Ayre & Oxford Inc. v Sinclair, 2011 ABQB 494

Court of Queen ’ s Bench of Alberta Citation: Ayre & Oxford Inc. v Sinclair, 2011 ABQB 494 Date: 20110802 Docket: 1103 08183 Registry: Edmonton Between: Ayre & Oxford Inc. Applicant - and - Darryl Sinclair Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an appeal from the Residential Tenancy Dispute Resolution Services ( “ RTDRS ” ) Order in this matter seeking a reversal of the Residential Tenancy Dispute officer ’ s decision of May 19, 2011. Mr.

Sinclair the Respondent in this matter opposes the appeal. [ 2 ] The Appellant had applied before the RTDRS seeking a termination of the Respondent ’ s tenancy and to recover possession of the premises, as well as an Order for unpaid rent and compensation from the overholding tenant in the sum of $1,215. The Appellant sought this Order for possession based on a fixed term one year lease that had expired on March 31, 2011.

[ 3 ] Before the RTDRS, Mr. Sinclair testified that when he signed the Renewal of Lease Agreement there were no dates inserted with respect to the Lease Agreement. Although the Lease Agreement submitted to the RTDRS showed that the Lease was dated from April 1, 2010 to March 31, 2011, Mr. Sinclair testified that all that was filled out when he signed the Lease Agreement was essentially the location of the premises, his name, and the rental amount. The dates that now appear on the Lease Agreement were not completed on the copy that Mr. Sinclair signed. Mr.

Sinclair further testified that he had tried to pay the rent for April and May, 2011 in cheque form, but that both cheques were returned to him by the Landlord. [ 4 ] The RTDRS officer ruled that the Appellant was not entitled to the relief it sought, namely an Order for Possession based on an overholding tenant with respect to an expired Lease Agreement. [ 5 ] Before the officer sided with Mr. Sinclair in dismissing the application, the Appellant had requested that the RTDRS officer adjourn the matter so that it could line up the people responsible for signing the lease at that particular time, but Mr.

Sinclair objected. [ 6 ] The present grounds of appeal is that given the previously undisclosed evidence introduced by Mr. Sinclair at the hearing, the officer should have allowed the adjournment sought by the Appellant to call additional evidence to speak to the new evidence presented by Mr. Sinclair. [ 7 ] When this matter was first heard on June 30, 2011, Mr. Sinclair had not filed an Affidavit and had asked for time to do so. He missed the July 8, 2011 deadline for filing his Affidavit, so the remainder of the submission process became nugatory.

The Law [ 8 ] The Landlord ’ 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. [ 9 ] 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. [ 10 ] 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. Conclusion [ 11 ] Having read the Transcript of the May 19, 2011 hearing I concur with the Appellant ’ s submission that they should have been allowed an adjournment in the circumstances to present evidence to counter Mr. Sinclair ’ s allegations that he had signed a blank Lease Renewal Form that did not contain the term of the Lease. While this allegation from Mr.

Sinclair could have been credible, it is on its face something that deserved an answer before a final decision was made on the Defence provided. [ 12 ] It would have been very desirable and much preferable had the Appellant had its appropriate signing official present at the hearing. However given that the Appellant was obviously of the view that the Lease Agreement had expired at the end of March 2011 it, and given that they had not apparently heard from Mr. Sinclair before the hearing, it was not completely unreasonable that they did not anticipate Mr. Sinclair ’ s argument.

The Appellant ’ s position was consistent with its refusal to take Mr. Sinclair ’ s tendered rental payments for April and May. [ 13 ] The Lease Agreement before the officer conducting the hearing did show that the Lease was from April 1, 2010 to March 31, 2011. The Landlord Applicant had also made it clear in their application that it was seeking Judgment for unpaid rent, and a termination of the tenancy and recovery of possession of the premises as well as compensation from the Respondent as an overholding tenant.

Accordingly the Respondent Tenant was aware of the allegation that there was a fixed term Lease in place that was the basis for the Order for Possession that had expired on March 31, 2011. [ 14 ] The Tenant did not lead any materials in advance of the hearing it appears to suggest what his defence was, although he is not required to do so as I understand it. In this particular hearing, the Applicant Landlord had already established enough of a basis before the hearing officer upon which they based their adjournment application.

It was not as if the person seeking the adjournment was obviously delaying, or should have been prepared to deal with the Respondent ’ s argument or defence that day. In this case it appears that there was nothing on the Record at least before me that would have led the Applicant to have been put on notice that Mr. Sinclair ’ s defence was that he signed a document that contained a blank term of tenancy. [ 15 ] Accordingly it seems that the Tenancy Dispute Officer in these circumstances should have granted the Applicant an adjournment, rather than dismissing the Application outright.

That adjournment would have allowed the Applicant to bring forward the appropriate official to give evidence on its behalf with respect to the term of the Renewal Agreement and what happened when the Renewal Agreement was signed. This Court on Appeal is entitled to draw inferences that that official would have confirmed the terms of the Renewal Agreement were in fact not left blank at the time that it was submitted for signature. Then the Tenancy Dispute Officer could have reached a conclusion based on the credibility issues before her as she found it with respect to all of the evidence and come to her decision.

By refusing the request for an adjournment, not all of the evidence that was sought to be presented reasonably in these circumstances was heard by Tenancy Dispute Officer. [ 16 ] For these reasons then I am remitting the matter back for a new hearing before a different Residential Tenancy Dispute Officer. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of August, 2011.

Donald Lee J.C.Q.B.A. Appearances: Norman H. Odinga for the Applicant Darryl Sinclair Appeared on His Own Behalf