HOW LANDLORDS AND TENANTS CAN SEEK JUSTICE FOR COMMERCIAL LEASING DISPUTES

Most jurisdictions have a rental board that deals with residential landlord-tenant disputes. The board has its own rules, its own forms, and its own schedules. It's meant to be accessible without lawyers to both landlords and tenants (though lawyers can certainly be helpful).

But a vast number of landlord-tenant disputes involve commercial premises. Where do those landlords or tenants go to seek justice? What is a landlord's recourse when a tenant stops paying rent or refuses to leave rented premises after a lease expires? What can a tenant do when a landlord locks him out of premises over which he holds a lease? Who ya gonna call? In Ontario the answer is: the Superior Court of Justice.

The Superior Court is always the place to go when there's no other place else you're supposed to be going legally speaking. So you don't go there for residential landlord-tenant matters, because there's already an administrative tribunal set up for that. But the only thing regulating commercial leasing is the common law of contract, plus what's known as the Commercial Tenancies Act, R.S.O. c. L.7.

That Act generally applies to all tenancies to which the Residential Tenancies Act, 2006 does not apply. Unfortunately the Commercial Tenancies Act isn't the easiest Act to read. It's got a lot of really old language in it that's never been "modernized," so that you're left with provisions like: "Every person has the like remedy by distress and impounding and selling the property distrained in cases of rents seck as in the case of rent reserved upon the lease." And no, "rents seck" isn't a typo, it comes with the Middle English "rent sek" which in turn comes from the Anglo-French "rente seque" meaning "dry rent." I highly advise you to retain a lawyer to advise you on your rights and obligations under the Act.

The Commercial Tenancies Act contains lots of useful provisions for both commercial landlords and tenants, though it's definitely not a complete code of procedure governing commercial tenancies. The gaps are filled in by the common law of contract. For landlords, there are provisions like s. 58 which provides that a tenant will owe a landlord twice the monthly rent for every month during which he illegally overholds a property beyond the expiry or termination of a lease. For tenants, there are provisions like s-s. 32(2) which permits a sub-tenant to serve a statutory declaration on a landlord who is seeking to seize tenant goods for non-payment of rent confirming that the tenant has no interest in the property of the sub-tenant, and that the sub-tenant's property therefore shouldn't be seized.

Because the Superior Court is a court of "original inherent jurisdiction," you can ask it for any remedy you think to be just. You might also have recourse to the Small Claims Court for money or property disputes under $25,000 in value involving commercial leases, but you can't get orders from that court forcing people to do or not so things - like evicting a tenant - you can only get money or property returned. So Small Claims Court has limited use in commercial lease disputes.

The key to happy commercial leasing is good legal advice (for both the landlord and the tenant) prior to signing a lease. Such advice can be a real bargain compared to the expense of going to court later to fight over whether or not the terms of the lease have been breached, and what remedies should be granted for that breach. But be assured that the Superior Court of Justice, the common law, and the Commercial Tenancies Act do provide for robust remedies for both landlord and tenants facing commercial leasing injustices.

ESTATE LITIGATION: FIVE TIPS ON HOW TO DEESCALATE FAMILY FEUDS

In the "good old days" (which often weren't so good), most of us died relatively poor. We might hopefully have been rich in life accomplishments, and family or friends, but financially speaking there often wasn't a whole lot left to divvy up among those who survived us.

With significant increases in home ownership, and especially significant rises in the equity held in those homes in Canada's major urban centres, if you die owning a mortgage-free house, you now often die rich. Plus there may be life insurance and investments to distribute. This is all great for one's survivors, but not so great if family relationships are already a little strained at the time of passing.

In the old days, even if beneficiaries of estates were inclined to squabble over who got what, they did not often retain legal counsel to do so if the legal fees would outweigh the money in dispute. But now with estates frequently running into the hundreds of thousands of dollars (or more) in value, "lawyering up" is becoming more common.

As an estate litigation and dispute settlement lawyer, I've found having some background in drafting wills and powers of attorney for clients has helped me assist families in deescalating disputes before they start, and managing disputes if they are already ongoing. Here I offer you five basic but key tips to deescalating actual or potential estate family feuds.

Tip #1: Picking the right executor for your will may be more important than picking the right beneficiaries. I find people often spend months of time debating who should or should not receive that prized china tea cup in a will, but spend about five minutes (literally) determining who should act as executor and estate trustee. Your executor is THE key player who will determine whether your estate is distributed hassle free, or with acrimony and lawyer involvement. Picking someone who is relatively impartial (and ideally not a major beneficiary, but who is compensated for his or her effort), and has people skills, is the usually the best strategy.

Tip #2: Don't completely exclude anyone who is deserving from your will. The more people you "cut out" of your will who might usually be expecting a gift, the more you heighten the chances for one of them challenging the will. You definitely don't need to treat everyone equally (at least under Canadian common law, as in Ontario), but if you have three children, and you give two of them $100,000 each, and the third one nothing, you are asking for trouble. Even if you have good reasons for doing so.

Tip #3: Once a dispute has started, quickly get legal advice but try to prevent it going to court. A lawyer's opinion is a bargain compared to the hassle and expense it can later save you. However, dragging a case (or being dragged) into court is never a bargain, and will take at least months and possibly years to resolve. Once that litigation freight train starts heading down the track, it can be very difficult to apply the brakes.

Tip #4: If you are in court, keep open a dialogue with the other side(s). While this tip might appear obvious, my experience is that many assume that once a matter is in court, they should just "let the court sort it out" and stop speaking to the other parties. It's unlikely a court will actually be able to sort it out in a definitive way - a court might clarify the issues, and resolve some of them, but definitive resolution could require many, many years since even if you are successful at trial, an appeal is possible, so keep the lines of communication open.

Tip #5: If you are involved in a contested court hearing, ensure you have solid evidence to support your position beyond just your oral testimony. It's reasonable to assume that judges want to make "just" and "fair" decisions, but they can only do so based on the law and evidence before them. Even if the law is on your side (for example, that a properly executed will is valid), prepare to back up your position with lots collateral evidence. Judges love documents - as they're less likely to lie than witnesses - so try to produce some supporting your position. Other witnesses backing up testimony will also help. You might also need expert witnesses. You will make your legal bill lower and greatly increase of your chances of success in court by helping you lawyer locate the documents and witnesses you need to present a compelling case.

New Website, New Blog

Now that you're just getting over the winter blahs, surely you're ready for a strong dose of the new Aubry Campbell MacLean (ACM) Blog! Trouble sleeping? Need something to distract you from the cat biting your leg? Well we've got the solution!

The Aubry Campbell MacLean blog will potentially feature contributions from all our lawyers and students, explaining the law in simple (but not simplistic), easy to understand terms.

I'll keep writing The Barrister Brief Blog which will continue to focus on litigation and dispute resolution dos and don'ts, but a lot of those posts will now also appear here. However, you'll also now get a much greater dose of solicitor legal dos and don'ts for things like real estate deals, wills, and business agreements thanks to my colleagues who practice in those areas. Welcome, and happy reading. Videos will show up in the future (I promise, I've even already ordered the studio lighting).