Herman v. Boardwalk Rental Communities, 2011 ABQB 394

Court of Queen ’ s Bench of Alberta Citation: Herman v. Boardwalk Rental Communities, 2011 ABQB 394 Date: 20110627 Docket: 1103 02995 Registry: Edmonton Between: Wesley Herman Appellant - and - Boardwalk Rental Communities Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] This matter relates to an Appeal of a Residential Tenancy Dispute Resolution Service (“RTDRS”) Order granted February 22, 2011 in which the Tenant Mr.

Herman (hereinafter referred to as the “Tenant”) was ordered evicted as of the end of February 2011. Boardwalk Rental Communities (hereinafter referred to as the “Landlord”) had entered into a one year residential apartment lease with the Tenant for the period of July 1, 2010 to June 30, 2011. [ 2 ] The Landlord and the Tenant were in the midst of a dispute beginning in November 2010, which culminated at the end of December 2010 and the beginning of January 2011 over the Tenant’s allegations of dog/cat urine and fecal matter leaking onto/into his apartment premises.

As part of the exchanged communication, the Tenant at one point threatened to withhold February 2011 rent, and he reported the Landlord to health officials. The Landlord in turn apparently telephoned Police with respect to the Tenant’s unruly conduct, and unsafe storage of weapons, and ammunition in the apartment. The police appear to have not laid any charges against the Tenant after their investigation of January 4, 2011.

[ 3 ] The Landlord then issued on January 5, 2011 a 14 Day Notice to Vacate to the Tenant for the following reasons:– I hereby give you notice to deliver up possession of the premises: 1606 HR-l 17327-69 Ave, Edmonton, Alberta which you hold of me as tenant, on 1/20/2011 for the following reasons: Mr. Herman has verbally abused several staff which resulted in Edmonton Police Services attending to the situation and illegal firearms were discovered by EPS in suite and both situations breach the Residential Tenancies Act

Section 21(

b) significant interference with Boardwalk staff conducting business and (

c) will not permit or perform illegal acts and (

d) will not endanger persons or property. Dated: 1/5/2011 Failure to abide by this notice shall result in the exercising of our rights under the Residential Tenancies Act. Signature of Landlord/Agent: [ 4 ] The Landlord, by their agent, then filed an Application with the RTDRS on January 27, 2011 to have the Tenant evicted on the following basis:– 1. Failure to pay rent as and when due; and 2.

Interfering with the rights of the Landlord. [ 5 ] Subsequent to the Landlord’s application to the RTDRS, the Tenant did in fact withhold rent on February 1, 2011. [ 6 ] The RTDRS hearing went ahead with the Tenant present on February 22, 2011. The RTDRS officer determined that the Tenant was in substantial breach of the Tenancy pursuant to his failure to pay rent.

Although there were other grounds listed in the Application, the hearing officer came to her own determination, and granted a Termination Order on February 22, 2011. [ 7 ] At no time did the Tenant bring a cross-application, although he now before complains that he was evicted for reason(

s) not specified on the eviction notice, and that what was on the eviction notice was false. The Tenant seeks a cancellation of the Eviction Order, and other compensation. [ 8 ] His full argument filed late and dated May 25, 2011 reads as follows:– l. November 2010, made a verbal notice to Boardwalk of my firearm, requested that it was noted on my file, due to Boardwalk interrupting my peaceful enjoyment of the unit.

This was my fifth month living there, I have had a Boardwalk employee in my home 6 times, including opening of my closets. (I cannot hide a firearm with the obtrusive invasion) All statements and comments made by me, about my firearm, where made in November and was reported to the EPS by Boardwalk staff, on Jan,04,2011. The police report in Jan will reflect the exact same comments made by me in November 2010, which are recorded in my residential tenancy file with Boardwalk. Boardwalk refuses to give me a copy of this file, however, this is where the evidence of falsifying a police report is.

2. Dec, 31 2010, fust verbal complaint of, unhealthy unsanitary conditions on deck and windows, requested dog to stop, requested a move, unit was offered. 3. Jan, 02 2011, second verbal and written complaint of unhealthy unsanitary conditions on deck and windows, requested a move, in verbal and written statements, Boardwalk staff was told health board will be involved. 4. Jan, 03 2011, third written complaint of verbal and written complaint of unhealthy unsanitary conditions on deck and windows, requested a move. 5.

