CAROL DROVER APPELLANT - v. -, 2022 SKKB 254

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 254 Date: 20 22 11 23 Docket: KBG-RG-02530-2022 Judicial Centre: Regina IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: CAROL DROVER APPELLANT - and - AVENUE LIVING COMMUNITIES LTD. RESPONDENT Appearing: Carol Drover self-represented appellant (tenant) Gina Plesca agent for the respondent (landlord) Office of the Residential Tenancies no one appearing JUDGMENT MITCHELL J. NOVEMBER 23, 2022 A.

Background [ 1 ] Carol Drover [appellant] appeals pursuant to s. 72(1) of The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 [ Act ] against a decision of a hearing officer dated October 20, 2022 ( 2022 SKORT 2837 ) [ Decision ] following a hearing which took place the same day.

[2] The respondent/landlord, Avenue Living Communities Ltd. [respondent], had applied for possession of the premisesrented by the appellant pursuant to ss. 57 and 70(6) of the Act. The respondent alleged that the appellant owed the respondent rent arrearsin the amount of $1,750. As well, the respondent alleged that the appellant had not complied with a notice terminating her tenancy whichhad been properly served upon her. [3] At the outset of the hearing on October 20, 2022, Ms. Drover – described as Carol Gillespie in the documentation filedin the Office of Residential Tenancies – asked for an adjournment.

She alleged that the summons in a civil action had not been properlyserved upon her. The hearing officer after hearing submissions declined her adjournment request. [4] In the Decision, the hearing officer determined that the appellant had been properly served with the relevantdocumentation and had not presented a sufficient reason to adjourn the hearing. He ruled that it was “just and equitable” to proceed. “TheTenant”, he wrote, “had an opportunity to present evidence related to this claim but chose not to”: Decision at para. 8.

Consequently, hegranted the respondent’s application for a writ of possession and ordered the appellant to pay $1,625 to the respondent. See: Decision atpara. 17. [5] In her notice of appeal dated October 28, 2022, the appellant set out the following ground of appeal: [W]as denied time to obtain legal counsel. Even though I applied with several emails it took them over a day to reply to me. My rightswere not upheld by the ORT. [6] This appeal came before me in civil chambers on November 22, 2022. I heard oral submissions from both the appellantand Ms. Plesca, agent for the respondent.

At the conclusion of the hearing, I reserved my decision. [7] These reasons explain why I have concluded the appellant’s appeal must be dismissed. B. Relevant Legal Principles [8] In Knapp v ICR Commercial Real Estate, 2019 SKQB 59, the court reviewed the legal principles governing appealsunder the Act as follows at paras. 16 to 18:

Section 72 of the Act provides an aggrieved party the right to appeal a hearing officer’s decision to this Court, but only on aquestion of law or a question of jurisdiction. An appeal under s. 72 is neither a re-hearing of the application nor a re-weighing of theevidence presented at the original hearing. Rather, this Court’s jurisdiction under the Act is narrow. It is supervisory only,focusing principally on the impugned decision of the hearing officer and the evidence underlying it.

As a result, deference oughtto be accorded to the hearing officers’ factual findings and “to those aspects of [the hearing officers’] decisions which reflect anexercise of discretion”. See: Reich v Lohse (1994), (SK CA), 123 Sask R 114 (CA), at paras 18 and 20. 17. It is apparent that before an appeal under s. 72 can be adjudicated, two preliminary legal issues must be determined. First, does theappeal raise issues that may be characterized as questions of law or questions relating to the hearing officer’s jurisdiction? This questionmay be described as “the jurisdictional issue”.

If the answer to this question is “no”, then the appeal cannot proceed as this Court lacksjurisdiction to entertain it. 18. If, however, the answer to this question is “yes”, then the court must turn to the second preliminary legal issue, namely what is theappropriate standard of review to be applied on the appeal. This question may be described as the “standard of review issue”. [Emphasis added] [9] It is apparent that this Court has very limited power to overturn a decision of a hearing officer.

An appellant mustdemonstrate that the hearing officer, when deciding a case, committed an error of law or jurisdiction. An appeal under s. 72(1) of the Actis not a rehearing or a “do-over”. These, then, are the principles I must employ when deciding this appeal. C. Analysis [10] I have considered the appellant’s submissions presented on this appeal. I am satisfied they lack merit, and I would notgive effect to them. [11] Principally, the appellant’s complaint is that the hearing officer denied her due process by refusing to grant her requestfor an adjournment.

She states that a representative of the respondent served her with the summons in a civil matter on October 11, 2022,at 5:02 p.m. This did not give her sufficient time, she maintains, to prepare a response to the respondent’s application, let alone anadequate response. [12] The hearing officer at para. 3 of the Decision determined that the “Notice of Hearing was properly served”.

