LARISSA SELLERS APPLICANT - v. -, 2022 SKKB 234

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 234 Date: 2022 10 24 Docket: KBG-RG-02178-2022 Judicial Centre: Regina ___________________________________________________________________________ IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: LARISSA SELLERS APPLICANT - and - BOARDWALK REIT PROPERTIES HOLDINGS LTD. RESPONDENT - and - DIRECTOR OF THE OFFICE OF RESIDENTIAL TENANCIES RESPONDENT Appearances: Larissa Sellers appearing on her own behalf Mallary St.

Cyr appearing on behalf of Boardwalk REIT Properties Holdings Ltd. ___________________________________________________________________________ JUDGMENT LABACH J. October 24, 2022 ___________________________________________________________________________

[ 1 ] The tenant, Larissa Sellers, appeals from a decision of a hearing officer of the Office of Residential Tenancies [ORT] dated September 7, 2022, 2022 SKORT 2415 . The hearing officer determined that the landlord, Boardwalk REIT Properties Holdings Ltd. [Boardwalk], had proven their claim. As a result, he issued a writ of possession placing the landlord in immediate possession of Ms. Sellers’ rental unit and ordered her to pay Boardwalk $693 for rent arrears. [ 2 ] On September 12, 2022, Ms.

Sellers filed a notice of appeal of the hearing officer’s decision at the Court of King’s Bench for Saskatchewan, Judicial Centre of Regina. Her notice of appeal frames her appeal in the following way: Due Process. I did not receive the hearing papers until Sept 6 after work. That was not enough time or the minimum time 2 days to read my rights & dispute the process. [ 3 ] As Ms.

Sellers was appealing a writ of possession, she paid one month’s rent to the ORT on September 12, 2022, in compliance with s. 72(1.3) of The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 [ Act ], and s. 10.1 of The Residential Tenancies Regulations, 2007 , RRS c R-22.0001 Reg 1 . She filed a certificate of payment of rent stamped by the ORT along with her notice of appeal, confirming same. She served both Boardwalk and ORT with her notice of appeal on September 12, 2022 and filed affidavits of service confirming same. [ 4 ] I am satisfied that both Boardwalk and ORT have notice of this appeal. Ms. St.

Cyr, an employee of Boardwalk, attended the appeal and made argument. The ORT did not appear at the appeal however they provided their file for the review of the Court. THE LEGISLATION [ 5 ] The following provisions of the Act are relevant: 70

(1) An application for an order respecting any residential tenancy dispute between a landlord and a tenant must be made in the form and manner that the director may direct.

(2) Subject to subsections (14) and (14.1) and The Fee Waiver Act , if an application is made pursuant to subsection (1) and the prescribed application fee is paid to the director: (

a) the director shall: (

i) select a hearing officer from the panel of hearing officers appointed pursuant to

section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter; and (ii) issue to the applicant a written notice of the date, time, place and means of hearing; and (

b) the applicant shall serve that notice on those persons concerned with the matter that the director may direct and in the manner the director may direct. … 72

(1) Subject to subsections (1.1) and (1.3), any person who is aggrieved by a decision or order of a hearing officer or the director, whether or not the decision or order is made without notice, may appeal the decision or order on a question of law or of jurisdiction to the Court of Queen’s Bench within 30 days after the date on which the decision or order is signed and dated by a hearing officer. … 82 …

(2) Unless otherwise specified in this Act , any notice or other document that is required to be served pursuant to this Act or in any proceeding or matter under the jurisdiction or control of the director must be served: (

a) in the case of service on a tenant other than a former tenant: (

i) by personal service on the tenant; or (ii) by posting the notice or document on the front door of the tenant’s rental unit and by serving the notice or document by ordinary mail or in electronic form; …

(4) A notice or document served by ordinary mail is deemed to have been served on the third business day following the date of its mailing unless the person to whom it was mailed establishes that, through no fault of his or her own, the person did not receive the notice or document or received it at a later date. … 82.1

(1) Notwithstanding that service of a notice or other document does not comply with this Act , a hearing officer may order that the service is sufficient if, in the opinion of the hearing officer, the notice or other document came to the attention of the person to be served.