Jan, 04 2011, forth written complaint of, verbal notice, Boardwalk staff was told the health board will be involved, for unhealthy unsanitary conditions on deck and windows, requested dog to stop, requested a move, I had offered payment of $250 for the transfer fee, that was refused. 6.

Jan, 04 2011, dispute due to Boardwalks negligence on matter, Edmonton Police called over issue of disturbance, Boardwalk reported I have illegal firearm in suite, comments where made in November of 2010 and taken out of context, EPS noted that a 24 hr eviction was going to be issued in the police report, but would not enforce due to having a legal firearm. I removed firearm in good faith to quell situation so Boardwalk would come look at unhealthy, and unsanitary conditions on deck and windows. EPS made Boardwalk aware of situation of firearms. 7.

Jan, 05,2011, 14 day notice to evict on grounds of illegal firearms, verbal abuse of several staff of staff. in accordance with the ACT, a 24 hr eviction would be applicable if I had illegal firearms, I did not, they attempted an eviction with a 14 day notice. 8. Feb 04, 2011, I waited 30 days for Boardwalk to come up and inspect, call or even send a letter, No one showed, A call was placed to Capital health. 9. Feb, 22, 2011, second eviction notice non payment of rent, eviction ordered 10. Feb, 25, 2011, appeal Court Of Queens Bench. 11.

Feb 25, 2011, Capital health ordered a repair order on unit 1606. a date for mar 4 2011 was made to repair by Boardwalk. this order was ignored. 12. Feb 25, 2011, come home to a Boardwalk employee in my unit repairing the unit, I requested paperwork, none was provided. I asked if it was an emergency, IF it was, please continue for I thought it was. employee told me it was not, and was testing the new caulking. I told him it was unauthorized entry. placed a complaint with EPS. 13. March 04, 2011, another order to repair was ordered by Capital Health and again ignored by Boardwalk. 14.

Service Alberta is currently investigating Boardwalk on charges for violating the Landlords and Tenants Act regarding this issue, EPS will be investigating alligations [sic] of filing a false police report apon Service Alberta's compleation [sic] of the investigation. My Lord, I'm writing you in regards to court file number 1103-02995, I withheld rent for Feb,2011 to draw attention to the fact,boardwalk was going to evict me for any reason they could for contacting

Capital Health and Service Alberta. Any phone calls to upper management made by me, where ignored. At the time, I did not realize, with holding rent could be used against me. I felt the only way to stop the eviction process and be able to speak to someone within Boardwalk regarding the issue was to withhold rent. Within the contents of the affidavit,the RTDRS order, as evidence used against me for non payment of rent, a statement I made in writing dated, January 02, 2011 (exhibit A), the last sentence shows that a notification to the health board will be done.

On Jan, 04, 2011, EPS noted in the police report that a 24 hr eviction was going to be issued, but would not be enforced due to having met legal standards with firearm. I removed firearm in good faith to quell situation so, Boardwalk would come look at unhealthy, and unsanitary conditions on deck and windows, police notified Boardwalk. (comments made about my firearm where made in November and recorded in my tenancy file. Boardwalk staff falsified a police report and told the EPS that comments where made the day of Jan, 04, 2011 when in fact they where made in November and recorded by Merissa of Boardwalk.

On Jan 5/2011 a false eviction notice was issued, A 14 day notice to evict on grounds of illegal firearms. In accordance with the ACT, a 24 hr eviction would be applicable if I had illegal firearms, I did not, Boardwalk staff evicted, knowing full well an eviction was not enforceable. a call to Capital Health and Service Alberta was inevitable. as per the Alberta minimum housing and health standards, under termination of tenancies, #10.

Reasons a Landlord cannot End a Tenancy A landlord cannot end a tenancy agreement because the tenant has made an application or filed a Statement of Claim under the Residential Tenancy Act, made a complaint, or assisted in an investigation under the Public Health Act. To end a tenancy for one of these reasons is a fine-able offence. that's two attempts to evict while I should be under the protection from eviction under the Public Health Act/Residential Tenancy Act of Alberta, Canada.

