Hewitt v Barlow, 2016 ABQB 81

Court of Queen ’ s Bench of Alberta Citation: Hewitt v Barlow, 2016 ABQB 81 Date: 20160208 Docket: 1501 14874 Registry: Calgary Between: Andrew Hewitt Plaintiff - and - Jeremy Barlow Defendant _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] This application for a stay of enforcement of a decision of the Residential Tenancies Dispute Resolution Service (“RTDRS”) came before me in morning chambers.

At the time, I granted the stay of enforcement and I gave oral reasons. I issue these written reasons in order to clarify my reasons as well as provide a reference to them. Background

[ 2 ] Applications for stays of enforcement and appeals arising from the RTDRS have recently been the subject of some controversy. See, for example, the “Ablawg” published by the University of Calgary, dated January 19, 2016, entitled “For Shame: An Obvious and Fundamental Breach of Natural Justice by the Residential Tenancies Dispute Resolution Service (RTDRS)” at http://ablawg.ca/wp-content/uploads/2016/01/Blog_JWH_Kerr_v_Coulombe_Jan_2016.pdf. [ 3 ] That blog, written by Jonnette Watson Hamilton, arose from concerns expressed by Master Schlosser in Kerr v Coulombe , 2016 ABQB 11 .

In Kerr he reviewed, amongst other cases, Abougouche v. Miller , 2015 ABQB 724 , a decision of Master Farrington. In both Abougouche and Kerr , the facts cried out for a re-hearing by the RTDRS. In both cases the Masters in Chambers struggled with what remedy might be appropriate and within our jurisdiction. [ 4 ] I am of the understanding that it is the view of the RTDRS that if there is any complaint about their decision the matter is to be dealt with by appeal, and appeal only.

We are repeatedly advised in morning chambers by frantic tenants who are trying to address a decision made against them by the RTDRS that when they have attended at the RTDRS office, they have been told to go to the Court of Queen’s Bench. It is my understanding that the RTDRS will abide by whatever order is directed by this Court. [ 5 ] The question is whether there is any need to send the parties to the Court of Queen’s Bench, where the complaint is that there has not been a proper hearing.

If there was a proper hearing but a party disagrees with the outcome, the remedy of course is an appeal. [ 6 ] In Abougouche , at paragraph 30 Master Farrington noted that Rule 9.15 of the Alberta Rules of Court (which allows applications to set aside proceedings without an appeal) is available only to the Court of Queen’s Bench in dealing with its own orders.

He expressed hope that jurisdiction could be found or, if not, that it be given to the RTDRS: Unfortunately, if there is a lacuna in the procedure as to how to deal with set aside applications at the RTDRS it is not something that I can address simply by assuming jurisdiction in an area where I do not otherwise have jurisdiction. It would need to be dealt with in the legislation, or the Regulation , or at the procedural rules level of the RTDRS. I do not believe that I have the jurisdiction to fill that gap, if there is one.

It may be that the RTDRS finds those powers implicitly in its mandate and regulatory framework in an appropriate case, or that they are one day expressly given to the RTDRS, but those issues are not before me and I express no opinion on them. [ 7 ] I agree that Rule 9.15 is not available to a Master in Chambers to set aside a decision of the RTDRS, but in my view, the jurisdiction exists for the Tenancy Dispute Officers to invoke the rule, as explained below. [ 8 ] My conclusion is that the RTDRS has misunderstood the extent of their authority.

As I explain below, the answer to the question set out above in paragraph 5 requires an analysis of the Residential Tenancies Act , the RTDRS Regs, the RTDRS Rules of Practice and Procedures, The Provincial Court Act and the Alberta Rules of Court . It might be described by someone not familiar with the interplay of these statutes, regulations and rules as a “treasure hunt”.

