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| | {{REVIEWED LSLAP | date= August 2, 2023}} |
| {{LSLAP Manual TOC|expanded = landlord}} | | {{LSLAP Manual TOC|expanded = landlord}} |
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| SECTION 12 DISPUTE RESOLUTION regarding TENANCY
| | Subject to the ''RTA'', the common law respecting landlord and tenant applies (''RTA'', s 91). |
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| =A. General=
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| The formal dispute resolution process may be avoided if an Information Officer is willing to phone one of the parties in order to explain the law, resulting in the dispute being resolved without the parties having to go through the dispute resolution process. For example, an Information Officer might call a landlord and tell him or her that landlords are required by law to provide rent receipts if the tenant pays rent in cash. The Information Officer will not take on the role of an Arbitrator and will only explain the Legislation.
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| Dispute resolution is the formal method of resolving disputes between landlords and tenants. Any party going to dispute resolution may be represented by an agent (e.g. a law student), barrister, or solicitor, and should advise the RTB of this before the hearing. The Arbitrator may exclude an agent if proper notification was not provided. To understand the procedure, advocates should read the dispute resolution Rules of Procedure that are available on the Residential Tenancy Branch web site.
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| ==1. Disputes Covered by Dispute Resolution==
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| Virtually all claims that may arise between tenants and landlords are eligible for dispute resolution (see RTA, s 58). A court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted to dispute resolution under the RTA. The exceptions are as follows:
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| *the application was not filed within the application period specified under the RTA;
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| *the dispute is linked substantially to a matter that is before the Supreme Court; or
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| *the monetary claim exceeds the monetary limit prescribed in the Small Claims Act, RSBC 1996, c. 430, s 3. (Currently the monetary limit is $25,000.)
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| As well, the RTB is specifically excluded, pursuant to section 78.1 of the RTA, from considering the following:
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| *Questions of constitutional law, and
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| *Issues arising out of the BC Human Rights Code.
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| ==2. Arbitrators==
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| Arbitrators are like judges and base their decisions on evidence and arguments presented by the parties at the dispute resolution hearing. The Arbitrator is not bound by decisions of other Arbitrators but is bound by legal precedent established by the court. The Arbitrator makes the decision based on the merits of the case. An Arbitrator has authority to arbitrate disputes referred by the director to the Arbitrator, and any matters related to disputes that arise under the RTA or a tenancy agreement. Arbitrators may assist the parties, or offer the parties an opportunity to settle their dispute. They can record agreements reached by the parties, sign off on the agreement, and record the settlement order. Except as otherwise provided by the RTA, a decision of the director is final and binding (s 77(3)).
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| =B. Dispute Resolution Procedure=
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| ==1. Applying for Dispute Resolution==
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| A landlord or tenant who wants a government-appointed Arbitrator to settle a dispute must complete an Application for Dispute Resolution form. The form is available at an RTB office or a Service BC office or online at the RTB website. Note that there are separate forms for the landlord and the tenant. An applicant who is a tenant would fill in and include:
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| *his or her legal name and current address;
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| *the address and legal name of the owner of the property (the landlord);
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| *the rental unit noted in the tenancy agreement;
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| *the relevant code of the RTA that deals with the problem (these are provided on the back of the dispute resolution form);
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| *the part of the form that says “Details of the Dispute”. It is better to write down too much than too little, since insufficient information could be grounds for the respondent to request an adjournment; however, save specific details for the hearing;
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| *that he or she wants the landlord to pay back the $50 filing fee; and
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| *copies of the background material being provided as evidence for the case.
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| NOTE: Rule 3 of the RTB Rules of Procedure (Ministry of Housing, 2005; available at http://bit.ly/1Igbqmg sets out how to serve the Application for Dispute Resolution, and how to submit and exchange documents. the time limits within which the parties and the Arbitrator must receive the documents to be used as evidence at the hearing. For applicants, the easiest way to comply with this rule is to attach all relevant documents to the initial application form. Evidence can be faxed to the RTB at 1-866-341-1269. (Applications cannot be submitted via fax).
