Greater Edmonton Foundation v Hetland, 2017 ABQB 430

Court of Queen’s Bench of Alberta Citation: Greater Edmonton Foundation v Hetland, 2017 ABQB 430 Date: 20170711 Docket: 1603 11007 Registry: Edmonton Between: Greater Edmonton Foundation Applicant - and - Gloria Hetland Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ Introduction [ 1 ] The Greater Edmonton Foundation (GEF) appeals a Residential Tenancies Dispute Officer’s (TDO) Order refusing its application to terminate the Respondent, Ms.

Hetland’s, tenancy for breaching a no smoking rule and defaulting on her rent and utilities (Order). [ 2 ] In the course of the three-day hearing before the TDO, the parties agreed that Ms. Hetland’s $459 arrears of rent and utilities constituted a substantial breach of s 21(

a) of the Residential Tenancies Act , SA 2004, c R-17.1 ( RTA ). The TDO concurred. The Order provided that Ms. Hetland repay the arrears at a rate of $50/month (to be added to her $462 monthly rent) and a balloon payment on April 1, 2017 (Repayment Schedule). Concerning breach of the no smoking rule, the Order directed that Ms. Hetland could remain a tenant if she smoked in her suite behind closed doors and in designated smoking areas.

In this regard, the TDO’s reasoning hinged on the term “grandfathered” found in the version of the apartment’s rules and regulations appended to and forming part of the lease, which was changed without Ms. Hetland’s consent pursuant to GEF’s ability to do so by the terms of the lease.

The Legislation and the Limited Right of Appeal [3] Briefly, the RTA is comprehensive legislation governing the rights and obligations of landlords and tenants. It is designed toprotect the interests of both landlords and tenants.

However, in large measure, it is intended to redress the imbalance of power inhering inthe landlord tenant relationship: Jones v Janz, 1999 ABQB 433 at para 11, citing Kasprzycki v Abel (1986), (ON SC),55 OR (2d) 536 (Ont Dist Ct); and Reference re Amendments to the Residential Tenancies Act (NS), (SCC), [1996] 1SCR 186 at para 104. [4] Pertinent details of the RTA and Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006, s 23(Regulation) are set out in Appendix A. [5] The RTA and Regulation limit appeals of a TDO’s decision to this Court on questions of law or jurisdiction.

New evidence isinadmissible, and only limited inferences may be drawn from the facts expressly found by the TDO. Those inferences cannot beinconsistent with the facts expressly found by the TDO and they must be necessary to determining the question of law or of jurisdiction:Regulation s 25. [6] I note that judicial review on questions of fact, mixed fact, and law would likely have been available in this case even thoughthe right of appeal is limited to questions of law and jurisdiction.

In a series of decisions dealing with statutory appeals on questions ofjurisdiction and law under the Municipal Government Act, RSA 2000, c M-26, this Court has held that the provision of a statutory appealcannot oust the Court’s inherent and constitutional jurisdiction to review, relying on Dunsmuir v New Brunswick, [2008] 1 SCR 190,2008 SCC 9 at para 31 [Dunsmuir]; Edmonton (City) v Edmonton (City of Edmonton Composite Assessment Review Board), 2012ABQB 118 at para 82; Associated Developers Ltd v Edmonton (City), 2011 ABQB 592 at para 26; and St Albert Housing Society v StAlbert (City), 2016 ABQB 203.

See also Foster v Alberta (Transportation and Safety Board), 2006 ABCA 282 at para 19 and Buckleyv Entz Estate, 2007 ABCA 7 at paras 13 and 14, for examples in other statutory contexts. Facts [7] An overview of the parties and the terms of the lease will set the stage for the legal discussion. a. The Parties [8] GEF is a non-profit charity whose purpose is to provide housing to low-income seniors in Alberta with a mission ofpositively influencing seniors’ quality of life by offering exceptional housing and services. A statutorily designated management bodyoperating under the auspices of s 1(

f) of the Alberta Housing Act, RSA 2000 c A-25, its portfolio in 2010 included the facility calledBuchanan Manor. [9] On assuming the operation and management of Buchanan Manor in 2010, GEF entered into new leases with all existingtenants, including Ms. Hetland who had been a tenant since 2008. [10] Presently 75 years old and a “dedicated lifetime smoker”, Ms. Hetland chose Buchanan Manor over another nearby propertybecause it was a “smoking building”.