It is not obvious, and it requires looking at all of these enactments together. [ 9 ] The answer is that when the complaint is that the RTDRS has failed to hold a proper hearing – which is distinct from whether the decision itself is correct – the RTDRS can look into whether there has been such an error made, and if so it can fix its own error by re-hearing the dispute properly. The Appeal Process [ 10 ] An appeal from the RTDRS is to a Justice of the Court of Queen’s Bench: Residential Tenancies Dispute Resolution Service Regulation , Alta. Reg. 98/2006 (“RTDRS Regs”),

section 23 and Court of Queen’s Bench Act , RSA 2000, Chap. C-31,

section 9. The ability of a Master in Chambers to do some interim justice is essentially limited to staying enforcement, which may be done even in the absence of an appeal: Boardwalk v. Montour , 2015 ABQB 242 . [ 11 ] However, when the underlying problem is the failure of natural justice before the RTDRS, a system that demands an appeal to set things right can be a failure of justice, or at least access to justice in a meaningful way is denied. [ 12 ] Firstly, as discussed in Boardwalk , at paragraphs 11 to 13 , an appeal is often not the appropriate remedy, because all that is required is interim relief.

Sometimes the tenant wants to pay the missing rent on a later date than that which was required by the RTDRS order, and get an extra week to move out. In Boardwalk , a mistake was made when a consent order was agreed to (the deadline for payment did not align with the receipt of government assistance cheques) and the RTDRS apparently believed that it could not repair the damage. The landlord changed the locks. There was a new baby, or about to be one. Timing was clearly of the essence to set things right. [ 13 ] Secondly, an appeal can take far too much time given the matters in issue.

The RTDRS Regs do not offer encouragement as to the speed at which an appeal might be heard: they say ( section 24(2) ) that the transcript (discussed below) must be filed within 3 months from the date the appeal is filed. If the tenant has been wrongly evicted, a successful appeal that is heard weeks or months later before a Justice of Court of Queen’s Bench could be a pyrrhic victory, given the time involved.

By the time the appeal has been heard, unless a stay has been granted, the entire process may have become pointless. [ 14 ] Thirdly, in light of the Alberta Rules of Court that came into effect in 2010, and recent directions from the Court of Appeal dealing with

summary judgment applications, courts often talk about “proportionality” when considering appropriate remedies. An appeal to a Justice is often disproportionate to the issues between the parties. The cost is often not a lot less than the rent in dispute. The appellant must pay for a transcript ( RTDRS Regs section 23(2) ) unless the Court of Queen’s Bench orders otherwise or there is none available, and for a tenant in rental premises, this cost alone, in addition to the $250 that must be paid to open the court file, can be prohibitive.

A corporate landlord is required to retain legal counsel: 908077 Alberta Ltd. (Escape & Relax) v 1313608 Alberta Ltd. , 2015 ABCA 117 . The expenses of the appeal can easily exceed the typical amounts in dispute in the residential cases that we see in Masters’ Chambers.

[ 15 ] Fourthly, when there has been a failure of natural justice, the remedy sought is often not in the nature of an appeal. The party asking for assistance does not seek, at first instance, a ruling on the merits of the case. The applicant simply seeks a fair hearing. Although a court hearing an appeal can conclude that the process has been unfair and direct that the matter be heard again, only when there has been a fair hearing is an appeal really an appropriate remedy, especially where the appeal is supposed to be on the record, as here: RTDRS Regs

section 25 . The appellant from the RTDRS must first order a transcript of the hearing. When the appellant was not allowed to appear before the RTDRS, and his or her complaint is that that failure of the RTDRS to hear his or her side of the case is the complaint, there is little point, if any at all, in ordering a transcript. A transcript might demonstrate nothing more than that the party was not present.

A transcript might also allow a partial inquiry as to whether there is any merit to the position that the absent party wanted to put forward, but without a proper hearing a review of the transcript will likely offer little assistance. [ 16 ] The Court could dispense with the ordering of a transcript, on application (( RTDRS Regs section 23(2) (a)) but the experience of this Court is that by the time the appellant appears asking for a stay, he or she has already paid for the transcript, and has already paid the $250 to open the court file.