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| Rule 3.14 governs evidence not submitted with the Application, and sets out that such evidence must be received by the all other parties and the Branch not less than 14 days before the hearing. In calculating the 14 days, the first and last day must be excluded. If the due date for service to the Branch falls on a day the office is closed, the limit is extended to the next day the office is open. If the date for service to the other party falls on a holiday, the limit is extended to the next non-holiday day. If evidence is not available within the deadline for service, under Rule 3.17 the Arbitrator has the discretion to determine whether or not to accept it.
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| You should also take special notice of the rules regarding how days of service are calculated. Documents sent by mail are deemed “received” five days later, while documents dropped through a mail slot or taped to a door are deemed “received” three days later. Please note that the RTB does not copy evidence for parties. See the Rules for further information.
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| An Information Officer at the RTB must check the form. This is best done in person. Clients who cannot go to an RTB office can file applications at a local Service BC office. Online applications require a credit card payment, so parties applying to waive the filing fee cannot use this method. The Richards Street and Downtown Eastside offices only accept applications where a fee waiver applies. Those offices do not handle money payments. The application will not be accepted until the applicant has paid $50 (by cash, or money order or certified cheque payable to the Minister of Finance). Any corrections or clarifications will need to be completed as well. People on income assistance or whose incomes fall below the low-income guidelines can apply to have the fee waived if they provide proof of their income status. The applicant is usually informed of the date of the hearing within 24 hours. The RTB created a Monetary Order Worksheet which must be completed when applying for a monetary order. The worksheet number is available online at: http://bit.ly/1ToyRm9.
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| The limitation period for designation of an Arbitrator (i.e. for filing the claim at the RTB) is two years from the end of the tenancy to which the dispute relates (RTA, s 60).
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| ===a) Naming Parties on an Application===
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| The RTB has specific rules for naming parties. These rules are of particular importance in relation to landlords who conduct their operations under a business or other name. If a tenant has a written lease, it may specify the name of the landlord, in addition to their address for service.
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| Individuals should be named by their full legal names, if known. Businesses should be named using the full legal name of the business, which may include an indication of the type of legal structure the business operates under, and may be a numbered corporation. Where a business carries on business under a name other than the legal name of the business, you may indicate that the party is “doing business as” the other name.
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| ===b) Amending an Application for Dispute Resolution===
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| In certain circumstances, applications for dispute resolution that have already been submitted can be amended. Amended applications must be related to existing issues raised in the original application.
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| To amend an application for dispute resolution, the applicant completes the RTB-42 “Amendment to an Application for Dispute Resolution” form, and submits that form along with any accompanying evidence to the RTB. Once the RTB approves the application, the applicant serves the other party with a copy of the application and supporting evidence, not less than 14 days before the hearing. Note that, as the application must be served on each party 14 days before the hearing, and it takes time to have the application approved, it is advisable to submit an application to amend as soon as possible so as to meet these deadlines.
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| ==2. Direct Request==
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| A landlord may make a Direct Request for an order of possession and/or monetary order for unpaid rent when he or she has issued a 10 day notice to end tenancy for non-payment of rent, and the tenant has neither paid the rent nor contested the notice. An order can then be granted without the need for a participatory hearing. The Direct Request process may be expanded, in the future, to cover other circumstances where a landlord serves a notice to end tenancy. Check the RTB website for updates. Because of the Direct Request process it is very important that tenants never ignore a notice to end tenancy.
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| NOTE: It is possible that a tenant will receive a Notice of Direct Request in circumstances where they should receive a hearing (e.g. all arrears paid in 5 days, application for dispute resolution filed, legitimate dispute on merits). In such a case, it is imperative that the tenant immediately write to the RTB and request a dispute resolution hearing. The tenant should explain why their case is not appropriately addressed through the direct request process.