(2) Notwithstanding that a hearing officer has ordered that a person has been sufficiently served pursuant to subsection (1), that person

may bring evidence to prove that the person was not served or was served on a later date.

(3) For the purposes of subsection (2), the person mentioned in that subsection may apply pursuant to

section 70 for: (

a) an adjournment; (

b) an extension of time; or (

c) a rehearing of an application. JURISDICTION [6] The right of appeal is set out in s. 72(1) of the Act. Dawson J. in Stokvis v Gorsalitz, 2008 SKQB 269, 318Sask R 88, summarized the Court’s appellate jurisdiction in the following way: 4 In this type of appeal, the court is statutorily restricted to addressing questions of law or of jurisdiction. This court may not revisit thequestions or issues of fact determined by the hearing officer. This appellate function means that where there is some relevant evidence tosupport a finding of fact, that finding may not be disturbed on appeal.

Only when there is no relevant supporting evidence is the linebetween a valid non-appealable finding of fact and invalid appealable finding crossed. (See Farm Credit Corp. v. Strelioff (1990), (SK CA), 87 Sask. R. 52 (Sask. C.A.) at para. 8-15; Reich v. Lohse (1994), (SK CA), 123 Sask. R. 114(Sask. C.A.); Rehaume v. Dodd, 2003 CarswellSask 535, 2003 SKQB 356 [2003] S.J. No. 524; Jamieson v. Adams, 2004 SKQB 212,[2004] S.J. No. 433, 132 A.C.W.S. (3d) 779). ANALYSIS [7] Ms.

Sellers argues that she did not get sufficient notice of the hearing of Boardwalk’s application forimmediate possession of her rental unit and an order for arrears of rent. She stated that she was out of town in the days leading up to theSeptember 7, 2022 hearing date set by the ORT and only got the notice regarding the hearing at 5:30 p.m. on September 6, when shereturned home. She went on the ORT website that evening to try to figure out the process and what she had to do.

She tried to file somedocuments online but there were problems with the website and she could not get anything filed. [8] The hearing was set for September 7, 2022 at 11:15 a.m. by telephone. She appeared by telephone and told thehearing officer she did not feel prepared for the hearing. She thought she may have asked for time to file some material but was notcertain about that. Despite this, she made some arguments but was not sure how to bring her problems with Boardwalk to the attention ofthe hearing officer.

The day after the hearing was finished, she went to the ORT office to try to file some material but they did not acceptit because the hearing was over. [9] Ms. St. Cyr on behalf of Boardwalk said that she could not say what documents Ms. Sellers was served withregarding the hearing. She guessed it was the summons for the hearing and other documents they would be relying on to prove their case.She said that the documents were served by regular mail and by posting them to the door of Ms.

Sellers’ unit but she admitted she wasnot the person that sent the notice in the mail or did the posting to the door. [10] In the ORT’s file submitted to the Court for this appeal, there is an email dated August 25, 2022, fromJacqueline Donais, a dispute resolution facilitator with the ORT, to Boardwalk providing them with a hearing notice for their claimagainst Ms. Sellers. The relevant portions of that email read as follows: Please see the attached Hearing Notice for claim 222388.

Inside are instructions which provide guidance on completing and serving thehearing notice on your current tenant (the “Respondent”). Once you have served the Hearing Notice on the Respondent (including the“What You Should Know About the Hearing” page) you MUST upload the signed and served Hearing Notice (including the “WhatYou Should Know About the Hearing” page) to the ‘Evidence’

section of your online portal submission. You MUST also complete aCertificate of Service for each tenant through the online portal – this can be found in the ‘Hearings’ tab of the application. If you haveany questions, please reply to this email or contact the Office of Residential Tenancies at any of the methods listed below. Failure toupload the Hearing Notice or complete the Certificate of Service through the online portal may result in your claim being dismissed.