Steps could be taken to refund the transcript money and cancel the order, but for the reasons set out below this kind of application should not come to the Court of Queen’s Bench in the first place. The Facts [ 17 ] The complaint in this case is that the RTDRS did not follow the rules of natural justice. [ 18 ] Mr. Barlow is a tenant. He has a dispute with his landlord. He believes that his landlord is Jennifer Hewitt-Gumienny.

While he was out of town on work (a common circumstance Alberta, where many workers work in oilwell service-related industries that require them to be away from their home base for days if not weeks at a time) the landlord served him with notice of the hearing before the RTDRS. However, since he could not be served personally he was served substitutionally, apparently by taping the applicant’s materials to his door. [ 19 ] There is nothing wrong with a landlord obtaining an order allowing for substitutional service, and following it.

However, it is not personal service and the subsequent hearing based on substitutional service proceeds on less secure grounds that it would if the respondent were personally served. In this case, Mr. Barlow learned of the application and the date when it was to be heard because a friend told him, by telephone, of the hearing. He had not seen the materials. [ 20 ] A fundamental point that he wanted to make before the RTDRS was that his landlord was not Andrew Hewitt, but Ms. Hewitt-Guimienny. His unsigned copy of the lease showed her name. He had been paying the rent to her, not to Mr.

Hewitt. [ 21 ] He telephoned the RTDRS and, he says, spoke to a clerk by telephone, explaining that he was away on work, that Mr. Hewitt is not the landlord, that he has never met him, and if Mr. Hewitt has taken over the property he had never provided proof that he has done so.

He says the clerk told him that the RTDRS does not require proof of ownership by an applicant landlord. [ 22 ] Of course, when ownership of the premises is placed in issue by the tenant, the RTDRS should require proof of ownership, or clear authority of the landlord to act for the owner (for example, by a management company handling tenancies for the registered owner). [ 23 ] In oral argument before me, he advised that the RTDRS clerk told him that the matter would likely be rescheduled, but he should send a letter.

He faxed a letter to the RTDRS setting out his general position. [ 24 ] He deposed in his affidavit filed with this Court that on December 22, after he got back from working out of town, he contacted the RTDRS and he was told that there would or should have been a notice to reschedule mailed to him. [ 25 ] On January 8, 2016, he returned to the rental property and found that the locks had been changed, and a warning letter and an order were taped to his door. He called the bailiff, and says he was told rudely that he had been evicted and that the police would be called if he tried to enter his suite.

He did not have access to his belongings. [ 26 ] He learned that the hearing had proceeded on December 9, 2015, in his absence, and without his knowledge, contrary to what he says he was told by the RTDRS clerk. The decision says: AND UPON hearing what was said by S. Wilson for the landlord, the Respondent did not attend, however his written submission was considered. [ 27 ] On December 9, the landlord (or perhaps not the landlord, in light of the dispute) Mr. Hewitt was represented by a bailiff firm. He did not attend in person.

At that hearing I am told by the bailiff that a signed version of the lease was presented to the Tenancy Dispute Officer, apparently showing Mr. Hewitt as landlord. [ 28 ] I note that

section 17 of the Residential Tenancies Act , RSA 2004, Chap. R-17.1 says:

(1) If a residential tenancy agreement is in writing and the tenant has signed and returned the written residential tenancy agreement to the landlord, landlord shall, within 21 days after the written residential tenancy agreement is returned to the landlord, serve on the tenant a copy of the written residential tenancy agreement signed by the landlord.