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| ==3. The Dispute Resolution Hearing==
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| Hearings are a formal process, though less formal than court. The RTB uses the dispute resolution Rules of Procedure, which are online at http://bit.ly/1Igbqmg. The Information Officer may assist landlords and tenants by providing information about the procedure for resolving disputes, but will not help complete forms. An Arbitrator may make any finding of fact or law that is necessary or incidental to making a decision or an order under the RTA. The Arbitrator makes decisions based on the merits of the case and is not bound by previous Arbitrator decisions but is bound by court decisions. The Arbitrator considers all of the evidence and makes a decision based on the RTA, the common law, and the facts.
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| The dispute resolution policy guidelines are also available online. These are useful for preparing for a hearing, but they are NOT binding on Arbitrators. Most RTB hearings are now conducted via telephone. However, there are still some in-person or written hearings.
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| As well, although not yet in force, section 97 of the Residential Tenancy Act has been modified so that the branch may conduct hearings by other methods, including online, although there are at present no announcements related to the branch taking up other methods. As well, there are changes not yet in force that would allow the Director of the RTB to implement a “facilitated settlement” process similar to that used in BC Human Rights Tribunal mediations (Bill 18, Administrative Tribunals Statutes Amendment Act, 4th Sess, 40th Parl, 2015).
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| ===a) Telephone Hearings===
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| Parties should use a landline telephone in a quiet place where they will not be interrupted and avoid dropping the call on their cell phone. Parties should not try to call more than 5 minutes before the start of the hearing, as they will most likely not get through. The same is true if a party tries to call in more than 5 minutes after a hearing has started. The hearing will proceed even if one party gets disconnected during the call. It is important that parties check they have the correct telephone code. If a hearing has been adjourned or continued from an earlier hearing, the code will be different than the previous one.
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| Telephone hearings are scheduled for one hour exactly. If the hearing is not finished at this time, the Arbitrator may extend the hearing or schedule another conference call to continue the hearing. This may be several weeks or months after the first hearing. It is important that parties be focused on the outcome they wish to achieve and that their documents are carefully numbered so that time is not wasted searching for documents and other evidence.
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| ===b) In-Person and Written Hearings===
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| In-person or written hearings are rare, and will generally only occur at the request of one or both parties, to account for unusual circumstances or particular needs of one or both parties. For more information on alternative hearing formats, see RTB Policy Guideline no. 44: “Format of Hearings”.
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| ===c) Evidence===
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| If possible, it is best to include all evidence with the initial application. However, if this is not possible, the RTB must receive a copy of all of the applicant’s evidence no less than 14 days prior to the hearing; the respondent’s evidence must be received no less than 7 days prior to the hearing. Evidence can be faxed to the RTB at 1-866-341-1269. Rule 3.14 is particularly important here. It states that copies of any documents not filed with the application, but which the applicant wishes to present as evidence at the hearing, should be filed with the RTB and served on the respondent as soon as possible, and not less than 14 days prior to the hearing. This includes documents, photos, videos, audio tapes, and the like.
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| To rely on digital evidence (photos, videos or audio), per rule 3.10, a party must first check whether the other party and the RTB are able to access the digital evidence. Digital evidence must be provided to the RTB on USB memory stick, CD or DVD for their permanent files and must also be accompanied by a printed description. Evidence such as web pages, email or text conversations, and other digital evidence that can be provided in a printed form, should be provided in a printed form.
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| Each party must also deliver a copy of all evidence to the RTB and the other party in accordance with Rule 3.14 as above. The Arbitrator will usually refuse to look at anything not exchanged in advance of the hearing pursuant to Rule 3.17, which says that if the documents or other evidence are not served on the other party as required:
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| #the party must show that the evidence is relevant and that it was not available at the time they filed or when they served their other evidence;
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| #the Arbitrator has discretion to determine whether to accept the evidence if it does not unreasonably prejudice the other party, and both parties must have the opportunity to be heard as to whether the evidence ought to be accepted;
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| #if the evidence is accepted, the other party will have an opportunity to review it, therefore the Arbitrator must rule whether to adjourn, in accordance with Rule 6.3 and 6.4 which establish the criteria for adjourning a hearing.