A “Clean Air Initiative” instituted by GEF in mid-2014 changed that, and by the late fall of 2014,GEF had clearly signalled that smokers would be relegated to smoking in a designated smoking gazebo outdoors. The news did not sitwell with Ms. Hetland who continued smoking in her suite believing, despite GEF’s advice to the contrary, that as a “grandfatheredtenant”, she could. After several months, GEF sought to have her tenancy terminated, which led to the Order. b. The Lease [11] The August 2010 lease between GEF and Ms.

Hetland is comprised of a primary lease document (Lease) and a Scheduleentitled “Apartment Rule and Regulations” (Rules), which forms part of the Lease itself. [12] Ms. Hetland signed and initialled the Lease and the Schedule, both dated August 11, 2010. [13] The Lease provides that GEF can make Rules that form part of the Lease, that it can change the Rules without the tenant’sconsent or approval, and that failure to comply with the Rules can result in termination of the tenancy: 1 ...

The Tenant covenants and agrees that it is a “substantial Breach” of this Agreement and the Landlord may TERMINATE THETENANCY of the Tenant if the Tenant or the Tenant’s guests: (Emphasis in original) ... 1.4 Do anything that does not comply with the Rules and Regulations, which forms a fundamental part of this Agreement and is attachedhereto as

Schedule “A” which Rules and Regulations may be amended from time to time by the Landlord. ... 10.4 Adherence to Rules The Rules and Regulations attached as

Schedule “A” form a part of this Lease and must be obeyed by theTenant and Tenant’s family and visitors. The Rules and Regulations may be changed as required without the consent or approval of the

Tenant. Failure to comply with the Rules and Regulations may result in termination of the Lease by the Landlord in accordance withSection 10.2. (Emphasis added) [14] The Rules, which GEF modified in 2014, cover a wide gamut of activities ranging from smoking and observing safetyregulations to picture hanging and dress codes for common areas. [15] The Rule concerning smoking in effect when the Lease was made provides: 12 Smoking Most GEF buildings will become non-smoking according to the Greater Edmonton Foundation Non-smoking Schedule. The new non-smoking policy is being Grandfathered in.

For each site that will become a non-smoking building, tenants MUST talk withtheir site manager about the new rules and the date the policy becomes effective at their site. Smoking is only permitted in the designated smoking areas determined by the Manager of each site. Smokers must practice safesmoking habits. (Emphasis in original) [16] The 2014 amendment reads: Smoking is not allowed in the Premises and is ONLY permitted in the outdoor designated smoking areas determined by the SiteManagement.

Smokers must practice safe smoking habits including those who use oxygen. (Emphasis in original) Grounds of Appeal [17] GEF’s Notice of Appeal was replaced by an Originating Application, which states the same alleged errors of law: 1. Failing to find that the Appellant can change the Rules, which form part of the lease, to prohibit smoking in the leased apartment; 2. Failing to find that the tenant breached s 21(

b) of the RTA by interfering in a significant manner with the rights of other tenants bysmoking in the premises when prohibited from doing so; 3. Ordering a repayment

schedule of $492 paid on or before the first day of each month, commencing July 1, 2016 and continuingthrough March 1, 2017, which interferes with landlord’s statutory duty to assess rents annually. [18] However, GEF’s factum states the issues somewhat differently: 1. Did the TDO make an error in law by holding that the terms of the lease agreement which Ms. Hetland had with her prior landlord(executed in 2008) are applicable as between GEF and Ms. Hetland? 2. What is the legal effect of a term in a residential lease that expressly reserves to the landlord the ability to change the rules andregulations? 3.

Did the TDO make an error in law and exceed his jurisdiction in making an Order for arrears that prevented GEF from fulfilling itslegal requirements in relation to the assessment of Ms. Hetland’s rent? [19] I characterize the first three issues in the Originating Application as “Issues 1, 2 and 3”, and the first issue in the factum as“Issue 4”. The second and third issues in the factum are roughly analogous to the second and third issues in the Originating Application.

Standard of Review [20] GEF cites Malo v Mahfouz, 2010 ABQB 248 and Boardwalk Rental Communities v Ravine, 2009 ABQB 534 for theproposition that the standard of review of a question of law in an appeal of a TDO decision is correctness. In turn, Malo v Mahfouz citesRavine and Beaverbone v Sacco, 2009 ABQB 529.

