Flood v Baker, 2017 ABQB 757

Court of Queen’s Bench of Alberta Citation: Flood v Baker, 2017 ABQB 757 Date: 20171206 Docket: 1701 09672 Registry: Calgary Between: Richard Flood and Joan Flood Applicants - and - Amanda Baker Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Richard Flood and Joan Flood appeal the decision of the Alberta Residential Tenancy Dispute Resolution Services (RTDRS) on June 21, 2017, which allowed Amanda Baker’s claim against them.

Background [ 2 ] Mr. and Mrs. Flood own a condominium apartment near the University of Alberta campus in Edmonton, Alberta. They leased the apartment to Ms. Baker by way of a fixed term lease for a term expiring May 31, 2017. Ms. Baker had apparently leased the

apartment on a different basis for the previous school year. Ms. Baker gave notice to Mr. and Mrs. Flood in mid-March that she would beleaving a month early. [3] Mr. and Mrs. Flood denied her request to leave early, believing they could hold Ms. Baker to the lease. Ms. Baker did vacatethe apartment on May 1, 2017. She stopped payment on the post-dated cheque for May’s rent she had previously given the Floods.Because of that, the Floods did not give Ms. Baker back the damage deposit. [4] That caused Ms.

Baker to commence proceedings for the return of the damage deposit ($1,800). [5] A hearing was held at the RTDRS on June 21, 2017. The dispute officer awarded Ms. Baker $1,800 plus $75 in costs. Hearing [6] The issue at the hearing was whether the Floods had adequately mitigated their damages. Ms. Baker acknowledged that shehad broken the lease, but felt that the Floods had not done enough to re-lease the apartment in the six weeks or so between her givingnotice and moving out. According to Ms.

Baker, there were people who expressed to her interest in renting in the building, but theapartment was not shown to prospective tenants at any time while she was still there. She described the apartment as being “in a greatarea” and being in a “very sought after building.” [7] Mr. Flood testified that they had shortened the lease term to the end of May, at Ms. Baker’s request. It was Ms. Baker whohad wanted a fixed term lease “so she couldn’t be kicked out earlier.” According to Mr. Flood, there had been discussions about thempossibly selling the apartment. [8] Mr.

Flood also testified about the Floods’ efforts to re-lease the apartment. He said that the time to lease apartments such astheirs was August, in anticipation of the fall term. He said they had posted an advertisement, and got two calls on it, both relating torenting the apartment in August or September. His best memory at the hearing was that “we advertised it in the month of May, early inthe month of May.” [9] Mrs. Flood was unable to be at the hearing and it was she who placed the ad. The dispute officer attempted to get Mrs. Floodon the phone to find out the exact date the ad was placed, but Mrs.

Flood was unavailable. [10] The dispute officer made his findings of fact and gave his judgment. On mitigation, he stated: But case law is quite clear that the landlord must mitigate the loss. The only mitigation of loss evidence I have seen is an ad with no date.Mr. Flood testified that he didn’t put it in until the first week of May, and then he testified that he cancelled the ad because basically he issick of being a landlord and he wants to sell the house...But that tells me he has made zero efforts to mitigate the loss, and therefore you(Ms.

Baker) are entitled to the full refund of your security deposit. [11] The Floods appealed the decision. In the course of the appeal, they provided a copy of the receipt for the ad, showing that thead was in fact placed in early April, not May as Mr. Flood had testified to. Grounds for Appeal [12] The Floods argue that the dispute officer erred in his finding that the Floods had not done enough to mitigate their loss. Analysis [13] Section 23(1) of the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (RTDRS Regulation)provides for an appeal from a dispute officer’s decision.

However, the RTDRS Regulation limits appeals to questions of law orjurisdiction. [14] In Malo v Mahfuz, 2010 ABQB 248, Lee J stated at para 16: [16] This Court is not entitled to review questions of mixed fact and law in RTDRS. The Alberta Court of Appeal was similarlyrestrained by legislation in the ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2005 ABCA 122 , whereRussel J.A. wrote at para. 55: 55 ATCO argues the Board erred in its articulation and application of the prudence test, in finding ATCO imprudent. Theapplication of the test is an issue of mixed fact and law.

Because the governing legislation grants a right of appeal with leave only onquestions of law or jurisdiction, questions of mixed fact and law can only come before this Court where there is an extricable legalquestion: see Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 at para. 36.

The Board’s application of its prudence testis an issue inextricably bound to the facts and is therefore not properly before us. [15] Questions of mixed fact and law thus cannot be heard on appeal, unless the question contains an extricable legal question (seealso Alberta (Workers' Compensation Board) v Alberta (Workers' Compensation Board Appeals Commission), 2005 ABCA 276 atpara 28). [16] Additionally, as noted by Lee J in Malo v Mahfuz, appeals under the RTDRS Regulation are based on the record before thedispute officer, and no new evidence is admissible on the appeal.

That is clear from section 25(1) of the RTDRS Regulation.

[ 17 ] Thus the evidence sought to be used by the Floods on their appeal, that the apartment was first advertised in early April and not early May as Mr. Flood has mistakenly testified to, is not admissible on the appeal. I must determine this appeal on the basis of what was seen and heard by the dispute officer. [ 18 ] The issue before me is clearly a question of mixed fact and law. It is the application of the facts to a standard of law or a legal test. Did the evidence support the legal requirement of mitigation? That question does not contain an extricable legal question.