(2) A tenant may withhold payment of rent until the tenant is served with a copy of the residential tenancy agreement under subsection

(1). [ 29 ] Notwithstanding this provision, and the knowledge that Mr. Barlow had advised that his copy of the unsigned lease did not show Mr. Hewitt as landlord, the hearing officer ordered payment of arrears to Mr. Hewitt. [ 30 ] On this last issue alone, it is clear that it would have been appropriate to hear what Mr. Barlow had to say about the lease. Perhaps Mr. Hewitt is not the landlord and has no standing at all. Perhaps he never provided Mr. Barlow with the signed copy of the lease, in which case the tenant is entitled to withhold rent. The mere existence of a signed lease showing Mr.

Hewitt as the landlord should not have been the end of the inquiry, where the tenant was asserting that the copy in his possession was different. Analysis The Applicable Rules [ 31 ] The rules of natural justice require that the legal maxim audi alteram partem (“hear the other side”) be followed. That is the starting point for this analysis.

Courts sometimes hear matters without notice, but they are usually for an order for substitutional service because the applicant cannot find the respondent, or they are brought on an emergency basis, in which case the respondent has the opportunity to apply to the court that granted the order and have it set aside. [ 32 ] Aside from being one of the basic tenets of our legal system, the obligation to hear both sides is expressly embedded in the RTDRS Regs promulgated under the Residential Tenancies Act . Section 13(2) expressly says, “For the purposes of a hearing,…(

b) a party to the hearing is to be given an opportunity to respond to what was presented by the other party or witness at the time of the hearing and in the manner the tenancy dispute officer considers appropriate.” [Emphasis added.] [ 33 ] The RTDRS Rules of Practice and Procedure (the “RTDRS Rules”), created pursuant to regulation 5(

a) of the RTDRS Regs , also addresses the requirement for a fair hearing. Rule 1.1 of the RTDRS Rules says, The objective of the rules of practice and procedure is to secure a consistent, efficient and just process for resolving disputes.

These rules will be interpreted broadly to produce the fairest, least expensive and quickest resolution of the dispute. [ 34 ] Rule 1.2 expands this concept under the heading “Purpose of the hearing”: The purpose of a hearing is to enable the Tenancy Dispute Officer to receive and assess the evidence presented by each party, to hear the tenant and landlord explain their versions of the dispute, and make an impartial and binding decision to resolve the dispute. [Emphasis added.] [ 35 ] Rule 8.1 says: The Tenancy Dispute Officer will conduct the hearing in accordance with these rules of practice and procedure. [ 36 ] Rule 8.2 says: Each party will be given sufficient opportunity to present his or her relevant evidence. [ 37 ] Furthermore, the definition of the word “Hearing” in the RTDRS Rules is: The procedure in which parties are called together by a Tenancy Dispute Officer and given an opportunity to present evidence, submit arguments, and question the other parties.

The hearing may take place in person or by telephone conference call. [ 38 ] The RTDRS Regs , in

section 19 , addresses “typographic, grammatical, arithmetic or other similar errors”, clarifying the order, and dealing “with an obvious error or inadvertent omission in the order”. This provision appears to be focused on typographical errors and the like, not breaches of the rules of natural justice. The Authority of a Tenancy Dispute Officer [ 39 ] The authority of the Tenancy Dispute Officer is not limited to

section 19 of the RTDRS Regs . Section 15(4) sets out the broad authority of the Tenancy Dispute Officer: Subject to this regulation, a tenancy dispute officer may grant any remedy that a judge of the Provincial Court may grant under

part 3 or 4 of the Act. [ 40 ] The “Act” referenced is the Residential Tenancies Act .