Respectfully, as these cases do not address the standard of review analysis requiredby Dunsmuir and Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 , [2016] 2 SCR 293[Capilano], they are unhelpful. [21] Capilano directs that the Dunsmuir analysis should be applied to judicial review and statutory appeals of tribunal decisions(para 29), noting six Supreme Court of Canada decisions applying the reasonableness standard to a statutory appeal.

Among those sixdecisions, five involved questions of law: Smith v Alliance Pipeline Ltd, 2011 SCC 7; McLean v British Columbia (SecuritiesCommission), 2013 SCC 67; Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 [Sattva]; Ontario (Energy Board) v OntarioPower Generation Inc, 2015 SCC 44; and ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45.

At para 34,the Court noted that the reasonableness standard was often applied on a statutory appeal even when the appeal clause required leave toappeal limited to questions of law. [22] In Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, the Supreme Court noted at para 38:

Where a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal. [ 23 ] Dunsmuir outlines four factors to be considered on determining the standard of review at para 64: ...(1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [ 24 ] Dunsmuir also directs that deference on a question of law will generally be required when the tribunal: (

a) is interpreting its own statute, or statutes closely connected to its function; or (

b) has developed an expertise in the application of a general common law or civil law rule in a specific statutory context. A question of law that is not a question of central importance to the legal system and is outside the tribunal’s specialized area of expertise warrants deference: paras 54-55. Moreover, the presumption is that the standard of review is reasonableness if the tribunal is interpreting its home statute or statutes closely connected to its function: Capilano at para 22 . [ 25 ] Dunsmuir further identifies four categories calling for the correctness standard of review at paras 58-61: (

a) constitutional questions regarding the division of powers; (

b) issues “both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise”; (c) “true questions of jurisdiction or vires”; and (

d) issues “regarding the jurisdictional lines between two or more competing specialized tribunal”. (After Dunsmuir , the Supreme Court of Canada rejected the notion of adding statutory rights of appeal to this list: C apilano at para 27 ). [ 26 ] Finally, Dunsmuir identifies a two-step analysis: first determine “whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question,” and second, when the first inquiry is unfruitful, analyze the factors to identify the proper standard: at para 62. [ 27 ] With that instruction, I turn to analyze the appropriate standard of review, which I conclude is deferential. [ 28 ] The issues raised by GEF do not raise a question of constitutional division of powers, true questions of jurisdiction, or jurisdictional lines between competing specialized tribunals.

To the extent they raise questions of law, they do not appear to be of central importance to the legal system as a whole. Even if they are of central importance to the legal system, the TDO was interpreting his home statute and residential leases, which are the areas of expertise for which the tribunal was created. [ 29 ] I reach the same conclusion by applying the formerly called “pragmatic and functional analysis” ( Dunsmuir at para 63 ): (

a) Privative clause : there is a privative clause: Regulation s 21; (

b) Purpose of the tribunal and legislative scheme : The legislation creates a specialized, extra-judicial body for resolving disputes between residential landlords and tenants: Regulation ss 54.2; (

c) Expertise : The legislation cloaks the TDO with broad authority in a specialized area: Regulation ss 15-16. It also recognizes the TDO’s expertise (which is inherent in the tribunal and not particular to the qualification of an individual TDO: Dunsmuir at para 68 ; Capilano at para 33 ); and (

d) Nature of question : The legislation limits appeals to questions of law or jurisdiction. Questions of law, as alleged here, are subject to correctness if they fall outside the adjudicator’s specialized area of expertise and are of central importance to the legal system as a whole. Jurisdiction – Do the issues raise questions of law or jurisdiction? [ 30 ] As previously noted, an appeal under s 54.7(

n) of the RTA and s 23 of the Regulations is limited to questions of law and jurisdiction. [ 31 ] The questions raised by the Notice of Appeal are: (

a) Can the landlord change the Apartment Rules and Regulations? (

b) Did the tenant breach s 21(

b) of the RTA by interfering with the rights of other tenants by smoking? (

c) Did the TDO interfere with the landlord’s statutory duty to assess rents annually by imposing a repayment schedule? [ 32 ] The most significant change between the Notice of Appeal and the statement of issues in the GEF Brief is the following question:

Did the TDO make an error in law by holding that the terms of the lease agreement which Ms. Hetland had with her prior landlord(executed in 2008) are applicable as between GEF and Ms. Hetland? Issue 1 – Can the landlord unilaterally change the Rules? [33] This issue requires

interpretation of the Lease, which provides that the landlord can change the terms of the Rules without thetenant’s approval or consent. [34] For the reasons that follow, I find the Lease is a standard form contract and the TDO’s

interpretation of it raises a question oflaw. [35] Generally,

interpretation of contracts is a question of mixed fact and law: Sattva (at para 50) because “it is an exercise inwhich the principles of contractual

interpretation are applied to the words of the written contract, considered in light of the factualmatrix”. However, the

interpretation of standard form contracts, where there is precedential value to the

interpretation and there is nofactual matrix specific to the particular parties, raise a question of law: Ledcor Construction Ltd v Northbridge Indemnity InsuranceCo, 2016 SCC 37 at para 4 [Ledcor]. [36] A deeper explanation of the making and function of standard form contracts is found at para 25 in Ledcor where JusticeWagner quotes Professor John D. McCamus, The Law of Contracts, 2nd ed. (Toronto: Irwin Law, 2012) at p 185: ... the document put forward will typically constitute a standard printed form that the party proffering the document invariably uses whenentering transactions of this kind.

The form will often be offered on a “take it or leave it” basis. In the typical case, the other party, then,will have no choice but either to agree to the terms of the standard form or to decline to enter the transaction altogether. Standard formagreements are a pervasive and indispensable feature of modern commercial life. It is simply not feasible to negotiate, in any meaningfulsense, the terms of many of the transactions entered into in the course of daily life. [37] Facially, the Lease presents as a standard form contract, and given the nature of GEF’s operation, that seems logical.

Moreimportantly, the evidence clearly supports that it is. In response to questioning on having initialed a provision that she had “read andunderstood the contents of the residential lease,” Ms. Hetland said: On these two items, 13.1,and 13.2, there were 20 some of us in that room, and the representative from GEF was quite anxious to getthrough everything as possible [sic] and just said initial here and there. Which we did. I don’t quite agree that all of this was explained insuch detail as it may - could have been. Issue 2 – Did Ms.

Hetland breach RTA s 21? [38] This issue raises a question of mixed fact and law. [39]

Section 21 of the RTA applies to every residential tenancy lease in Alberta. It includes the obligation of tenants to notsignificantly interfere with the rights of the landlord or other tenants in the premises, the common areas, or the property: s 21(b).

Theprovision complements s 16, which obliges landlords to not disturb tenants’ possession or peaceful enjoyment of the premises. [40] In Canada (Director of Investigation and Research) v Southam Inc, (SCC), [1997] 1 SCR 748, theSupreme Court of Canada described the distinctions between questions of fact, questions of law, and questions of mixed fact and law atpara 35: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually tookplace between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [41] In Housen v Nikolaisen, 2002 SCC 33, the Court further described the distinctions between questions of fact and questions ofmixed fact and law at para 26: Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation and Research) v.Southam Inc. [sic], (SCC), [1997] 1 S.C.R. 748, at para. 35.

On the other hand, factual findings or inferences requiremaking a conclusion of fact based on a set of facts.

Both mixed fact and law and fact findings often involve drawing inferences; thedifference lies in whether the inference drawn is legal or factual. [42] Cases considering breach of the covenant of quiet enjoyment by smoking tenants involve questions of fact to determinewhether the purported breach significantly affects the landlord’s or other tenants’ rights. [43] As examples, in North Avenue Road Corp v Travares, 2015 ONSC 6986, a Residential Tenancy Board considered thesmoker’s long tenancy, the want of a smoking prohibition in the lease, the fact that the only other unit on the tenant’s floor was vacant,and lack of evidence that the vacant unit would not be rentable despite the tenant’s smoking.

On appeal, the Court found the Board erredby failing to consider landlord’s responsibility to maintain a residential complex in a good state of repair, fit for habitation, andcomplying with health, safety, housing and maintenance standards. Both decisions required an assessment of the facts. Lawrence vKaveh, 2010 BCSC 1403 involved an assessment of whether second-hand smoke affected quiet enjoyment.