NOTE: Please read through the documents (including the information pages) carefully to ensure the respondent is, or ALL respondentsare, properly served and that all required information and documentation is completed and submitted to our office. … [11] Included with the aforementioned email to Boardwalk was a one-page document providing service instructions.This document stated in part: 1. Enclosed find your Hearing Notice which must be printed, completed and served on the Respondent tenant by the deadlines below– this should be done right away.

You also must send a copy to the Office of Residential Tenancies (ORT) and failure to do so by thegiven deadlines may result in the hearing being cancelled and the application deemed abandoned. … 2. Enclosed find “WHAT YOU SHOULD KNOW ABOUT THE HEARING,” which must also be served on the Respondent tenantand the ORT with the Hearing Notice.

Notwithstanding that service of a notice or other document does not comply with TheResidential Tenancies Act, 2006, the Hearing Officer may order that the service is sufficient if, in the opinion of the Hearing Officer, thenotice or other document came to the attention of the person to be served. personal service no later than September 4, 2022 When serving personally, it is recommended that you advise the Reponsdent [sic] tenant that it is a claim and notice of a hearing datewith the ORT. If they won’t accept it, you can leave it at their feet.

OR posting on the entrance of the rental unit AND electronic service no later than September 1, 2022 Sending a true copy of the Hearing Notice electronically (email, text message, and social media). OR posting on the entrance of the rental unit AND regular mail postmarked no later than August 30, 2022 Must be sent through Canada Post. 3. Service must be proven prior to the day of the hearing. The person who served the Hearing Notice, must complete a Certificate of Service to demonstrate service prior to the hearing.

Early submission of the Certificate of Service to the ORT permits the certificate to be reviewed and any problems corrected before the hearing, and may permit the Hearing Notice to be served properly and avoid delay. [ 12 ] In this case, Boardwalk chose to serve Ms. Sellers by posting their documents to the door of her rental unit and sending them to her by regular mail. As per the aforementioned document, they were to do that no later than August 30, 2022. [ 13 ] Boardwalk was also required to serve Ms. Sellers with a document list and copies of the documents they wished to rely on at the hearing.

The draft document list sent to Boardwalk as part of the ORT’s email contained the following instruction: Number and list below, in order of dates, all relevant documents and/or photographs in your possession that you may seek to rely on. Attach to this list each document, marked with the corresponding number of the list. This must be served on the opposing party and filed with the ORT. [ 14 ] According to the document list Boardwalk filed with the ORT office, they were relying on four documents: the hearing notice, form 7 and eviction letter, ledger and lease, to prove their case.

There were no certificates of service regarding the documents Boardwalk served on Ms. Sellers in the ORT file sent to the Court for this appeal. There was one page that stated the following: Type How did you serve this notice? Regular mail Recipient Who was this item served to? Larissa Sellers Person Who Served Notice What is the full legal name of the person who served this notice? Sarianne Friske-Schlosser Date of Service The date and time you served this document to the tenant.

Aug 30, 2022 12:00:00 PM Address What address was this sent to? 1054 Gladmer Park, Regina, SK, CA S4P 2X9 [ 15 ] There was a second page that stated: Type How did you serve this notice? Posted on Rental Unit Door Recipient Who was this item served to? Larissa Sellers Person Who Served Notice What is the full legal name of the person who served this notice? Harsh Shah Date of Service The date and time you served this document to the tenant. Aug 30, 2022 12:00:00 PM

[ 16 ] In the hearing officer’s September 7, 2022 written decision, he says this about service: SERVICE OF DOCUMENTS: [4] The Notice of Hearing was properly served by mail and post. [ 17 ] With the greatest of respect to the hearing officer, I do not see how he could have reached this conclusion on the basis of the material filed. There were no certificates of service in the file received from the ORT confirming that Ms. Sellers was served by mail or by posting something to the door of her rental unit. It does not appear that Boardwalk filed any certificates of service establishing how and what they served on Ms.