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| The practical result of these rules is that Arbitrators will often refuse to look at any evidence that was not exchanged before the hearing as required.
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| The RTB’s definition of “days” is as follows, taken from the Dispute Resolution Rules of Procedure, located on the RTB’s website at
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| www.rto.gov.bc.ca/documents/RoP.pdf
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| *If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday
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| *If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open
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| *In the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded
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| *In the calculation of time not referred to in subsection (c), the first day must be excluded and the last day included
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| Evidence should be clearly marked and numbered so that all parties involved in a telephone conference can easily locate the relevant documents when necessary.
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| For a face-to-face hearing, it is still a good idea to bring extra copies of important documents to the hearing itself, in case the Arbitrator, or the other party, does not have copies handy. Original photos and documents that are presented to the Arbitrator cannot be returned later to the party, but they can be subpoenaed into the Supreme Court for judicial review. Copies of documents can be given to the Arbitrator, but they may demand the originals. If a witness cannot attend, the Arbitrator may accept affidavits (however, written statements may suffice) and may take testimony over the phone. If a party thinks a witness has something to contribute to his or her case but the witness refuses to cooperate, the party can then request in advance or at the hearing that the Arbitrator subpoena that witness.
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| The Arbitrator may then decide to adjourn the hearing and subpoena the witness for the hearing when it reconvenes. The party requesting the subpoena is required to serve it on the person being subpoenaed. The Arbitrator also has the power to compel witnesses to give evidence under oath and/or to produce records that may be of importance to the hearing. Where a witness fails to comply with these procedures, he or she may be subject to a finding of contempt on application to the Supreme Court by the Arbitrator (RTA, s 76(3)).
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| The applicant should always bring proof of service (i.e. proof that the other side received the Notice of Hearing package) to the hearing or, for a telephone hearing, include it in the evidence the applicant submits to the RTB. The proof of service will have to be presented if the respondent does not attend – to prove that the applicant served the Notice of Hearing on the respondent. The person who served the documents should be at the hearing or should have provided an affidavit of service to the applicant.
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| ==4. The Arbitrator’s Decisions==
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| The Arbitrator may render a decision at the end of the hearing and will make a written decision following the hearing. Pursuant to s 77(1), the written decision and reasons must be provided within 30 days. If a party completes a form requesting correction of a technical error, omission, or clarification within 15 days of the decision being given, such amended decision or clarification must be provided within 30 days.
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| The Arbitrator’s order is final and binding but may be reviewed in limited circumstances (s 79). See Section X.E: Review of Arbitrator’s Decision for details.
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| ==5. Amendments to Decisions/Orders==
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| On an Arbitrator’s initiative, or at the request of a party, the Arbitrator may correct technical errors, or within 15 days, clarify a decision, reason, or inadvertent omissions in a decision or order the Arbitrator may also require that notice of a request be given to the other party. The Arbitrator shall not exercise this power unless the Arbitrator considers it just and reasonable in the circumstances (RTA, s 78(3)). The forms to be completed are the Request for Correction or a Request for Clarification
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| The RTB continues to amend its Policy Guidelines on key issues under the RTA. There are now over 30 detailed RTB Policy Guidelines available that ensure more consistency in dispute resolution decisions, and which should be reviewed in preparation for any hearing. However, Arbitrators will not be required to consult the Guidelines.
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| =C. Enforcing the Arbitrator’s Order=
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| NOTE: If a successful party has any concerns about the ability to serve an order, he or she should request an order under RTA, s 71(1) permitting alternate means of service. An example of such an order would be one that permits serving a document at a tenant’s workplace rather than at their new home.
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| ==1. Enforcing a Monetary Order==
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| The Arbitrator may order the tenant or landlord to pay a monetary amount or to bear all or part of the costs of dispute resolution (RTA, s 67). Enforcement of the order is the sole responsibility of the applicant. If the monetary order is in favour of a tenant still living in the rental unit owned by the landlord that the order is against, the Arbitrator may direct the tenant to deduct the award from the rent (RTA, s 65(1)(b)). Rent should not be withheld unless the decision explicitly states this is allowed. If the monetary order is in favour of a landlord still holding part or all of the security deposit paid by the tenant, it may be deducted from the tenant’s security deposit. If neither of these situations applies, one should give the other party a written request for payment stating the amount owing and requesting payment by the date on the order or within a reasonable time.