Boardwalk had full knowledge that I was calling Capital health, as well, had full knowledge that they could not evict for illegal firearms, Boardwalk knew this, including filing 4 days before rent was due, I was paid up to Feb 01, 2011, and even got reprimanded for the respondents mistake of paid rent for Jan, 2011. the paperwork to the RTDRS has the eviction notice, has the notice of termination area half filled out, and then crossed out, resulting in my confusion of the RTDRS paperwork. why was I not judged on the original eviction notice of illegal firearms? how can they apply for non payment, if its filed 4 days before rent was due? the paperwork did not make sense.

Boardwalk has been constantly attacking my character, my reputation, my integrity, my honesty, with constant and unlawful aggression, as well, in court, attempting to evict me, and make me look bad at any turn for complaints and the threat to call Capital Health. Boardwalk has even attempted to get me with abuse of staff. I never put a staff member down. I simply used two words as nouns to describe the state of my deck.

It was never directed. [ 9 ] When I heard this matter initially on February 25, 2011, I issued a stay of enforcement subject to the Tenant bringing all of his rental arrears up to date, and required the Tenant continue to make timely rental payments. The Tenant was ordered to provide the Court with not only his full argument, but also a certified copy of the Transcript of the RTDRS hearing. He has failed to provide the RTDRS Transcript. The Law [ 10 ] The Tenant’s appeal is governed by the Residential Tenancy Dispute Resolution Service Regulation AR 98/2006 (the “ Regulation ”). In making the Order under

Section 15, the Tenancy Dispute Officer can make any order so long as:– (

a) an Order that has been applied for is justified, the tenancy dispute officer shall make that order, or (

b) another Order that could have been applied for is justified, the tenancy dispute officer may make that other order. [ 11 ] In addition, the Regulation indicates that in order to appeal an order from the RTDRS, the Appellant must follow the provisions of

Section 23. The appeal is limited in scope to questions of law or jurisdiction. 23(1) Any party who is subject to an order of a tenancy dispute officer may appeal the order on a question of law or jurisdiction to the Court of Queen's Bench

(

a) within 30 days after the order is given, by (

i) filing in the Court of Queen's Bench a notice of appeal setting out the grounds of appeal, and (ii) serving the notice of appeal on (

A) the respondent, (

B) the Dispute Resolution Service, and (

C) any other person that the Court of Queen's Bench directs (

b) by filing in the Court of Queen's Bench not later than 7 days after the last day for service on those persons served pursuant to clause (a)(ii) (

i) an affidavit of service of the notice of appeal, and a copy of a requisition to the Dispute Resolution Service for a transcript of evidence, together with (

A) a receipt for payment of the transcript at the expense of the appellant, or (

B) written confirmation from the Dispute Resolution Service that a transcript is not available.

(2) The appellant shall, within 3 months from the date the notice of appeal is filed, file with the Court of Queen's Bench a transcript of the evidence heard before the tenancy dispute officer unless (

a) the Court of Queen's Bench orders otherwise, or (

b) the Dispute Resolution Service has confirmed that a transcript is not available. [ 12 ] On hearing the appeal, the Court of Queen's Bench is limited to the evidence that was before the Dispute Resolution Service and no other evidence. The Court of Queen's Bench may confirm, vary, reverse or cancel the order of a tendency dispute officer:– 25(1) On hearing the appeal, (

a) no evidence other than the evidence that was submitted to the Dispute Resolution Service may be admitted, but the Court of Queen's Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the Dispute Resolution Service, and (ii) that are necessary for determining the question of law or of jurisdiction (

b) the Court of Queen's Bench may confirm, vary, reverse or cancel the order of the tenancy dispute officer

(2) If the Court of Queen's Bench cancels an order of the tenancy dispute officer, it may refer the matter back to the Dispute

Resolution Service, in which case the Dispute Resolution Service must rehear the matter and deal with it in accordance with any direction given by the Court of Queen's Bench on the question of law or of jurisdiction.

(3) No member of the Dispute Resolution Service is liable for costs by reason or in respect of an appeal.