As such, I do not have the jurisdiction to hear the appeal. [ 19 ] It is important to note, however, that superior courts can still judicially review dispute officers’ decisions for errors of mixed fact and law. As discussed by Topolniski J in Greater Edmonton Foundation v Hetland , 2017 ABQB 430 at para 6 , the existence of a limited right of appeal under the RTDRS Regulation does not oust the inherent and constitutional jurisdiction of superior courts to review decisions. [ 20 ] Someone unhappy with a decision of the RTDRS may follow the provisions for appeal set out in the RTDRS Regulation .

Those provisions limit appeals to questions of law and jurisdiction and do not permit new evidence to be introduced.

It is unlikely that many self-represented litigants know what all of that means, and many such appellants are dismayed to find that their appeals based on fact findings are dismissed without consideration of the alleged errors. [ 21 ] An alternative approach where errors of fact or mixed fact and law are concerned is to commence an action for judicial review of the RTDRS decision, generally done by filing an originating application under Rule 3.15 of the Alberta Rules of Court . [ 22 ] Judicial review is a highly complex remedy that perplexes lawyers and judges, let alone self-represented litigants.

It is far costlier than pursuing an appeal under the RTDRS Regulation . But judicial review is the only way a person unhappy with a decision from the RTDRS can have the decision reviewed for errors of fact or errors of mixed fact and law. [ 23 ] If an applicant goes straight to judicial review, there is an argument available to the respondent that the applicant should firstly have followed the appeal process in the RTDRS Regulation .

To avoid that argument and potential defence, the applicant/appellant might file two proceedings: an appeal under the RTDRS Regulation and an originating application for judicial review under the Rules of Court.

That in turn might involve an application to have one of the processes stayed until the other is decided. [ 24 ] This is not at all practical, and fails to satisfy the imperative of the Rules of Court “to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.” Nevertheless, the obvious intent of the Lieutenant Governor in Council when passing the RTDRS Regulation was to provide a timely and inexpensive remedy as an alternative to going to court, and limit access to the courts when the first of the parties to commence a claim starts proceedings before the RTDRS. [ 25 ] An advantage of judicial review is that the time limit for commencing that proceeding is generally six months from the date of the decision, although that time limit is usually unhelpful in landlord and tenant matters where a timely resolution is important. [ 26 ] The major disadvantage for applicants on judicial review is that the standard of review for errors of fact or mixed fact and law is generally “reasonableness.” Significant deference is given to the administrative officer on the basis of the expertise of the officer (or panel).

Alternative analysis using the “reasonableness” standard of review [ 27 ] Even though no application for judicial review has been made, I will analyze the decision as if I were conducting a judicial review and reviewing the decision for reasonableness. [ 28 ] In that circumstance, I would have found the decision of the dispute officer reasonable. The dispute officer’s task in this case was to weigh the evidence submitted. The only evidence regarding mitigation that the parties provided was that the Floods had begun to advertise the apartment for rent in early May, despite knowing since mid-March that Ms.

Baker was leaving at the end of April. On the basis of that evidence, it was reasonable for the dispute officer to conclude that the Floods made insufficient efforts to mitigate their damages. [ 29 ] That does not mean that I necessarily agree with it, but whether I agree is not the test. The test is whether on the evidence heard by him, the dispute officer’s decision was within the range of justifiable, possible outcomes. [ 30 ] The evidence that the Floods sought to adduce on appeal, that they had actually placed the advertisement in early April, would have been inadmissible.

Fresh evidence is generally not permissible on judicial review outside of limited circumstances, none of which would have applied here ( Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) , 2006 ABQB 904 at paras 41-42 ). [ 31 ] The dispute officer’s task in this case was to weigh the evidence. Ms.

Baker’s evidence was that she did not believe the Floods had done a good enough job mitigating their damages because only one ad was insufficient effort, and because of the apartment’s proximity to the University hospital and University campus, she did not think there should have been any difficulty renting the apartment out right away. Mr. Flood testified that they had advertised the apartment for rent, but had only received two inquiries, neither of which were for May occupancy. [ 32 ] Mr. Flood mistakenly testified that the advertisement was arranged in early May.

Subsequent information, not presented at the hearing because of Mrs. Flood’s unfortunate unavailability, showed me that the apartment was in fact advertised for rent in April. [ 33 ] Applications for judicial review and appeals are not a “do-over.” On the record, it was open to the dispute officer to conclude that insufficient efforts had been made to re-lease the apartment. Indeed, the only evidence before him was that the apartment had not been advertised as available until early May, despite notice having been given some six weeks earlier.

[ 34 ] It cannot be said that the dispute officer’s decision in that regard was unreasonable; there was evidence supporting his decision. He could have accepted Mr. Flood’s evidence and determined in the circumstances that mitigation efforts were sufficient, but it was open to him to reject that evidence. Indeed, absent the accurate evidence that the apartment was advertised for rent in early April, it would have been more questionable had the dispute officer found that sufficient efforts had been made. Conclusion [ 35 ] As I do not have jurisdiction to hear this matter, the Floods’ appeal must be dismissed.

Heard on the 15 th day of November, 2017. Dated at the City of Edmonton, Alberta, this 6 th day of December, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Richard Flood and Joan Flood, Applicants on their own behalf Amanda Baker, Respondent on her own behalf