Part 3 of that Act deals with applications to the Court, and the definition of “Court” in that legislation is either the Provincial Court or the Court of Queen’s Bench, but Regulation 15(4), quoted above,

is specific to the authority of a Judge of the Provincial Court. Therefore, the first question is what authority a Provincial Court Judge would have. [ 41 ] The authority of a Provincial Court Judge is established by the Provincial Court Act , RSA 2000 Chap. P-31. Section 8(2) of that Act says: Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of the matter before the Court, the Court may (

a) apply the Alberta Rules of Court , and (

b) modify the Alberta Rules of Court as needed. [ 42 ] It is surely “expeditious and inexpensive” to deal with a breach of the rules of natural justice promptly, without a full appeal. [ 43 ] The Alberta Rules of Court contains rule 9.15, which is the rule in dealing with setting aside an order that was made without notice or following a hearing where an affected person did not appear because of an accident or mistake or because of insufficient notice. [ 44 ] Rule 9.15(1) provides as follows: On application, the Court may set aside, vary or discharge a judgment or an order, with her final or interlocutory, that was made (

a) without notice to one or more affected persons, or (

b) following a trial or hearing at which an affected person did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing. [ 45 ] Subrule (2) provides as follows: Unless the Court otherwise orders, the application must be made within 20 days after the earlier of (

a) the service of the judgment or order on the applicant, and (

b) the date the judgment or order first came to the applicant’s attention. [ 46 ] Subrule (3) provides broad remedies for judgments taken by default. [ 47 ] Subrule (4) allows setting aside, varying or discharging an interlocutory order because information arose or was discovered after the order was made, with the agreement of every party, or “on other grounds that the Court considers just.” [ 48 ] An “interlocutory order” is an order made during the course of a legal action, incidental to the principal object of the proceedings.

A Tenancy Dispute Officer’s final order resolving the dispute is not “interlocutory”. [ 49 ] In my view, if this matter had come before a Provincial Court Judge, and the tenant had: (

a) advised the Court in advance of the hearing, in writing, that he had not yet seen the materials and had learned about them only indirectly, (

b) advised in advance, in writing, that he had arguments that he wished to present to the Court, (

c) advised, in writing, that he could not attend on the hearing date selected, on short notice without his input, (

d) requested in writing that the hearing be rescheduled once he had returned to the city and could attend, and (

e) been advised by a clerk of the Court that the hearing would likely be adjourned, but the matter had somehow simply gone ahead in his absence and without his knowledge, the Provincial Court Judge would have the authority to hear the application to set aside the order and

schedule a re-hearing so that the rules of natural justice could be followed. [ 50 ] Furthermore, I would be very surprised if the Provincial Court Judge did not

schedule a re-hearing with these circumstances. There would have been a mistake (by proceeding in the face of this information) and there had been insufficient notice of the hearing. [ 51 ] The fact that service was done substitutionally, in compliance with the Court’s practice, is not a complete answer to the question of whether there has been sufficient notice in the circumstances. The date and the substitutional service were done without the respondent’s knowledge.

Once the Respondent is engaged, and the circumstances are known, then what is “sufficient notice” can be determined. [ 52 ] In light of the fact that a Tenancy Dispute Officer has the same authority as a Provincial Court Judge in residential tenancy latters, a re-hearing is also possible when the RTDRS has failed to follow the rules of natural justice. [ 53 ] Furthermore, given the definition of “Hearing” in the RTDRS Rules, when one party has not been “given an opportunity to present evidence, submit arguments and question the other parties”, a “hearing” as defined by the RTDRS Rules has not been held.

Without having conducted a hearing, it is an error to grant an order.

Decision [ 54 ] Accordingly, I directed a stay of the enforcement of the order that had been issued in error, and I directed that the matter be referred back to the RTDRS to hear Mr. Barlow’s application for a re-hearing, and that that application should be before a different Tenancy Dispute Officer than the one who had held the original hearing in Mr. Barlow’s absence. Possibility of a Reasonable Apprehension of Bias [ 55 ] The reason for the requirement that it be heard by a different tenancy review officer was to avoid a reasonable apprehension of bias.

Where there is a reasonable apprehension that a tribunal (whether it is a Tenancy Dispute Officer, a Provincial Court Judge, a Master in Chambers, or a Justice of the Court of Queen’s Bench) is biased in favour of or against one party, regardless of whether there is actual bias, as a matter of course the hearing should be referred to at different member of the tribunal. [ 56 ] Rule 9.16 states that an application to set aside under Rule 9.15 is to be brought before the judge or master who granted the original judgment or order unless the Court otherwise decides.

