was not obtained by default. A reciprocating foreign jurisdiction is one that recognizes BC judgements and has been declared to be a reciprocating jurisdiction by the BC government. Section 29-39 of the Court Order Enforcement Act sets out the steps that a party must take to apply to have the foreign judgement registered. Upon registration a judgement of a foreign court because as enforceable as if the judgement had been granted by a BC court or tribunal.
The process to have a legal judgement from another province recognized in BC is streamlined and in many cases not does require a hearing of the application and only the filing of the out of province judgement. The Enforcement of Canadian Judgements and Decrees Act, SBC 2003, C29 only requires that a certified true copy of the judgement from the registry that granted the judgement be filed with the registry of the Supreme Court of BC. Upon registration the judgment may be enforced as if it was an order or judgement of the Supreme Court of BC.
Often an individual struggles to return to their employment immediately following an injury and may have to take several months off or be permanently off work depending on the severity of the injury. Some employees will have the advantage of short term and long term disability programs but these may not be available to all individuals.
Some of the public resources available in British Columbia residents include Employment Insurance (EI), the Canadian Pension Plan (CPP) and provincial social assistance.
Employment Insurance Sickness Benefits
An individual may be entitled to receive EI sickness benefits if they have been employed in insurable employment (employment in which EI deductions have been being made by your employer or as a self-employed person you have been paying into EI), they meet the medical requirements, their weekly earnings have been reduced by at least 40% and have at least 600 hours of insurable employment. In order to meet the medical requirements an individual must be unable to work due to injury or sickness and d otherwise would have been able to work if not for the injury or sickness. A medical certificate from a doctor will have to be obtained but this can be completed after a person has applied for benefits.
If you think that you might qualify for EI sickness benefits you should apply immediately as a delay may prevent you from qualifying for benefits.
You can apply online for EI sickness benefits at https://www.canada.ca/en/services/benefits/ei/ei-apply-online.html.
Canadian Pension Plan Disability Benefits
An individual may be entitled to disability benefits from CPP if they are disabled from working and have made enough contributions to CPP in the past and are under the age of 65. If a person is over 65 they can apply for regular CPP benefits. When applying for CPP disability benefits a portion of the application will be completed by a medical professional involved in the diagnosis and treatment of your ongoing disability. In order to qualify for CPP benefits a disability must be determined by the CPP medical adjusters to be both severe and prolonged. A severe disability is one which prevents an individual from regularly from doing any type of work and a prolonged disability is one which is consider to be long-term or indefinite.
In order to qualify for CPP benefits an individual must have contributed to CPP four years of the last six years or if a person has been contributed for over 25 years then they must have contributed to CPP three years in the last six years.
The amount you receive in CPP benefits will be dependent upon the CPP contributions you made when working but all recipients receive the basic monthly amount of $471.43.
You can begin an application for CPP benefits online at https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-disability-benefit/apply.html.
Person with Disability Assistance
If disabled and unable to work a BC resident can apply person with disability assistance (PWD) from the Province of British Columbia. In order to qualify for PWD a person must show that they meet the financial eligibility requirements, be 18 years old, have a severe disability expected to continue for at least 2 years and be restricted in your ability to perform day to day living activities.
A single person, couple or family where only one person is on PWD is can have assets up to $100,000 before they will not be able to receive PWD assistance. A couple or family where both adults receive PWD can have assets up to $200,000. Not all assets are included in this assessment including a person’s primary residence, clothing and necessary household items and assets held in trusts or registered disability saving plans.
In order to show that an individual suffers from a severe disability that is expected to continue for at least 2 years they will require a physician to complete an application in support of the PWD application.
You can begin an application for assistance online at https://myselfserve.gov.bc.ca/.
The BC Human Rights Tribunal handles all complaints of discrimination under the BC Human Rights Code in BC. An individual who has been discriminated against with regards to their employment, publically available services, accommodation and/or publications can begin the process by filing a complaint with the Tribunal in person, by mail, fax or online.
After receiving a complaint the Tribunal reviews the complaint to determine if it was filed in accordance within Tribunal Rules, within the time limit for filing a complaint and if the complaint filed contains a possible act of discrimination. If the complaint fails to meet any of these thresholds the complaint will be rejected by the Tribunal.
If the complaint is accepted it is them provided to the respondent (the individual or organization who the discrimination claim has been made against). Upon receiving a complaint a respondent can agree to hold a settlement meeting in order to attempt to resolve the complaint and delay filing a response or the respondent can state that they do not wish to attend a settlement meeting and instead file a response to the complaint.
If both parties agree to a settlement meeting the Tribunal provides a mediator to meet and work with both parties to discuss the complaint and issues between the parties and try to resolve the outstanding issues between them. The mediator cannot make any binding decisions at the settlement meeting and it will be up to the parties if they reach a compromise.
