Dispute Resolution in Residential Tenancies (19:X)

A. General

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.

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.

1. Disputes Covered by Dispute Resolution

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:

• the application was not filed within the application period specified under the RTA;
• the dispute is linked substantially to a matter that is before the Supreme Court; or
• 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.)

2. Arbitrator

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 other Arbitrator’s decisions 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)).

B. Dispute Resolution Procedure

1. Applying for Dispute Resolution

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:

• his or her legal name and current address;
• the address and legal name of the owner of the property (the landlord);
• the rental unit noted in the tenancy agreement;
• the relevant code of the RTA that deals with the problem (these are provided on the back of the dispute resolution form);
• 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;
• that he or she wants the landlord to pay back the $50 filing fee; and
• copies of the background material being provided as evidence for the case.

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).
• Rule 3.14 governs evidence not submitted with the Application, and sets out that such evidence must be received by the other party 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.
• 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.

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.

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).

2. Direct Request

A landlord may make a Direct Request for an order of possession 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 on the RTB website for updates. Because of the Direct Request process it is very important that tenants never ignore a notice to end tenancy.

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.

3. The Dispute Resolution Hearing

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. The hearings are generally informal and parties may speak for themselves or through representation. Since hearings deal with specific issues that the applicant raised in his or her application, the Arbitrator will not consider issues that are not contained in the application.

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 face-to-face hearings.

a) Telephone Hearings

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.

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.

b) Face-to-Face Hearings

All evidence should be submitted prior to the hearing, since adjournments will not be granted without good cause. Evidence can be in the form of:

• a) any witnesses who provide relevant information;
• b) all documents including letters, receipts, photographs; and
• c) affidavits (sworn statements in writing).

c) Evidence

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. 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. 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:

• a) 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;
• b) 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;
• c) 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.

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.

The RTB’s definition of “days” is as follows, taken from the Dispute Resolution Rules of Procedure, located on the RTB’s website at http://www.rto.gov.bc.ca/documents/RoP.pdf

• a) 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
• b) 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
• c) 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
• d) In the calculation of time not referred to in subsection (c), the first day must be excluded and the last day included

Evidence should be clearly marked and numbered so that all parties involved in a telephone conference can easily locate the relevant documents when necessary.

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.

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)).

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.

4. The Arbitrator’s Decisions

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.

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.

5. Amendments to Decisions/Orders

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 theRequest for Correction or a Request for Clarification.

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.

C. Enforcing the Arbitrators Order

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.

1. Enforcing a Monetary Order

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.

If the other party still does not pay, the order can be filed in the Small Claims Court.

2. Enforcing a Repair Order

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.

3. Enforcing an Order of Possession

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 notattempt 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.

a) Use of Bailiff Services

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.

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.

b) Bailiff’s Procedure for Executing a Writ of Possession

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.

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.

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.

c) Role of the Police

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.

D. Serving Documents: Giving and Receiving Notice under the RTA

1. Service to Tenant

A notice, process, or document may be served personally on a tenant or by:

• a) sending the document by ordinary or registered mail to the tenant at the address where he or she lives;
• b) leaving the document in a mailbox or mail slot at the address where the tenant lives;
• c) giving it to an adult person who apparently lives with the tenant;
• d) posting it to a door or other conspicuous place at the address where the tenant lives; or
• e) transmitting a copy by fax to a fax number provided by the tenant.

The document is deemed “received” when it is personally served. If the document is served by an alternate means, it is deemed to have been received on the fifth day after the date of mailing, or on the third day after posting or faxing, or leaving it in a mailbox (RTA, s 90).

NOTE: These are rebuttable presumptions. If the respondent does not attend the hearing, service will come into question, and anything short of personal service may not guarantee a successful hearing if the other party does not show up.

Sliding the documents under a door or emailing them does not constitute service. The RTB Arbitrator or the court may order the document be served in any manner considered necessary, and may order that the document has been sufficiently served on a specified date (RTA, s 71).