Sellers despite the ORT’s August 25 email and their instruction form clearly indicating that these must be filed or the hearing may be cancelled and their application deemed abandoned. There is also no evidence that Boardwalk’s document list with attached documents they would be relying on at the hearing was ever served on Ms. Sellers despite the document list specifically stating that that must occur. [ 18 ] The one-page document in the ORT file that says that Sarianne Friske-Schlosser served Larissa Sellers with the “notice” by regular mail to 1054 Gladmer Park, Regina on August 30, 2022, is not signed by Ms.

Friske-Schlosser. It does not indicate that the document “What You Should Know About the Hearing” and Boardwalk’s document list with attached documents were also served on Ms. Sellers on August 30, 2022 by regular mail. [ 19 ] The second one-page document in the ORT file that says that Harsh Shah served Larissa Sellers with the “notice” by posting it to the rental unit door on August 30, 2022, is not signed by Mr. Shah. It does not indicate the address of the rental unit door that he posted the notice on.

It does not indicate whether he posted any other documents to the door besides the notice of hearing. [ 20 ] I recognize that Ms. Friske-Schlosser was called as a witness by Boardwalk at the hearing. No transcript of the hearing was filed on this appeal, nor was it required to be filed. It is possible Ms. Friske-Schlosser gave testimony regarding how she served Ms. Sellers and what she served on her. However the material ORT sent to Boardwalk is clear that if a notice of document is posted to a rental unit door, it must also be served by mail or electronic service. Mr.

Shah was not called as a witness and I do not understand how the hearing officer could have been satisfied what unit Mr. Shah posted something to, the date he posted it, or what specifically he posted to the door. Therefore, I am not satisfied that Boardwalk served Ms. Sellers as required by the Act . [ 21 ] All this being said, Ms. Sellers did appear at the September 7, 2022 hearing by telephone. She admitted receiving notice of the hearing at 5:30 p.m. on September 6, 2022, the day before the hearing.

She did not state whether she got Boardwalk’s list of documents and the copies of the documents they were relying on at the hearing. She went on the ORT website that evening to try to figure out what she had to do. She tried to file some documents online but was not able to do that. She told the hearing officer she had only just received the notice of hearing and did not feel that she was prepared for the hearing but he did not adjourn the hearing to allow her time to prepare or get any documents filed that she wished to rely on. [ 22 ]

Section 82.1(1) of the Act allows a hearing officer to validate service that does not comply with the Act if they are of the opinion that the notice or document came to the attention of the person to be served. The wording of paragraph 4 of the hearing officer’s September 7, 2022 decision does not suggest to me that he was relying on this provision. He stated that proper service of the notice of hearing occurred. Not only am I not satisfied that proper service occurred, I am also not satisfied that the documents Boardwalk was relying on were served on Ms.

Sellers. [ 23 ] Even if the hearing officer’s comments regarding service could be construed as validating irregular service, I interpret s. 82.1(1) as giving the hearing officer discretion to hear and determine the issues in the face of irregular service as long as doing so does not prejudice the other party’s ability to respond to the hearing. Here, it does not appear from the hearing officer’s decision that he engaged in that analysis. Had he, it would have been clear to him that Ms.

Sellers was prejudiced by the irregular service, that there was no indication she was aware of what documents Boardwalk was relying on to prove their case, and by the time the notice came to her attention, she did not have adequate time to prepare for the hearing and was not prepared for the hearing. The principle of procedural fairness and due process requires that where one party seeks a remedy, the opposite party is entitled to advance notice of the case that must be met and a fair opportunity to meet that case. That did not occur in this case.

CONCLUSION [ 24 ] In the circumstances, it was an error for the hearing officer to conclude that the notice of hearing was properly served by mail and posted on the door of Ms. Sellers’ rental unit, that Ms. Sellers had advance notice of the case she had to meet, and that she had sufficient time to prepare for the hearing. Together, these errors of law rendered the hearing unfair. Ms. Sellers’ appeal is allowed, the order made by the hearing officer on September 7, 2022 is set aside, and the matter is remitted back to the ORT for a new hearing. “D.E. LABACH” J. D.E. LABACH