IAN JAMES APPELLANT - v. -, 2023 SKKB 135

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 135 Date: 2023 06 26 Docket: KBG-SA-00475-2023 Judicial Centre: Saskatoon IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: IAN JAMES APPELLANT - and - SASKATOON HOUSING AUTHORITY RESPONDENT - and - THE OFFICE OF THE RESIDENTIAL TENANCIES RESPONDENT Counsel: Nicholas R.S. Blenkinsop for the appellant Jay Kachuk for the respondent, Saskatoon Housing Authority ___________________________________________________________________________ JUDGMENT CURRIE J. June 26, 2023 ___________________________________________________________________________

[ 1 ] Ian James appeals from an order for possession of his rental unit. The order ( 2023 SKORT 1120 ) was made by a hearing officer under The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 , in favour of Mr. James’ landlord, Saskatoon Housing Authority (“SHA”). A. Issues [ 2 ] The following issues are set out in Mr. James’ notice of appeal, and were argued at the hearing of the appeal: (

a) whether the hearing officer erred in law by failing to consider or apply the legal test that is set out in s. 70(6) of the Act . (

b) whether the hearing officer erred in law or procedural fairness by failing to provide adequate reasons. [ 3 ] At the appeal hearing Mr. James abandoned a third ground of appeal that was set out in his notice of appeal. B. Standard of Review [ 4 ] This court is empowered to consider an appeal from a decision of a hearing officer on a question of law or of jurisdiction: s. 72(1) of the Act . [ 5 ] Both issues here may be characterized as questions of law.

The first issue asks whether the hearing officer complied with the legal requirement, in s. 70(6), that he consider whether making an order for possession would be just and equitable. The second issue asks whether the hearing officer adequately explained his decision, a requirement that is established as a legal requirement: R v Millie , 2021 SKQB 69 at para 69 . [ 6 ] A question of law attracts a correctness standard of review, as established in numerous decisions, including R v Macfie , 2023 SKCA 39 at para 30 and Larocque v Yahoo! Inc. , 2023 SKCA 63 at para 37 . C.

Affidavit Evidence on the Appeal [ 7 ] On this appeal Mr. James has filed an affidavit in which he describes oral evidence that was adduced before the hearing officer. As was the case in Labre v ICR Property Management Inc. , 2022 SKKB 256 at paras 11-21 , I conclude that this appeal falls within an exception to the general rule that precludes the consideration of additional affidavit evidence on an appeal. In order for me to determine whether the hearing officer complied with s. 70(6), in light of Mr. James’ arguments I must know what evidence was before the hearing officer. Admitting Mr.

James’ uncontroverted affidavit into evidence on this appeal gives me that knowledge. [ 8 ] Therefore, Mr. James’ affidavit dated May 9, 2023 is admissible on this appeal. Most relevant to the issues here are paragraphs 12 and 13 of that affidavit : 12. The Landlord gave evidence first. Their evidence included that: a. There were problems with my rent payments b. I had recent paid rent for March but was outstanding for April c. The amount of rent charged by the Landlord depends on the income of the tenant and monthly rent can range up to $900 per month for a single person d.

Every year, the landlord works to obtain updated financial information from tenants to review the amount of rent charged and adjust it according to any changes in the tenants financial situation e. They had provided me with documents relating to renewing my lease and updating my financial information for the purpose of determining my monthly rent but that these had not been completed and returned to them, and f. Despite not having received the lease renewal and financial disclosure documents, the Landlord had continued to charge me the same monthly rent of $366 and had not increase my monthly rent. 13.

During the appearance before the hearing officer, I testified to the following:

a. I had been in the unit for approximately a year b. I was a good tenant and got along well with other tenants in the building c. This was the first time I had had to deal with a lease renewal and updating financial information d. I would be happy to complete the lease renewal and financial information documents as soon as possible and get them back to the Landlord e. I was on a pension f. I was confused by the different documents that I had been given and did not understand the amount of arrears that I still owed g. I had paid March rent before the hearing h.

I believe that I testified to having paid more than $700 at that time i. I understood that I had also paid April rent j. I thought that the rent payment I had made at the end of March had resolved outstanding arrears owed to the Landlord and was surprised to hear that I still owed rent for April k. I was committed to pay all that I owed to the Landlord for April and on an ongoing basis, and l. I was not in a financial position to pay April rent right away but would be able pay April rent within a week of the hearing given the timing of when I would receive my next pension cheque. D.