The question in Young vSaanich (District) Police Department, 2003 BCSC 926 was whether smoking 1.5 medical marijuana cigarettes a day interfered withquiet enjoyment, while in Manhattan House v Ziegler, 28 OTC 294 (Ont Gen Div), the complaint was that second-hand smoke seepedinto an adjoining unit aggravating that tenant’s medical condition. [44] The issue of whether Ms. Hetland breached s 21 of the RTA is a question of mixed fact and law as the determination requiresan assessment of Ms. Hetland’s actions and their effect on the landlord and other tenants.

It requires the application of a legal standard,significant interference, to a set of facts.

Issue 3 – Did the TDO’s Order prevent GEF from annually assessing Ms. Hetland’s rent? [ 45 ] GEF argues that the Repayment

Schedule prevents it from fulfilling its statutory duty to assess Ms. Hetland’s rent annually. In response, Ms. Hetland urges that the result does not prevent GEF from seeking a change in the rent under s 16(3) of the Regulation to rescind the Order and direct a lump sum payment. [ 46 ] This is a question of law: Can a TDO order this tenant to pay compensation over a period that goes beyond the calendar year end? Issue 4- Did the TDO err by holding that GEF was bound by the lease between Ms.

Hetland and her prior landlord? [ 47 ] The TDO’s reasoning is somewhat confusing because of reference to the 2008 lease between Ms. Hetland and her prior landlord (Prior Lease), which I parenthetically note was not in evidence. [ 48 ] GEF cites this particular passage from the TDO’s reasons in support of its position that he erroneously concluded that it was bound by the Prior Lease. In the context of whether Ms.

Hetland had any information from GEF about the 2014 Smoking Rule the TDO said: And honestly I don’t think it matters in this particular case because the landlord does have to live up to the terms of the original agreement. And the original agreement was that Ms. Hetland would be allowed to smoke in her suite. (Emphasis added) However, the immediately preceding paragraph speaks to whether GEF served Ms.

Hetland with notice that the building was going to become non-smoking: And even when Greater Edmonton Foundation took over the premises, there was some indication that it might become a non-smoking building, but there was nothing that I have seen in official documentation that was served on Ms. Hetland, or nothing at least that was proven to be served on Ms.

Hetland that this was, in fact, going to be a non-smoking building. [ 49 ] I suspect, although it is not clear, that the TDO was addressing the grandfather clause in the Rules and suggesting that the terms of the Prior Lease regarding smoking were grandfathered into the Lease. [ 50 ] The TDO also said this in reference the Prior Lease: Now, with the smoking issue, I am really looking at some kind of direct evidence that would tell me a little bit about what the original agreement or the original contract, the original tenancy agreement was all about. (Emphasis added) [ 51 ] Finally, when speaking of a GEF witness’ evidence, the TDO said: But, really, she could not offer any evidence of any discussions that took place between Ms.

Hetland and the original owner and landlord of this particular building, Buchanan Manor. And she also couldn’t give any evidence as far as any discussions that took place with Ms. Hetland and the building management when this building was taken over by Greater Edmonton Foundation. (Emphasis added) [ 52 ] The framing of this issue raises a question of mixed fact and law: What were the terms of the original lease? Did Ms. Hetland have notice of the impending no smoking policy? What discussions took place with Ms. Hetland when GEF took over the operation and management of the building?

Given the confusion caused by the TDO’s reasons, I would have found this analysis unreasonable if I had the jurisdiction to review a question of mixed fact and law. The Supreme Court of Canada has directed that the adequacy of reasons is not a stand-alone basis to quash a decision: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 14 [ Newfoundland and Labrador Nurses’ Union ]. Two Questions of Law Arise [ 53 ] There are two questions of law that can be addressed on this appeal: 1. Did the TDO unreasonably conclude that GEF could not change the Rules? 2.

Did the Repayment

Schedule prevent GEF from fulfilling its statutory duty to assess Ms. Hetland’s rent annually? Analysis 1. Did the TDO unreasonably conclude that GEF could not change the Rules? [ 54 ] A decision is unreasonable if the decision does not fall within the range of possible acceptable outcomes defensible in respect of the facts and law, and if there is no justification, transparency and intelligibility within the decision making process: Dunsmuir at para 47 . [ 55 ] For the reasons that follow, the TDO’s failure to address GEF’s express contractual right to change the Rules was unreasonable.