(4) If the Court of Queen's Bench finds that the only ground for appeal established is a defect in form or technical irregularity and that no substantial wrong or miscarriage of justice has occurred, it may deny the appeal, confirm the order of the tenancy dispute officer despite the defect and order that the order of the tenancy dispute officer takes effect from the time and on the terms that the Court of Queen's Bench considers proper. [ 13 ]

Section 28 of the Regulation states:– Failure to comply 28 If an appellant fails to comply with the requirements of

section 23, the appeal shall be dismissed by the Court of Queen's Bench. Analysis The Effect of the Appellant’s Failure to Comply With the Requirements Under the Regulation to Provide A RTDRS Transcript . [ 14 ]

Section 23 of the Regulation indicates that any party who is the subject to an Order of a tenancy dispute officer may appeal the Order on a question of law or jurisdiction to the Court of Queen's Bench within 30 days from the date that the order is granted. In order to do so, they must file a Notice of Appeal setting out the grounds, serve that Notice of Appeal on the Respondent and the RTDRS. Further,

Section 23 requires filing not later than 7 days after the last day of service of the Originating Application: – 1. An Affidavit of Service of the notice of appeal, and 2.

A copy of the requisition to the RTDRS for a transcript of evidence together with a receipt for payment of the transcript at the expense of the appellant or written confirmation from the RTDRS that a transcript is not available. [ 15 ] In addition, the appellant is required to file with the Court of Queen's Bench a Transcript of the evidence heard before the tenancy dispute officer within 3 months from the date that the Notice of Appeal is filed, unless the Court of Queen's Bench orders otherwise, or the RTDRS has confirmed that a transcript is not available. [ 16 ] The Procedure Card in this matter indicates that the only documents that have been filed are the Originating Application, the Affidavit in Support and the Order staying enforcement.

No copy of the Affidavit of Service of the Notice of Appeal nor requisition to the RTDRS for a transcript of evidence together with a receipt for payment or written confirmation that no transcript is available, were filed with the Court. [ 17 ] Furthermore, the Appellant did not comply with the Order granted by me as he failed to file or serve the transcripts. [ 18 ]

Section 28 of the Regulation indicates a mandatory requirement that if the requirements of

section 23 are not complied with, the Appeal shall be dismissed by this Court. I conclude that the Tenant has failed to comply with the requirements of

Section 23 of the Regulation and the terms of my Order.

[ 19 ] Pursuant to

section 25, the only evidence admissible in the instant appeal is the evidence that was before the RTDRS. This includes both the Application and the Transcripts, and the Transcripts are not before this Court. [ 20 ] The Application to the RTDRS was appended to the Tenant's Affidavit filed in support of his Appeal. However the onus is on the Appellant to provide the court with the evidence that was before the Tribunal. Without further transcript from the hearing, only an incomplete analysis of the decision by the Tenancy Dispute Officer is possible.

To make a decision without all of the evidence before the Tribunal, including the representations and admissions made by both the Landlord’s representative and the Tenant/Appellant is an exercise fraught with problems which include requiring the Court to enter into the area of speculation as to what occurred at the RTDRS hearing and encouraging the improper rehearing of the case on appeal.

In many instances hearing such an incomplete appeal also represents a breach of the principles of natural justice since the parties do not know the case that has to be met. [ 21 ] Accordingly the lack of a filed Transcript is grounds alone to dismiss the Tenant’s appeal as the Court does not have all of the evidence upon which the Order was made. Did the Tenant Anticipatorily and in Fact Breach His Obligations Under the Residential Tenancy Agreement by Threatening to Withholding Rent?

Were the Landlord’s Grounds for Terminating the Tenancy Accurately and Properly Stated in Their Application to the RTDRS? [ 22 ] Before the RTDRS, the Landlord apparently attempted to evict the Tenant on the basis that he failed to pay rent and interfered with the site staff, even though the eviction notice was based on alleged verbal abuse of staff and illegal firearms being discovered by Police in the suite. [ 23 ] With respect to the Tenant’s argument that the Landlord attempted to evict him because of his complaints made to Capital Health or Service Alberta for fraudulent conduct and misrepresentation, the eviction notice was dated January 5, 2011 one day after the Tenant’s problems in the rental office that resulted in a the Landlord employee calling the police to deal with the situation. [ 24 ] An anticipatory breach occurs when, before performance is due, a party renounces the contract or disables himself from performing it.