Perhaps the application to set aside and seek a re-hearing should have been brought before the same Tenancy Dispute Officer who granted the order, but in order to avoid any further complications, I wanted to make sure that it was heard by someone different. I did not mean to suggest that the original one would be biased; I was trying to avoid further complications. Further Stay [ 57 ] I further directed a stay of the enforcement of the order pending the appeal which Mr. Barlow has brought. That is, if a new hearing is directed to be heard, but the outcome is the same, Mr.

Barlow is still entitled to bring an appeal to a Justice of the Court of Queen’s Bench. He has already filed that appeal in Queen’s Bench Court Docket 1601-00013 and paid the appropriate fee. There is no reason for him to have to start that process all over again. Jurisdiction [ 58 ] It may be argued that my order is in the nature of mandamus, which is an order compelling a public officer (here, the RTDRS) to perform its public duty. Section 9(3) (

d) of the Court of Queen’s Bench Act, RSA 2000, Chap. C-31 limits the jurisdiction of a Master in Chambers and states that we have no jurisdiction to grant mandamus orders. However, here the Court of Queen’s Bench is asked to enforce the RTDRS order, and certain consequences flow. [ 59 ] Where the rules of natural justice may not have been followed, it is appropriate to impose a stay of enforcement. A stay of enforcement pending appeal is expressly contemplated in

section 26 of the RTDRS Regs. It is also available under

section 17 of the Judicature Act , RSA 2000, Chap. J-2 and the other authorities cited in Boardwalk at para. 16-25 . A simple stay of an order in these circumstances would be of no assistance to the parties without giving a clear explanation and direction, and it would be a violation of the Foundational Rules 1.1, 1.2 (in particular 1.2(2)(

b) and 1.2(4) of the Alberta Rules of Court . [ 60 ] I understand that the RTDRS is not refusing to perform its public duty in these matters; rather, it has been operating in the belief that the rules governing its jurisdiction do not allow a re-hearing. [ 61 ] Accordingly, my decision is more in the nature of declaratory relief as to the appropriate remedies available, which is expressly authorized by

section 11 of the Judicature Act even when no other relief is or could be claimed. Also, as noted in Boardwalk , the filing of an RTDRS order engages section 5(2) of the Civil Enforcement Act , RSA 2000, Chap. C-15. That

section provides that, “the Court may ... make any order, including a binding declaration of right ... that is necessary ... to ensure protection of the interests of any person in property that is the subject of civil enforcement proceedings”. [ 62 ] In any event, if my jurisdiction does not extend to expressly directing the RTDRS to conduct a re-hearing application, then I would nonetheless have stayed the enforcement of the order to allow that to occur, and if it did not, until the matter had been appealed. The outcome is the same. Follow-Up Appearance [ 63 ] Mr.

Barlow returned before me on February 1, 2016 seeking to correct the materials that he had filed in the Court of Queen’s Bench in the first application. He was concerned that the copy of the letter that he had actually sent to the RTDRS was, in fact, not the same as the copy that he had provided to this Court. He had revised it, and inadvertently provided the wrong copy to this Court. [ 64 ] He brought that application with virtually no notice to landlord (who did not attend), and he advised that the re-hearing application was scheduled for February 2.

Accordingly, I simply directed him to let the Tenancy Dispute Officer know that he had returned to the Court of Queen’s Bench with this request. I advised that there was no need to “correct” the material before me because it would not have changed the outcome. Furthermore, it was on the eve of the rehearing application. Heard on the 12 th day of January, 2016. Dated at the City of Calgary, Alberta this 8 th day of February, 2016.

A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Jeremy Barlow Self-Represented for the Applicant (Defendant) Sabrina Wilson Serv-It Calgary Inc. (Bailiff) Agent for the Respondent Plaintiff