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| If the other party still does not pay, the order can be filed in the Small Claims Court.
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| ==2. Enforcing a Repair Order==
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| If a landlord fails to make repairs as ordered by an Arbitrator, the tenant can apply for an order requiring compliance. The order to comply may include an order that the landlord reduces the rent until the repairs are complete.
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| ==3. Enforcing an Order of Possession==
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| The purpose of an Order of Possession is to gain vacant possession of the rental premises. The landlord should first give a copy of the Order of Possession to each person named in the order. The best way to do this is to hand the copy to the other parties personally or by registered mail. The RTA also permits for the Order of Possession to be posted on the tenant’s door. The tenant should be asked to move out of the rental unit within the time period given in the order. If a tenant does not comply with the order, the landlord must not attempt to physically remove the tenant by his or her own means (RTA, s 57(1)(2)), as this is unlawful. Bailiff services, described below, can be used to lawfully remove the tenant.
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| ===a) Use of Bailiff Services===
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| In the event that the tenant does not comply with the order and does not vacate the rental unit on the date specified on the order, the Order of Possession can be filed in the Supreme Court of B.C. Registry. The landlord must fill out a Writ of Possession and an Affidavit (re: service) and take these completed forms with the Order of Possession to the Supreme Court. Once the documents are filed and stamped in the Supreme Court, the landlord may contact a court bailiff service. The Writ of Possession is then ready to be executed by the court bailiff.
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| Under s 9 of the Sheriff Act, RSBC 1996, c. 425, the landlord is required to give a deposit to the court bailiff against the costs of the execution of the writ. This deposit varies depending on the size of the rental unit. For example, $1,100 for a one-bedroom and $3,000 for a five-bedroom house will be required as a deposit for executing a seizure.
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| ===b) Bailiff’s Procedure for Executing a Writ of Possession===
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| The bailiff consults with the landlord to discuss attempting a “soft” eviction, which gives the tenant a chance to vacate on their own; this is generally what occurs. Tenants are generally allowed three to four days to vacate under a “soft” eviction.
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| If the bailiff executes a “hard” eviction, the bailiff enters the rental unit and removes the belongings, as well as the tenant if necessary. It is the responsibility of the bailiff to ensure that all of the tenant’s belongings are safe and secure in storage. The bailiff may seize tenant’s possessions to sell in order to compensate the bailiff for the cost of the eviction.
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| NOTE: Sometimes third parties who are not named in the order (i.e. roommates) have their goods seized together with the tenant’s. It is important to inform the Bailiff as soon as possible what goods do not belong to the tenant. These goods can usually be returned to the third party if he or she is not named in the order.
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| ===c) Role of the Police===
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| Neither the police nor the RCMP has the authority to evict tenants. However, a court bailiff can forcibly evict a tenant on behalf of the landlord. The police may attend the occasion to prevent the breach of peace but they cannot play any role in evicting the tenant, however, the police will attend and remove the tenant if required to do so by the court bailiff.
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| =D. Serving Documents: Giving and Receiving Notice under the RTA=
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| The rules for serving the other party with documents depend on what is being served, and who is being served. This section sets out the basics of service, but for more detail or to check the requirements for your specific situation, you may need to check the Residential Tenancy Branch’s Residential Tenancy Policy Guideline #12.
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| ==1. Service Methods==
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| Generally, items can be served in any of the ways listed below. Some items must be served in particular ways. For details on items that must be served only in certain ways, see section D.2 below.
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| Different service methods are “deemed” or considered served at certain times after the date on which they are served. Note that, if there is proof that the document was actually received earlier than the date it is deemed to be received, the document may be considered received on the day it was actually received.