In Thompson v. Birenbach Holdings Ltd., operating as Banff International Hotel , [1997] A.J. No. 999 Fradsham P.C.J. states at paragraph 36:– . . . Renunciation requires a 'clear' and 'absolute' refusal to perform; this need not be express but can take the form of conduct indicating that the party is unwilling, even though he may be able, to perform. The conduct must indicate to the other party that the party alleged to have renounced the contract is about to commit a breach of it; . . . Where one party has committed an anticipatory breach, the other has a choice.

He can try to keep the contract alive by continuing to press for performance, in which case the anticipatory breach will have the same effects as an actual breach. Alternatively, he can 'accept' the breach, in which case his rights to damages and rescission are governed by the special rules to be discussed below. [ 25 ] In the Tenant’s letter to the Landlord dated January 2, 2011 he indicated that he was refusing to pay February rent until his various concerns were dealt with.

The Tenant did in fact eventually withhold February 2011 rent, but did pay rent after the RTDRS Order was granted. [ 26 ] The application for a hearing before the RTDRS did include failure to pay rent as a cause for the tenancy to be terminated, although it was not included in the Notice to Terminate. As the hearing occurred several weeks after the rent was due, the anticipatory breach turned into an actual breach. It was on that basis that the tenancy dispute officer found that the Tenant was in substantial breach

of the performance of the tenancy agreement and ordered that the Tenant be evicted. The RTDRS tenancy dispute officer determined that the failure to pay rent was a substantial breach. Given

Section 15, I conclude that the tenancy dispute officer correctly determined that s/he had the jurisdiction to make that Order. [ 27 ] On this ground of appeal then I see no reason to cancel the RTDRS Order because the reasons listed in the eviction notice were not the same as those specified in the RTDRS application. I conclude that the eviction notice was reasonable given the express intention in writing indicated by the Tenant, and furthermore the actual breach subsequently occurring gave the Landlord the right to proceed with their application.

Had the Tenant paid the rent for February 2011 in advance of the hearing, that portion of the hearing would have been moot. [ 28 ] As I decided in Prestigious Properties Ltd. v. Kouba , 2006 ABQB 562 the unsatisfactory nature of the condition of a residential property almost never justifies the tenant unilaterally withholding rent, except in those situations where the rented premises are unsafe or unliveable. Even in those situations third parties such as Health and Safety officials should certify that those problem(

s) exist, and the tenant must first seek authority to abate rental payments. [ 29 ] To allow a tenant to unilaterally withhold rent on the basis of real or perceived problems in the residential premises can create havoc, and provide an obvious pretense for unscrupulous tenants to withhold rent as they saw fit. Even if the premises requires repairs or maintenance, it is not for the tenant to unilaterally determine the extent and scope of the set off, if any, that that tenant is entitled to as a result of the inconvenience or difficulties caused by the state of repair of the rented premises.

It would also not be unheard of for tenants to either create problems of never ending repairs and deficiencies within their premises to foster a scenario of the Tenant virtually never having to pay rent, or after having discovered the legitimate problems within rented premises, to conveniently or otherwise not allow for the repair(

s) creating yet another scenario where no rent would have to be paid. [ 30 ] Before final submissions could be concluded in this matter, the Tenant claims that as a result of the dog/cat urine and feces entering his rental premises from other units within the building, he was forced to relocate in May 2011 for medical reasons. His lease would have ended on its terms at the end of June 2011. Conclusion [ 31 ] The Tenant’s appeal is hereby dismissed for the reasons described above. The Respondent Landlord is hereby awarded costs as a result of the Tenant’s failed appeal. Heard on the 25 th day of February, 2011.

Dated at the City of Edmonton, Alberta this 23 rd day of June, 2011. Donald Lee J.C.Q.B.A. Appearances:

Wesley Herman Appeared on His Own Behalf Liam Kelly Witten LLP for the Respondent