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Law.Hut
Law.Hut, Lawyer
Category: Canada Law
Satisfied Customers: 7845
Experience:  with over 15 years experience.
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I have money orders and judgements against my landlord and

Resolved Question:

I have money orders and judgements against my landlord and a pending personal injury claim in the small claims court. There was person's name on the tenancy agreement as the landlord and all our papers have been served and filed against that person. We now have problems getting compliance as the defendant is not in the words of her lawyer "financially independent". We know that her husband's name is XXXXX XXXXX mortgage for the house. We assume that any assets that she claims are jointly owned are unavailable to us to enforce the orders. Can we add the husband as a defendant now or is it too late? He is officially a landlord if he owns the property isn't he? Is this a problem for us?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Law.Hut replied 1 year ago.

Law.Hut : Hello: If you already have a judgment in place, then you cannot add other parties as a defendant. That lawsuit is conclude and it would be necessary to start a new action against any other owner that you state is responsible.
Customer:

I also spoke to a phone jockey at the RTO today. She said that if I could show from a land registry search that he also owns the property I could file another dispute with the RTO naming him as the defendant and present the work orders and money orders and ask for his name to be added to the judgements. She didn't seem 100% confident about this though. The RTO tribunals are small claims courts and the procedural standards are different to the supreme court. Does this make a difference? If I start a new action do I have problems with rez judicata?

Law.Hut :

You cannot just have someone's name added to a judgment. Any defendant is entitled to get notice, and a chance to have a hearing before any judgment is made against him or her. Once the judgment has been issued, that court action is concluded. Res Judicata would certainly apply to that action. The court will not amend that judgment at this point. So I believe you would have to start a new action or dispute, naming this other person as defendant. I do not believe res judicata would apply as it is a new action, against an entirely different defendant. I think it would certainly be appropriate though to point out in those proceedings that judgment has already been obtained against the other person on title.

Customer:

Thank you for your reply. We had a long discussion about this very thing. The right to be heard is one of the most important premises in law. However the other party applied for a review of the decision we had with the RTO and were turned down on this basis from the RTA. It was to do with the definition of "landlord". Section 1:

Customer:

a) the owner of the rental unit, the owner's agent or other person who, on behalf of the landlord,


 

Customer:

i) permits occupation of the rental unit under a tenancy agreement, or

Customer:

ii) exercises powers and performs duties under this Act, the tenancy agreement or a service agreement.

Customer:

Their argument for review is that they didn't get a chance to respond at the hearings,as all the papers were served to the address of the agent who failed to communicate with them. The tenancy agreement had the agent's address for the service of all legal papers and were served to the name of the owner on the agreement.. The act seems to suggest that if the owners (plural) employ an agent on their behalf, to act in all matters including service of legal documents, then he is acting landlord, and any papers served on the agent gives them due notice of actions. If they did not receive due notice it is not a matter for us to answer but a legal dispute between them and their agent. Here is the sticky bit for us. There was one name on the tenancy agreement as the landlord. The spouse was not named even though he jointly owns the property. ( we did not know that at the time of filing). However as owner of the property the agent must be acting for the un-named owner. Does this mean he was notified?

Customer:

Sorry but I think this is quite an important detail and I wonder why the phone jockey would tell us such a thing if it could not be done.

Customer:

They are normally very cautious on the information they give out.

Law.Hut :

But there is a major difference between deeming a person as having had legal notice of proceedings because they are using (or deemed to be) using an agent, and holding that an agent is going to have the same legal liability. After the fact, this is not something that can be done. It may be there are legal arguments based on definition of landlord to hold the second title holder responsible. But it is not possible to amend the judgment to do so at this point without a formal application. Even if there is law that suggests that the person is legally responsible, you would not be able to after the fact deem that person has having had knowledge and put their name on a judgment. It may be that they can be deemed as having been served through an agent, but they were not formally named in the prior matter, and so could not have known they had any obligation to defend. I can't tell you why the phone jockey would or would not give you information. This is not a common type of problem, and it could be that they simply do not know the answer or are incorrect in their information. It may be that I am incorrect, as being in mind that I do not have access to all the facts and the papers that have been filed and so on - but speaking from general legal principles I cannot imagine that any court or tribunal would consider it to be procedurally fair or appropriate to ever add a person's name to a judgment after the fact, regardless of whether they may have been involved in the matter or if there are strong indications that they may have some legal liability. The issue of their liability would have to be determined after they have formal notice of the proceedings, and a hearing. I see no way that a person could have their name added to a judgment otherwise, and if that were to occur I think that person would have an almost certain chance of success on an appeal.

Customer:

The advice we received from the RTO helpline was that we would need to apply for a "correction" to the judgement and that this would be heard by an arbitrator. This process is done directly with the RTO without notifying the other party - for example the first we knew that the landlord had applied for a review was when we received the decision in the post. The decision has the same standing as any decision made by an arbitrator in the dispute resolution service.
It seems possible to us that an arbitrator might grant this correction based on their interpretation of the Residential Tenancy Act and the role of the Agent within it and the definition of landlord, as above. If this is the case it also seems likely, based on your answer above that this decision could be overturned at the Supreme Court, if it were appealed.
Should this course of action occur, would the original decisions and judgement be re-opened or what would happen with the original case when it was returned to the RTO dispute resolution service? In addition if we apply to the RTO for a fresh dispute with the other owner and serve papers etc, have a hearing - could the original decision be overturned or is that res judicata?


Law.Hut :

The original decision and judgment would stand. Starting the new action would not result in any ability to review or open up the existing judgment. That issue is decided, and it would be a matter of res judicata and there should be no ability (short of through appeal) to re-examine the issue.

Customer:

Thank you, XXXXX XXXXX other question:
The advice we received from the RTO helpline was that we would need to apply for a "correction" to the judgement and that this would be heard by an arbitrator. This process is done directly with the RTO without notifying the other party - for example the first we knew that the landlord had applied for a review was when we received the decision in the post. The decision has the same standing as any decision made by an arbitrator in the dispute resolution service.
It seems possible to us that an arbitrator might grant this correction based on their interpretation of the Residential Tenancy Act and the role of the Agent within it and the definition of landlord, as above. If this is the case it also seems likely, based on your answer above that this decision could be overturned at the Supreme Court, if it were appealed.
Should this course of action occur, would the original decisions and judgement be re-opened or what would happen with the original case when it was returned to the RTO dispute resolution service?

Law.Hut : Unless the original case is appealed, there is no legal authority at this point to amend or correct it. There is no basis for returning the original matter to the RTO dispute resolution.
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Category: Canada Law
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Experience: with over 15 years experience.
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