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| ===a) Personal Service===
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| For tenants serving a landlord, the tenant must serve by leaving a document by leaving a copy with the landlord or landlord’s agent. For a landlord serving a tenant, the landlord must leave a copy with the tenant, and in a case with multiple tenants, with each co-tenant separately.
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| Personal service requires physically handing a copy of the document to the person being served, and, if the person declines the document, leaving a copy of the document near the person, and informing the person being served of the nature of the document.
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| Persons can be served anywhere the person serving has legal access to, including in public streets and other publicly- or privately-owned areas open to the public.
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| ===b) Registered Mail===
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| You may serve these items by mailing them by registered mail (any Canada Post service with delivery confirmation to a named person) to the address for service of the other party. For landlords, this is where the landlord lives or carries on business as a landlord. This address may be listed on the lease or other document related to the tenancy. For tenants, this is the address where the tenant resides at the time of mailing, or the forwarding address provided by the tenant.
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| Records indicating that a person refused to accept a piece of registered mail are considered proof of service. Registered mail is deemed received on the fifth day after mailing.
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| ===c) Ordinary Mail===
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| This method is the same as service by registered mail, except that it is sent by ordinary postal service. Ordinary mail is deemed received on the fifth day after mailing.
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| ===d) Leaving a Copy of the Document at the Person’s Residence with an Adult Person who Apparently Resides with the Person to be Served===
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| This method involves leaving the document with a person 19 years or older who, from what can be seen, observed, and is evident from all the circumstances, resides with the person to be served. Such documents are considered personally served, and so considered served on the day they are delivered.
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| ===e) Leaving a Copy of the Document in a Mailbox or Mail Slot===
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| This method involves leaving the document in a mailbox or mail slot. For serving tenants, this would be the place where the person to be served resides at the time of service. For landlords, this would be at the place where the person to be served carries on business as a landlord. You must make sure that the mailbox or mail slot actually belongs to the person being served, particularly where there are multiple boxes or slots for one building.
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| Documents left in a mailbox or mail slot are considered served on the third day after they are left
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| ===f) Posting===
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| This method involves attaching a copy of the document to a door or other conspicuous place (a place that is clearly visible and likely to attract notice or attention). Placing a copy of the item under a door is not sufficient for service by “posting”. For serving tenants, this would be where the person resides at the time of service, and for serving landlords, this would be at the place where they carry on business as a landlord.
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| Documents served by posting are considered served on the third day after they are attached.
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| ===g) Fax===
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| You can serve a party by fax if they have provided a fax number as their address for service.
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| Documents served by fax are considered served on the third day after faxing them.
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| ===h) Substituted Service===
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| If none of the above options are feasible, the Residential Tenancy Branch may order another type of service. In applying for substituted service, you must show that the party being served cannot be served by any of the methods listed, and that there is a reasonable expectation that they will receive the documents if served in the manner being proposed.
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| ==2. Requirements for Specific Documents==
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| ===a) Application for dispute resolution or Residential Tenancy Branch decision to proceed with a review of a decision===
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| These items, with the exception of applications by landlords for an order of possession or an order ending a tenancy early, may only be served by personal service, registered mail, or by another service method authorized by an order for substituted service.
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| ===b) Application by a landlord for an order of possession or an order ending tenancy early===
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| These items can only be served by personal service, registered mail, posting, or by another service method authorized by an order for substituted service.
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| ==3. Address at Which the Landlord Carries on Business as a Landlord==
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| To quote from RTB policy guideline #12: “A landlord may operate a business as a landlord from one location and operate another business from a different location. The Legislation does not permit a tenant to serve a landlord in one of the ways set out above at the address where the landlord carries on that other business unless the landlord also carries on his or her business as a landlord at that same address.
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| If the landlord disputes that he or she has been served in one of the permitted ways at the address where he or she carries on business as a landlord, or if the landlord does not attend the hearing, the tenant will have to provide sufficient evidence to the Arbitrator to prove that the address used is in fact the address at which the landlord carries on business as a landlord.”
