Kerr v Coulombe, 2016 ABQB 11

Court of Queen ’ s Bench of Alberta Citation: Kerr v Coulombe, 2016 ABQB 11 Date: 20160107 Docket: 1503 18068 Registry: Edmonton Between: Gary Kerr and Jason Kerr Applicants - and - Betty Coulombe Respondent _______________________________________________________ Reasons for Judgment of W. S. Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is another case that illustrates some of the difficulties with the Residential Tenancy Dispute Resolution Service process.

However, there might be a fifth way to provide interim relief on these facts. [ 2 ] Four other grounds for interim relief are suggested in: Boardwalk v Montour , 2015 ABQB 242 and Cardinal v Amisk Housing Association, 2015 ABQB 503 . Facts [ 3 ] The application concerns rental premises in Morinville. The facts are set out in the affidavit of Gary Kerr, as follows: 1. On November 27, 2015 there was a hearing at the RTDRS. Attached as Exhibit A is a copy of the Order. 2. My hearing was scheduled for 1:30 on the 27 th of November, 2015. I checked in with the receptionist. 3.

The Receptionist told me to have a seat and they would call me. At 2:30 pm, I went to the desk to see if I should continue to wait or if the Applicants weren’t coming.

4. When I went to the Receptionist, she went to the offices in the back and returned with the Order. I did not have a chance to speak onour behalf. 5. We were behind on rent because of the work slow down but our rent for November, 2015 is paid in full as well as the $50.00 latefee. 6. We would like to move out on Dec. 3/15, when we moved in, we paid 1st and last month’s rent, so if we stayed our rent forDecember is already paid. [4] The landlord appeared by telephone. The Order notes: “Tenants not participating”. [5] Mr.

Kerr’s first application for relief in this Court was adjourned, and the Order stayed in the interim, so that the Court couldbe certain that Ms. Coulombe (who lives in Bonnyville) had proper notice and a chance to appear. The case came back to court December 9th. The landlord and the tenants were present. Mr. Brian Summers, Q.C. appeared as Amicus counsel. [6] Ms. Coulombe did not have notice of the December 1st Order. She engaged a Civil Enforcement agency and changed the locks.

At the December 9th application, an arrangement was worked out to permit the tenants to retrieve their belongings; they had foundalternate accommodation. Provision was also made for payment of the civil enforcement costs and a per diem rate for a portion ofDecember rent. [7] The main question is whether the Court has the power to grant interim relief (short of an appeal) when the RTDRS Orderwas obtained in breach of a fundamental rule of natural justice. [8] Rule 9.15 permits an Order to be set aside for non-appearance (Rule 9.15(1)(b)).

In Abougouche v Miller, 2015 ABQB 724,at para 18, Master Farrington noted the limited applicability of Rule 9.15 to these circumstances, finding that Rule 9.16 limited it toOrders of this Court. In that case the tenant had statutory notice but no actual notice of the hearing. She had been flooded out but thenotice was posted to her door. This, despite the fact that the parties had been communicating by text and email. [9] Masters cannot hear appeals (Court of Queen's Bench Act, RSA 2000, c C-31, s 9). However, a stay pending appeal can begranted: Boardwalk and Cardinal (above).

The main problem is that an appeal is usually futile when one side hasn’t had their say.Section 25(1)(

a) of the Residential Tenancy Dispute Resolution Service Regulation, (AR 98/2006) prevents new evidence on appeal. TheOrder could be set aside on appeal for its inherent flaw but it could not be determined on the merits. And by the time the appeal is heard,the relief is usually pointless anyway. Is there an inherent jurisdiction to stay or set aside the Order? [10] The starting point is to ask whether the legislation entirely covers the field: CIBC v Green, 2015 SCC 60. Here, it plainlydoes not.

RTDRS orders have to be filed in this Court to have effect (Residential Tenancy Dispute Resolution Service Regulation, s 22).From that point, the Rules and various other statutes, such as the Civil Enforcement Act are needed to give it power.