[56] The Lease explicitly defines the Rules as a fundamental term of the Lease, twice clearly stating that they can be changedunilaterally. [57] In a standard form contract scenario such as this, the tenant has no opportunity to negotiate the terms. Accordingly, Ms.Hetland simply agreed to the terms presented by GEF. There is no question, as Ms. Hetland contends, whether there is consensus adidem. [58] Ms.

Hetland also contends that the Decision implicitly reconciles the conflict between the Lease’s grandfathering provisionand GEF’s Rule changing power by finding a contractual intention to have the former, which is a specific term, override the latter, whichis a general term. [59] BG Checo International Ltd v British Columbia Hydro and Power Authority, (SCC), [1993] 1 SCR 12 isinstructive on the manner by which conflicting contractual terms are to be addressed. The Court must: ... attempt to find an

interpretation which can reasonably give meaning to each of the terms in question. Only if an

interpretation givingreasonable consistency to the terms in question cannot be found will the court rule one clause or the other ineffective... In this process,the terms will, if reasonably possible, be reconciled by construing one term as a qualification of the other term...

A frequent result of thiskind of analysis will be that general terms of a contract will be seen to be qualified by specific terms -- or, to put it another way, wherethere is apparent conflict between a general term and a specific term, the terms may be reconciled by taking the parties to have intendedthe scope of the general term to not extend to the subject-matter of the specific term. [60] As the TDO did not give meaning to the conflicting terms of the Lease or attempt to reconcile them, this aspect of the Order isunreasonable. [61] While the undefined grandfathering clause may be ambiguous, the TDO sensibly interpreted it using by applying the commonusage of the term.

That said, there is nothing ambiguous in the two provisions permitting GEF to change the Rules without Ms. Hetland’sconsent. The TDO was obliged to attempt to reconcile the conflict and explain his reasoning.

He did not. [62] Newfoundland and Labrador Nurses’ Union instructs that a reviewing Court should not find a decision to be unreasonableonly because the reasons are inadequate, noting at para 12: That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplementthem before it seeks to subvert them. [63] However, before the reasons can be supplemented, there must at least have been reasons on the issue for the Court tosupplement. In this case, there are none, and therefore, no basis to attempt to supplement the TDO’s reasons. [64] Moreover, Ms.

Hetland entered into a lease that expressly provides that the Rules (forming part of the lease) can beunilaterally amended. Whether the grandfathering provision meant what the TDO said it did – that although the building was to becomea non-smoking building, existing tenants who smoked could continue to do so – the Rules were subsequently amended to remove thatclause and to prohibit smoking. [65] By failing to address a key element of the Lease, the Order lacks justification and intelligibility, and represents anunacceptable outcome.

Further, if the grandfathering provision in the Rules and the power to change them were inconsistent, it wasimportant for the TDO to have addressed and resolved that inconsistency. [66] This ground of appeal succeeds and the Order permitting Ms. Hetland to smoke in her suite behind closed doors is set asideand I declare GEF’s entitlement to change the Rules to prohibit smoking valid. 2. Did the Repayment

Schedule prevent GEF from fulfilling its statutory duty to assess Ms. Hetland’s rent annually? [67] Section 16(2) of the Regulation provides that a TDO may order a tenant to pay compensation as a specified sum together withthe tenant’s rent for a specified number of rent payment periods. [68] As a body providing subsidized housing, GEF is statutorily bound to reassess rents annually. The Repayment

Schedule spansthe period in which that must occur (July 2016 - April 2017). [69] However, as Ms. Hetland notes, s 16(3) permits a landlord to apply to rescind an order made under s 16(2), and if GEF’sannual assessment reveals that more rent is payable than what the Repayment

Schedule calls for, it can apply to have the Order changed.I agree with Ms. Hetland’s view. [70] Although a more troublesome process than GEF would want, the Repayment

Schedule did not prevent it from fulfilling itsstatutory duty to assess Ms. Hetland’s rent annually, and this ground of appeal fails. Conclusion [71] In the result: i. GEF’s appeal on the issue of whether it could unilaterally change the Rules to prohibit smoking is granted and the Order allowingMs. Hetland to smoke in her suite is set aside; ii. GEF’s ability to change the Rules to prohibit smoking is declared valid;

iii. GEF’s appeal of the Order concerning the Repayment

Schedule is dismissed; and iv. The issue of whether Ms. Hetland’s continued smoking constitutes a substantial breach of the Lease or s 21 of the RTA is referred to the TDO for reconsideration. [ 72 ] As the parties have enjoyed mixed success, they will bear their own costs. Heard on the 19 th day of April, 2017. Dated at the City of Edmonton, Alberta this 11 th day of July, 2017. J.E. Topolniski J.C.Q.B.A. Appearances: Todd Shipley & Heidi Besuijen RMRF for the Applicant Sarah Eadie Edmonton Community Legal Centre for the Respondent

