Romaya v. Bucholz, 2021 ABQB 703

Court of Queen’s Bench of Alberta Citation: Romaya v. Bucholz, 2021 ABQB 703 Date: 20210902 Docket: 1903 09946 Registry: Edmonton Between: Sona Romaya Applicant - and - Justin Bucholz and Brandi Esau Respondents _______________________________________________________ Endorsement of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Sona Romaya seeks to appeal a decision of the Residential Tenancy Dispute Resolution Service rendered on May 19, 2021. Ms. Romaya claimed before the RTDRS Tenancy Officer that Mr. Bucholz and Ms.

Esau, who were former tenants in premises owned by Ms. Romaya, had failed to pay the utilities bills associated with the property for a significant period of time. Mr. Bucholz took the position that though the original written lease had required him to pay for utilities, at some point the rent was increased to an amount intended to include utilities. [ 2 ] The Tenancy Officer dismissed Ms. Romaya’s claim because she concluded that the evidence provided by Ms. Romaya did not establish that after the rent had been increased, the tenant was still responsible for utilities. She pointed to the fact that Ms.

Romaya did not provide evidence that she had advised Mr. Bucholz that a significant amount was owing to the utility provider until a significant debt had accumulated, or that Mr. Bucholz had otherwise become aware of that fact. On the evidence before the officer, Mr. Bucholz’s conduct was consistent with his version of the facts. Ms. Romaya’s conduct was not consistent with hers. Ms. Romaya had not proved her claim. The Tenancy Officer dismissed it. [ 3 ] The Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006 provides in s. 23(1) :

Any party who is subject to an order of a tenancy officer may appeal the order on a question of law or of jurisdiction to the Court of Queen’s Bench . . . [ 4 ] No question of law arises in this case. The tenancy officer made findings of fact on the basis of the evidence before her. The issue before her was within her jurisdiction to decide. I cannot see that she made any error of law. [ 5 ] Ms. Romaya filed a supplementary affidavit for the purposes of this appeal. It contained mainly text messages which she had told the Tenancy Officer she had in her possession but did not put in evidence at the hearing.

The affidavit is in the nature of an attempt to file “fresh evidence” on an appeal. It is not admissible on the appeal because it was clearly available at the time of the hearing appealed from yet was not introduced then. The Tenancy Officer made no error of law or jurisdiction in not considering evidence that was not before her. In any event, the information in the affidavit does not clearly establish that the rental agreement at the relevant time required the tenants to pay for utilities in addition to rent. [ 6 ] I dismiss the appeal. [ 7 ] I note that Ms.

Romaya was advised by the Tenancy Officer at the conclusion of the hearing that her right to appeal was limited to questions of law or jurisdiction. Ms. Romaya commenced this appeal regardless. Unfortunately, I expect Ms. Romaya, who did not have counsel in this matter, did not appreciate the difference between a question of fact and a question of law. [ 8 ] Mr. Bucholz and Ms. Esau are entitled to costs which I set in the amount of $250.00. Heard on the 25 th day of August, 2021. Dated at the City of Edmonton, Alberta this 2 nd day of September, 2021. B.R. Burrows J.C.Q.B.A.

Appearances: Sona Romaya Self Represented Justin Bucholz and Brandi Esau Self Represented