There is no directequivalent to Rule 9.15 (or, for that matter, s 42 of the Provincial Court Act, RSA 2000, c P-31) in the Regulation. [11] The Court has an inherent jurisdiction to stay or set aside an Order or a Judgment obtained in breach of natural justice: Halsbury, 3rd, Volume 22, para 1665, pg 785; Craig v Kanssen, [1943] 1 All ER 108 at 113; Chief Kofi Forfie v Barima KwabenaSeifah, [1958] 1 All ER 289 (PC); Wolfenden v Wolfenden, [1947] 2 All ER 653; Marsh v Marsh, (UK JCPC), [1945]AC 271 at 284 (PC); Wiseman v Wiseman, [1953] 1 All ER 601 (especially at 607, per Denning, LJ).

This is the type of jurisdictioncodified by Rules 9.15 and 9.16 for orders made in this Court (Abougouche). And see also: Canam Enterprises Inc v Coles, (2000), (ON CA), 51 OR (3d) 481 (Ont CA), aff’d 2002 SCC 63; Meads v Meads, 2012 ABQB 571 at para 588, theJudicature Act, RSA 2000 c J-2, s 2(1); and Re Boyle, 2006 ABCA 409, at para 30, per Côté, JA. [12] The only way that a legislature can oust a superior court's inherent jurisdiction is by using very explicit language: Yeoman vMiller, (1991), 123 AR 231, (Alta QB).

In 80 Wellesley St East Ltd v Fundy Bay Builders Ltd, (ON CA), [1972] 2 OR 280, 25 DLR (3d) 386 (Ont CA),per Brooke, JA (at para 9). [13] This is not a case of non-appearance after statutory notice: Abougouche and Hansen v Hicks, 2007 ABQB 746. [14] Some cases favour the three-part test for a stay that is used for injunctive relief (eg Zibrowski v Nicolis, 2012 ABQB 236, perLee,

J) but, in my view, an obvious and fundamental failure of natural justice warrants an interim stay without more.

Requiring theApplicants to show that they would have had a viable argument on the merits if they had been heard would turn this type of applicationinto a collateral attack or a quasi-appeal that conflicts with the Residential Tenancy Dispute Resolution Service Regulation. [15] In Seaford Court Estates Ltd v Asher, [1949] 2 All ER 155 at 164, Denning, LJ said: Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets offacts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity.

The English languageis not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts ofParliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to thelanguage and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity.It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.

In the absence ofit, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task offinding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of thesocial conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written wordso as to give "force and life" to the intention of the legislature. That was clearly laid down (3 Co. Rep. 7b) by the resolution of the judges

[Sir Roger Manwood, C.B., and the other barons of the Exchequer] in Heydon’s case (4), and it is the safest guide to-day. Good practical advice on the subject was given about the same time by Plowden in his note (2 Plowd. 465) to Eyston v. Studd (5). Put into homely metaphor it is this: A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

In my view, it cannot have been the intention of the legislature to leave the parties without any remedy on facts such as these. [ 16 ] This is one of those cases in which the justice of the common law can remedy the defects of the legislature. It can and should iron out the creases or fill in this gap by granting a stay.

I acknowledge Master Farrington’s remarks in Abougouche about s 21 of the Regulation which provides: Binding nature of order 21 An order of a tenancy dispute officer is binding on the parties to the dispute unless it is set aside or varied on appeal. (Emphasis added) While an interim stay might be permissible, it may not be appropriate simply to set aside the Order without an appeal. To follow Lord Denning’s metaphor, that would probably involve more than ironing out the creases; probably more like adding sleeves or a pocket.

If necessary, a tenant could ​​prosecute her appeal (with inevitable result), or perhaps, more creatively, invite the RTDRS Office to re-hear the matter and deal with it under section 19(1)(

c) of the Residential Tenancy Dispute Resolution Service Regulation which permits the Officer to deal with errors or inadvertent omissions. But that remains for another case. Heard on the 1 st day of December, 2015. Dated at the City of Edmonton, Alberta this 7 th day of January, 2016. W. S. Schlosser M.C.C.Q.B.A. Appearances: Gary Kerr and Jason Kerr Self-Represented Betty Coulombe Self-Represented Brian Summers, Q.C. Amicus Counsel