Appendix A Section 1(1) (p) (

i) of the RTA defines a “substantial breach” as: a breach of a covenant specified in

section 21 or a series of breaches of a residential tenancy agreement, the cumulative effect of which is substantial. In turn, in part, s 21 says: The following covenants of the tenant form part of every residential tenancy agreement: (

b) that the tenant will not in any significant manner interfere with the rights of either the landlord or other tenants in the premises, the common areas or the property of which they form a part. Section 3(1) precludes giving up RTA tenant rights: Any waiver or release by a tenant of the rights, benefits or protections under this Act is void. Further, s 54.2 of the RTA provides an alternative to a court application to resolve residential tenancy disputes – a dispute resolution service (DRS).

Under s 54.3, once the landlord or tenant has sought a remedy through the DRS, the other party is bound by that election and cannot then make apply to court unless the application to DRS is withdrawn. Under s 54.5, the DRS has the authority to order remedies set out in the regulations, and s 54.6 provides that applications to DRS must be made in accordance with the regulations. Further the DRS must conduct its proceedings and makes its decisions in accordance with the regulations.

Section 54.7 authorizes the Lieutenant Governor in Council to make regulations establishing a dispute resolution mechanism, including making regulations to deal with, among other things: 1) establishing the Residential Tenancy Dispute Resolution Service and appointing an administrator, tenancy dispute officers and any other employees; 2) the kinds of applications, disputes and issues that must be referred to a court by the Dispute Resolution Service; 3) the kinds of applications, disputes and issues that are required to be referred to a court by the Dispute Resolution Service; 4) the circumstances in which the Dispute Resolution Service may refuse to accept an application to the Service, or may refer an application to a court; 5) the powers and duties of tenancy dispute officers; 6) the matters that tenancy dispute officers may or must consider when dealing with a dispute; 7) the remedies that the Dispute Resolution Service is authorized to order, including orders providing for costs; and 8) the appeal of an order to the Court of Queen’s Bench on a question of law or jurisdiction.

The Lieutenant Governor in Council made such a regulation, the Residential Tenancy Dispute Resolution Service Regulation , Alta Reg 98/2006 (the Regulation). The following provisions in the Regulation are relevant to this appeal: 15(1) After holding a hearing and having regard to all the circumstances, where the tenancy dispute officer is satisfied that (

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.

(2) A tenancy dispute officer may include in any order the terms and conditions that the tenancy dispute officer considers fair and proper in all the circumstances.

(3) In making an order, a tenancy dispute officer may consider any relevant information obtained by the tenancy dispute officer in addition to the evidence given at the hearing if the tenancy dispute officer first informs the parties of the additional information and gives them an opportunity to explain or refute it.

(4) 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. Section 16(2) provides: 16(2) Where a tenancy dispute officer makes an order requiring a tenant to compensate a landlord, the tenancy dispute officer may make an order (

a) permitting the tenant to pay the compensation by paying a specified sum together with the tenant’s rent for a specified number of rent payment periods, or (

b) requiring the tenant to pay the compensation to the landlord in a lump sum.

Section 17 of the Regulation requires the TDO to refer questions of constitutional law or human rights issues TDO considers appropriate for a court to hear and matters outside the DRS jurisdiction to the Court.

Section 21 of the Regulation is a privative clause providing: 21 An order of a tenancy dispute officer is binding on the parties to the dispute unless it is (

a) set aside or varied by a tenancy dispute officer, or (

b) set aside or varied on appeal.

Section 23 provides that any party may appeal a TDO Order to the Court of Queen’s Bench, but only on questions of law or jurisdiction.

Section 24 provides that the Court’s decision on appeal is final and cannot be further appealed. Section 25(1)(

a) provides that the Court cannot hear new evidence and (

b) provides that the Court can confirm, vary, reverse or cancel the TDO’s order.