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| The address at which the landlord carries on business as a landlord may be:
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| *Set out in the tenancy agreement
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| *The landlord’s office or resident manager’s suite in an apartment building
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| *The address where the landlord resides
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| *A separate business address in an office or storefront location.
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| ==4. Proof of Service==
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| Where service has been effected and a party fails to appear at a hearing, the other party should be prepared that service was effected. For personal service, this can be done by having the person who actually served the other party appear as a witness at the hearing, or provide a signed statement with details about service. For personal service on another adult apparently residing with the other party, details should be included about the date and time of service, identity of the person served, and description of how it was confirmed that the person apparently resides with the party being served. For registered mail, a Canada Post tracking printout providing information about the delivery of the registered mail item will suffice. Proof of service by other methods should include details about date, time, identity of persons served, address where notice was posted, fax number or mailbox information, and any other relevant information. Photographs of service can be valuable in proving that service occurred.
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| =E. Review of Arbitrator’s Decision=
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| ==1. Application for Review of Arbitrator's Decision==
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| Under the RTA, s 79(1), an application may be made for Review of the Decision or Order, only if:
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| *the party was not able to attend the original hearing due to circumstances that could not be anticipated and were beyond his or her control;
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| *there is new and relevant evidence that was not available at the time of the original hearing; or
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| *a party has evidence that the Arbitrator’s decision or order was obtained by fraud.
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| The Application for Review does not include an oral hearing. The written application for review must therefore be complete and exact, with all necessary documents attached. Note that an Application for Review is not an opportunity to re-argue the facts of the case.
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| NOTE: There is a filing fee, which cannot be recovered, but which can be waived under the same circumstances for which the original application fee can be waived.
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| NOTE: Applicants who seek a review of an RTB decision should be aware of the BC Court of Appeal’s decision in Sereda v Ni 2014 BCCA 248. That decision provides that, where an internal review decision is judicially reviewed, only that decision, and not the initial dispute resolution decision, can be reviewed by the court. This position has been softened somewhat by the same court’s decision in Yee v Montie, 2016 BCCA 256, and by the BC Supreme Court’s decision in Martin v Barnett, 2015 BCSC 426, which provides a clear overview of the issue. Individuals dissatisfied with the result of a first RTB proceeding should still, however, consider, if the timelines in their situation allow, seeking legal advice on what their best course of action is in seeking to have the decision reviewed.
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| ==2. Time Limits for Launching a Review==
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| There are strict time limits in the RTA for launching a review. For orders of possession (s 54), unreasonable withholding of consent, and notice to end tenancy for non-payment of rent the time limit is two business days. For a notice to end a tenancy agreement other than under s 46, repairs or maintenance under s 32, and services or facilities under s 27, the time limit is five days. For other orders, the time limit is 15 days (s 80).
| | ==''' A. Implied Surrender: Abandonment '''== |
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| Review applications do not act as stays of proceedings; a stay must be requested separately through the Supreme Court.
| | At common law, a lease may be ended by “surrender” due to conduct of the parties, consistent only with a “merging” of the tenancy interest back into the landlord’s (owner’s) estate. Surrender occurs, for example, where the tenant abandons the rental unit, and the landlord repossesses and re-rents. Generally, no further rent or compensation for the unexpired portion of the tenancy may be claimed on surrender. However, claims for lost rentals are allowed. |
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| ==3. Successful Application for Review==
| | Abandonment is cause for ending a tenancy, but regardless of the wording of the tenant’s notice, or the wording of the acceptance of surrender, or the absence of a notice, abandonment gives rise to the landlord’s duty to mitigate. |
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| If a party is successful in his or her Application for Review, that person will receive a written decision from the Arbitrator permitting the review to proceed. This may be nothing more than an amended decision, or it may be a decision confirming suspension of the previous order and suggesting a date to reconvene for a new hearing.