If the settlement meeting is unsuccessful or if the parties elected to not engage in a settlement meeting the next step is for a respondent to file a response to the complaint. The respondent may disagree with the factual nature of the events, whether those events amounted to discrimination or the remedies claimed in the complaint. After the response has been filed both parties have an obligation to disclose relevant documents with each other. This process is known as disclosure.
If the respondent has complied with the document disclosure requirements they can apply to dismiss the complaint without a hearing. There are numerous grounds under which to applying including that the complaint has no reasonable prospect of success or that the alleged conduct does not breach the code. The respondent will file a written application including any evidence upon which they want to rely with the Tribunal and provides a copy to the complainant who has the opportunity to file a reply to the application. If the application to dismiss the complaint is successful the matter will be settled unless the complainant files for an appeal of the dismissal decision.
If a respondent is unsuccessful in their application to dismiss or they do not bring an application the Tribunal will set the matter down for a case conference. Most case conference are held on the phone but can be held in person depending on where both parties live and normally do business. The case conference is to ensure that appropriate disclosure has occurred and both parties will be prepared to move forward to a hearing.
Following the case conference a hearing will be scheduled by the Tribunal in order to hear the complaint. Both sides will be given an opportunity to present their case to a Tribunal member who after the hearing will determine if discrimination occurred and the appropriate remedy to be granted.
By Stuart Cappus
The Sale of Goods Act applies to any contract where one person sells goods to another. From a teapot to a car, the goods in question can be any kind of personal property. These contracts of purchase and sale don’t have to be and often aren’t in writing. Most of the time they are verbal or implied from the conduct of the buyer and seller.
Contracts generally contain terms and conditions. These can either be express, meaning that they’ve actually been discussed and agreed by the parties, or implied, meaning that they are automatically inserted into the contract by operation of law.
For buyers, the most important terms of a contract often relate to warranties guaranteeing, to some degree, the nature and quality of the goods being bought. Where a contract doesn’t contain an express warranty, buyers who’ve been aggrieved by buying something that turns out to be (a) not what they thought they were buying or (b) defective can resort to the Sale of Goods Act. That is because the Act inserts several implied conditions into contracts that can be relied on by buyers to get a replacement or their money back.
Section 17 of the Act implies a condition in all contracts that the goods a buyer receives must correspond with the ones he bought. Along those same lines, section 19 stipulates that when a buyer purchases something in bulk on the basis of seeing a sample, the quality of the bulk product must correspond with that of the sample. It is also an implied condition that the buyer be given a reasonable opportunity to compare the bulk product with the sample to ensure that they match.
Section 18 contains several implied warranties as to the quality or fitness of a good:
(a) if the buyer tells the seller the particular purpose for which he is buying the goods and the buyer is in the business of selling such goods, then there is an implied condition that the goods will be reasonably fit for that purpose. This would apply to a situation where, for example, you go to a car dealership and tell the salesman that you want a car that will be good for driving from Nanaimo to Victoria and back every day. If the salesman sells you the car with knowledge of why you are buying the car, then there is an implied condition that the car will be able to do just that. However, this provision doesn’t apply to a private sale or where you buy something from a store that the store isn’t in the business of selling;
(b) if the goods are bought by description, meaning sight unseen, from a seller who is in the business of selling such goods, then there is an implied condition that the goods, once delivered, will be of merchantable quality. This would apply to a situation where, for example, you buy something online from a business’s website. If, upon receiving the item, you discover that the item is defective, you can rely on this provision to get a replacement or your money back. However, this provision doesn’t apply to a situation where you had an opportunity to inspect the item before buying it; and
(c) there is an implied warranty that the goods will be durable for a reasonable period of time having regard to the use to which the good would normally be put and to all the circumstances of the sale. Unlike the two previous provisions, this one does apply to private sales.
Financial records of wages/earning are helpful when trying to show to a court the economic losses an individual has suffered as a result of an injury. It is important to ensure that accurate records are maintained and that appropriate accounting help is prioritized following an injury.
Many individuals receive cash tips related to their employment (waitress and delivery driver) and self-employed individuals (child care and handymen) are often paid in cash or personal cheque for work completed. Mistakes can occur when taxes and filed and income can be inappropriately reported. If appropriate records are not maintained prior to the collision or if an individual has not appropriately reported their taxable income in the past it complicates determining the magnitude of the loss they may have sustained but does not prevent a claim from being awarded. In the case of a waitress it is easy to establish the hourly rate they were paid prior to the accident but much more difficult to show the tips earned. In the case of a self-employed individual that has failed to file taxes
The act of not filing accurate tax returns or not filing tax returns at all in the past does not prevent an individual from proving a wage loss claim and a determination of wage loss however can be based in part upon income earned but not reported in past years. The courts have determined that a defendant cannot avoid compensating for that loss on the ground that the income was previously unreported. The greatest hurdle is to establish what the magnitude of the income loss is without documentation. This can be done through comparison to prior bank records, customer testimony and comparisons to other individuals in the same employment field. In cases where mistakes may have occurred when filing tax returns, income was not appropriately reported or no tax returns were filed prior to the injury it is important to ensure that all financial records are maintained and professionals are retained to assist in bringing an injury claim.