2. Service to Landlord

A notice, process, or document is given to a landlord by having it served personally on the landlord or the landlord’s agent, or by mailing it to the landlord or the landlord’s agent (RTA, s 88(a)(b)). Alternate forms of service where service is not possible (due to absence from his or her rental unit or business or evasion) are:

• a) giving it to an adult person who apparently lives with the landlord (s 88(e));
• b) leaving it in a mailbox or mail slot at the address at which the person carries on business as a landlord (s 88(f));
• c) posting it to a door or other conspicuous place at the address at which the landlord lives or carries on his or her business (s 88(g)); or
• d) transmitting a copy by fax to a fax number provided by the landlord (s 88(h)).

The document is “received” when it is personally served. If the document is served by an alternate means, it is deemed to have been received on the fifth day after the date of mailing, or on the third day after posting, faxing or leaving it in a mailbox (s 90).

NOTE: These are rebuttable presumptions. If the respondent does not attend the hearing, service will come into question, and anything short of personal service may not guarantee a successful hearing if the other party does not show up.

The RTB Arbitrator may order the document to be given in any manner considered necessary, and may order that the document has been sufficiently served on a specified date (s 71).

3. Documents for Dispute Resolution (Notice of Hearing Package)

A copy of the Application and the Notice of Hearing must be provided to the respondent within three days of filing the application (RTA, s 59(3)). This is done by serving the hearing documents package as prepared by the RTB.

A landlord must (s 89) serve the Notice of Hearing package on the tenant by:

• leaving a copy with the tenant in person; or
• by sending a copy by registered mail to the address at which the tenant lives.

If the tenant cannot be served either way, an order for alternate service of hearing documents should be made under s 89(1)(e). A tenant must (s 89) serve the Notice of Hearing package on the landlord by:

• leaving a copy with the landlord, or an agent of the landlord, in person; or
• by sending a copy by registered mail to the address at which the landlord resides, or at which the landlord carries on business.

When the tenant does not know who may actually be responsible as landlord, it is safest to name and serve all parties who could possibly have a liability. Monetary orders should name the property owner, so a tenant should need to do a title search. The applicant has to prove the documents were properly served.

4. Documents on Application for Review of a Decision or Order of an Arbitrator

If a party is successful in his or her Application for Review, that person will receive a written decision from the Arbitrator ordering 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 setting a date to reconvene for a new hearing. This Arbitrator’ s decision (permitting review) must be served on the other side within three days of being received by the person who applied for review. The same method of service must be used as outlined immediately above for a Notice of Hearing package (see RTA ss 86 and 61(5) and [[Dispute Resolution in Residential Tenancies (19:X)#4. The Arbitrator’s Decisions | Section X.B.4: The Arbitrator’s Decisions).

5. Other Exceptions to General Service of Documents

An application by a landlord for an order of possession for the landlord or landlord’ s application for an order ending tenancy early must be given to the tenant under special rules: see RTA s 89(2).

E. Review of Arbitrator’s Decision

1. Application for Review of Arbitrator's Decision

Under the RTA, s 79(1), an application may be made for Review of the Decision or Order, only if:

• a) 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;
• b) there is new and relevant evidence that was not available at the time of the original hearing; or
• ) a party has evidence that the Arbitrator’s decision or order was obtained by fraud.

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.

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.

NOTE: Applying for review of an arbitrator’s decision may prevent a party from later applying to court for judicial review of the original decision. This is because the reviewing court may only review the final review or reconsideration decision, rather than the original decision. This may be the case even though the grounds of review under the RTA are narrower than the grounds of review in a judicial review. Parties should therefore exercise caution when deciding whether to pursue a review at the RTB; see Sereda v Ni, 2014 BCCA 248.

2. Time Limits for Launching a Review

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).

Review applications do not act as stays of proceedings; a stay must be requested separately through the Supreme Court.

3. Successful Application for Review

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.

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 [[Dispute Resolution in Residential Tenancies (19:X)#4. The Arbitrator’s Decisions | Section X.B.4: The Arbitrator’s Decisions).

4. Review by the Supreme Court of B.C.

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.

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.

5. Filing Complaints to the RTB

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:

P.O. Box 9844 Stn Prov Govt

Victoria, B.C. V8W 9T2

Complaints can also be made to the BC Ombudsperson. More information can be found at http://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 unfairly.