He notedthat the appellant was requesting the adjournment because she was gathering evidence “mainly regarding an injury she claims wassustained as a result of the Landlord’s negligence, and because she had engaged two lawyers to assist her. One was a personal injurylawyer while the other was a civil lawyer”: Decision at para 5. The hearing office then observed that evidence of this kind was notnecessary or relevant to the issues before him.

In any event, the appellant “[was] not barred from pursuing her own claim, be it throughthis office or through another court” regardless of what transpired in the application before him. See: Decision at para 6. [13] The hearing officer then addressed the appellant’s arguments that she had not been served properly with the notice ofhearing. He wrote at paras. 7 – 9 as follows: [7] The Tenant also claimed that she just received the hearing notice and did not have time to prepare. She initially claimed that she

received the hearing notice “four days ago”. I took this to mean October 16 and stated so, which the Tenant did not correct, and indicatedthat there was evidence on file that she was served on October 11 which is within the legislated requirements for proper service. TheTenant did not initially respond to this, but later stated that she was served on Tuesday. I asked her to clarify which Tuesday and she saidlast week, being October 11, which is what the Landlord’s evidence shows.

I asked the Tenant to clarify the discrepancy in dates, and shesaid that she was served “four business days ago”, which still does not reconcile the discrepancy. [8] I determined that it was just and equitable that the hearing proceed. The Tenant had an opportunity to present evidence related tothis claim but chose not to.

She was served within the required legislated time frame and chose not to make any sort of response until theday before the hearing, and her submission was only to request an adjournment. [9] The Tenant’s submissions were filled with such discrepancies and obfuscations as mentioned in paragraph 7. She claimed that shedid not initially submit evidence because she was afraid to counter the Landlord, then she claimed it was because she was only servedright before the hearing.

She then stated that she could not submit text messages into evidence because “the lawyer had them”, notexplaining how she lost access to them or why only a lawyer would have them. She made a point that the Landlord hid from me a $425payment made by her on September 7 but the rent ledger clearly indicates this payment. In fact, the Landlord further provided that theTenant made two separate $500 payments in October. The Tenant made reference to numerous text messages and videos that were not inevidence. [Emphasis in original.] [14] The decision by a tribunal as to whether to grant an adjournment is discretionary.

It must be made fairly, and inaccordance with the principles of natural justice. See, for example: Berger v Saskatchewan (Financial and Consumer AffairsAuthority), 2019 SKCA 89 at paras 17-28; Prassad v Canada (Minister of Employment and Immigration), (SCC),[1989] 1 SCR 560 at 568-9; and Pierre v Minister of Manpower and Immigration, (FCA), [1978] 2 FC 849 (FedCA) at 851. There is no presumption that anyone who seeks an adjournment is entitled to it.

See: Wagg v Canada, 2003 FCA 303 atparas 19-20, [2004] 1 FCR 206. [15] Here, the hearing officer considered the appellant’s arguments which she advanced to support her adjournment request.He noted that the issues for which the appellant had retained a lawyer did not relate to the issue before him, namely should the landlord’sapplication for a writ of possession be granted because of the tenant’s repeated failure to remain current with her rent payments. [16] During the hearing of this appeal, the appellant repeated that she only had “four business days” notice of the hearing, soshe was not properly served.

She also insisted that the notice of hearing was “shoved” under the door of her rental unit at 5:02 p.m. on October 11.

So, she argued, service was not effected until October 12th. (She did not point me to any statutory provision, rule or bylawwhich states that service of a document after 5:00 p.m. means service is effected the following day.) Even so, this was still eight days,and five business days before the formal hearing on October 20, 2022. [17] I have reviewed the Office of Residential Tenancies’ file, the Decision, as well as materials filed in this Court by theappellant the day prior to her appeal hearing.

While I might have granted the appellant’s request for an adjournment had I been thehearing officer, that is not the issue. The issue is whether the hearing officer erred in law by refusing to grant the appellant’sadjournment request in this case. [18] I conclude that he did not. This is not a case where the tenant was not properly served resulting in a new hearing, forexample. See: Sellers v Boardwalk REIT Properties, 2022 SKKB 234.

Nor is it a situation like that in Zelinski v Wolbaum, 2012 SKQB457, 408 Sask R 90 [Zelinski], where the tenant asks for an adjournment to respond to the landlord’s evidence in the middle of thehearing. The hearing officer refused this request, and his decision was upheld on appeal. See: Zelinski at paras 7-9. [19] Here the appellant had at least five business days to prepare a response, and eight days in total. She did not provide tothe hearing officer any reason, let alone a compelling one, why she would be prejudiced in responding to the landlord’s applicationshould an adjournment not be granted.

In my opinion, the hearing officer committed no error of law or jurisdiction when he decided toproceed. Consequently, I must conclude the hearing officer exercised his discretion appropriately when he refused to adjourn the hearingas requested to do so by the appellant. [20] Accordingly, for these reasons this appeal must be dismissed. J. G.G. MITCHELL