As more individuals choose to rent out basements suites or invest in rental properties it is important for potential landlords to be aware of their liability for accidents or falls that occur on their rental property. Residential landlords may not have complete control over a rented premises or the members of the public who have access to a premises but they can still be found liable for injuries that occur in/on their rental properties.
Liability for injuries that occur on any property in BC is governed by the Occupiers Liability Act that establishes that a landlord can be held liable if the landlord was responsible for the maintenance or repair of the rental unit. The Residential Tenancy Regulations of BC imposes on a Landlord the duty to maintain the residential property in a reasonable state of repair. A landlord’s duty to provide a residential premises in a reasonable state of repair has been found to apply to the construction and condition of flooring, deck railing, installed shelving and plants fixtures. It is essential for a landlord to ensure that all aspects of the rental unit under their control are safe for occupancy.
The duty imposed upon landlords includes a duty of reasonable inspection by the landlord prior to and during the occupancy. In order to discharge the duties imposed by the Occupiers Liability Act a landlord must show that they took sufficient steps to identify hazards upon their rental premises prior to renting it out. It is important that prior to renting out a rental unit it is inspected for potential hazards, records of this inspection are maintained and any hazards are removed or repaired.
As a landlord it is important to ensure that a clear communication/system is established for tenants to report any potential hazards on the rental property and periodic safety inspections of the property occur. If a tenant does report a potential safety hazard or a hazard is identified during an inspection a landlord should ensure that all reasonable steps are taken to repair the potential hazard as soon as possible.
As a precaution it is advisable for landlords to maintain not only property insurance for their rental units but also third party liability insurance.
The courts have long held that a plaintiff in a personal injury case should be awarded damages necessary to place them in the same position they would have been if the accident had never occurred. At times it can be challenging for the courts to identify and determine the magnitude of losses suffered by an individual. This is especially true in cases when an individual is self-employed and/or operates their own business.
Often when an individual operates their own personal business they suffer a loss of revenue due to their reduced productivity as a result of the limitations of their injuries. This loss can often be shown by examining the revenue of the business in the years prior to the accident.
The losses suffered by a self-employed individual may not directly be a loss of revenue but an increase in expenses as they have to rely upon additional staff to assist them in their work duties. The cost of the increased expenses to operate your business are claimable as a loss in a personal injury action.
An individual can also derive multiple benefits from operating their own business such as the ability to have their business pay some expenses that they otherwise may have had to incur including paying a portion of their rent/mortgage and utilities for their residence as a business expense and paying for the insurance, fuel and maintenance of vehicle’s that are also used both for personal use and business. If a plaintiff is no longer able to operate their own business they will have lost both their recorded revenue and the economic benefits of operating their own business.
It is important to ensure that a claim is made for all the economic losses suffered by a plaintiff including the reduced revenue from the business, the potentially increased expenses of operating a business when injured and the loss of the benefits of operating a private business.
By Stuart Cappus
We’ve previously discussed how a landlord can evict a tenant from a rental unit. However, evicting a tenant does not ensure that they will actually leave the unit. Despite being served with an eviction notice, some tenants simply refuse to leave willingly. What is a landlord to do in that situation?
The first step is to get an Order of Possession from the Residential Tenancy Office (RTO). There are two ways to get this order. The first is after a Dispute Resolution hearing, which will happen if the tenant disputes the eviction notice or the RTO requires one. Upon determining that the eviction notice is valid and justified, the RTO will issue the landlord an Order of Possession. The second is through the Direct Request process, which applies only where the tenant is being evicted for not paying rent on time. If, after being served with the eviction notice, the tenant doesn’t pay what’s owing or apply for dispute resolution, the landlord can use the Direct Request process to apply without a hearing for an Order of Possession.
Once the landlord has an Order of Possession, he must serve it on the tenant. Depending on the nature of the tenancy and eviction notice, the tenant will have up to 15 days to apply for a review of the RTO’s decision. During that period of time, the landlord still cannot do anything to physically remove the tenant from the unit.
If the tenant doesn’t apply to have the decision reviewed or does and the order is upheld, that still is not the end of the matter. If the tenant still refuses to leave, the landlord must then apply to the B.C. Supreme Court for a Writ of Possession, which authorizes the landlord to hire a court-approved bailiff to physically remove the tenant from the unit. The bailiff is also empowered to seize and sell as much of the tenant’s personal property as is required to pay the bailiff’s fee and cost of having to apply for the Writ of Possession.
It is very important that landlord’s strictly follow this process. If a landlord tries to physically remove a tenant himself, changes the locks to the unit or takes the tenant’s personal property without an order from the RTO, or uses a bailiff who hasn’t been approved by the court, the landlord can be fined up to $5,000 and required to pay the costs incurred by the tenant as a result.