| | ==''' B. Frustration '''== |
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| The Arbitrator’s decision permitting review must be served on the other side within three days of receiving the decision. The same method of service must be used as outlined above for a Notice of Hearing package (see Section X.D.3: Documents for Dispute Resolution. See also: RTA, s 81, and Section X.B.4: The Arbitrator’s Decisions). | | The doctrine of frustration applies to residential tenancy agreements (''RTA'', s 92) and commercial leases (''Commercial Tenancy Act'', s 30). If some unforeseen event occurs that prevents the agreement from being performed, it will be considered to have been frustrated and is thereby terminated at the time of the event. Frustration will rarely be found where the event appears to be largely self-induced (and the result of acts or omissions which might themselves constitute a breach of covenant, e.g., a municipal closure order made pursuant to a fire bylaw where the landlord failed to install sprinklers). If the event is totally self-induced, the perpetrator will not be able to establish frustration. Two factors to consider beyond the normal contract law concerns are: 1) the length of the unexpired term at the time of frustration, and 2) the possibility of alternative use of the rental unit. If the lease is one to which the ''RTA'' doesn’t apply, by common law the doctrine of frustration would not apply. |
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| ==4. Review by the Supreme Court of B.C.== | | ==''' C. The Right to Distrain the Tenant’s Personal Goods '''== |
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| An Arbitrator’s decision can also be reviewed by the Supreme Court of B.C. under the Judicial Review Procedure Act, RSBC 1996, c 241. The RTA contains a privative clause (s 84.1) which narrows the scope of the review. It is not a trial de novo. The court may overturn a decision where an error has been made that “goes to jurisdiction”; if the RTB has exceeded its statutory authority, either because a violation of procedural fairness has occurred, or because it has made a very serious error of fact or law, then the court can intervene to correct the error. When a decision is overturned by the court, the case is usually returned to an Arbitrator to be reheard. Due to the complexity of operating in the Supreme Court, a lawyer should be involved for a Supreme Court review. It is important to get legal advice and act quickly. The Community Legal Assistance Society (604-685-3425) is available to assist with judicial reviews of Arbitrators’ decisions, and is especially interested in helping with potential test cases.
| | Under the ''RTA'', a landlord has no right to distrain (i.e., seize) a residential tenant’s personal goods for default in rental payment, nor may the landlord seize a tenant’s personal goods to satisfy another claim or demand, unless the seizure is made by a person authorized by a court order or an enactment (s 26(3) and (4)). If a landlord seizes goods contrary to s 26(3), the tenant may apply to the court for an order to return the property, and/or for a monetary claim for damages. A landlord may, where the tenant has abandoned personal property, remove it from the residential property, and must deal with it in accordance with the ''Residential Tenancy Regulations'', which impose specific obligations on landlords in these circumstances. See Sections 24 and 25 of the ''RTR'' for specific obligations of landlords. |
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| NOTE: Losing a judicial review may result in an award of costs, meaning that the losing party must pay the legal costs of the other party.
| | ==''' D. Duty to Mitigate '''== |
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| ==5. Filing Complaints to the RTB==
| | Under s 7(2) of the ''RTA'', any time a monetary claim arises between landlord and tenant, both have a duty to mitigate damages (i.e., minimize losses). For example, if a tenant breaks a lease that was for a fixed term of one year, the landlord could sue the tenant for the balance of the rent payments. Nonetheless, the landlord has a duty under s 7(2) to try to minimize their loss by re-renting the rental unit as soon as possible, rather than just suing the tenant for the whole year’s rent. A landlord who makes such a claim must prove that they took reasonable steps to re-rent the unit and was not able to do so. See '''RTB Policy Guideline 5: Duty to Mitigate Loss'''. |
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| Complaints about information officers, dispute resolution hearings, or general services of the RTB must be put into writing and mailed to the Executive Director of the RTB:
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| P.O. Box 9844 Stn Prov Govt
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| Victoria, B.C. V8W 9T2
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| Complaints can also be made to the BC Ombudsperson. More information can be found at www.ombudsman.bc.ca. Note that the BC Ombudsperson does not review decisions; they can only investigate complaints where a person feels that RTB staff has treated them
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