Consideration or Application of the Section 70(6) Test 1. Overview [ 9 ] This issue arises from the provisions of s. 70(6) of the Act : 70

(6) After holding a hearing pursuant to this section, a hearing officer may make any order the hearing officer considers just and equitable in the circumstances , including all or any of the following: (

a) an order directing any person found contravening or failing to comply with a tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (

b) an order requiring a tenant to pay to the director all or any part of any instalment of rent otherwise payable to the landlord; (

c) an order requiring the payment of damages, including the payment of any arrears of rent payable to the landlord; (

d) subject to

section 68, an order granting possession of a rental unit; (

e) an order determining the disposition of a security deposit and any accrued interest pursuant to

section 33; (

f) an order determining the validity of a notice of rent increase pursuant to sections 53.1 or 54. [Emphasis added] [ 10 ] In his written decision at paragraph 10, the hearing officer expressly referred to his obligation, under s. 70(6), to consider whether an order for possession was just and equitable. Mr. James asserts that, notwithstanding that reference, the hearing officer did not actually engage in that consideration. He argues that one may reach this conclusion because: (

a) the hearing officer did not refer to parts of the evidence in his reasons; and (

b) if the hearing officer had considered the evidence, he necessarily would have concluded that making an order for possession was not just and equitable. [ 11 ] The discretionary nature of a hearing officer’s decision, and the legal effect of s. 70(6) on the making of that decision, were discussed by Justice Barrington-Foote in Hart v Hunchak , 2015 SKQB 117 at paras 12-13 : [ 12 ] As is noted above, s. 57 of the Act [ SS 2006, c R-22.0001 ] provides that a landlord may end a tenancy by serving a notice to terminate if rent is unpaid for 15 days after it is due.

That does not mean, however, that the landlord is automatically entitled to possession of the premises. The landlord must apply pursuant to s. 57(4) of the Act for an order for possession under s. 70, which provides as follows: 70

(6) After holding a hearing pursuant to this section, a hearing officer may make any order the hearing officer considers just and equitable in the circumstances, including all or any of the following:

... (

d) subject to

section 68, an order granting possession of a rental unit;... [13] The hearing officer must accordingly exercise his or her discretion. She or he must decide not only whether rent was overduemore than 15 days, but whether it is just and equitable to issue an order of possession. … [Emphasis added] [12] In Williams v Elite Property Management Ltd., 2012 SKQB 215, 397 Sask R 204 at para 28, Justice Danyliukdiscussed the nature of the test of “just and equitable”: [28] Hearing officers have been given significant discretion to invoke equitable principles and considerations.

Armed with suchjurisdiction, it is incumbent upon hearing officers both to consider whether to use it and, if so, to use it in a judicial fashion. Gerein J. sofound in Schoonover v. Caswell (1997), (SK KB), 154 Sask.R. 186, [1997] S.J. No. 164 (Q.B.) (QL). Further, thisCourt has specifically found that a hearing officer should not take "a more legalistic approach than is warranted". The use of the word"equitable" in the Act "means that the hearing officer is able to do what is just, fair and right, in consideration of the facts andcircumstances of the individual case": Donnelly v.

Dupuis [2007 SKQB 481, 308 Sask R 279]. … [Emphasis added] [13] A hearing officer’s decision, as to whether an order for possession is just and equitable, is a discretionarydecision. Mr. James does not argue that the hearing officer exercised his discretion unreasonably. Rather, Mr. James argues that thehearing officer did not exercise his discretion at all. That is the essence of Mr. James’ assertion that the hearing officer failed to consideror apply the s. 70(6) legal test of whether ordering possession would be just and equitable. 2.

Hearing Officer’s Reasons [14] In considering whether to make an order for possession, the hearing officer concluded that there was no fault inthe circumstances on the part of SHA. He noted, in fact, that SHA made some exceptions for Mr. James’ benefit, such as keeping therent low and allowing Mr. James time to provide the required financial information. [15] The hearing officer concluded that the circumstances leading to there being arrears of rent arose from Mr. Jamesnot looking after his own interests. Mr. James did not provide the financial information. Mr. James did not pay his rent. When Mr.

Jameswas confused, he did not seek out help or explanation. In these circumstances the hearing officer found nothing unjust or inequitable inthe prospect of making an order for possession. 3. Hearing Officer’s Reference to the Evidence [16] As I have said, Mr. James’ first point in this regard is that the hearing officer did not refer, in his writtendecision, to all of the evidence that was before him. Some of that evidence, Mr.

James argues, formed an essential part of what would bea true consideration and application of the s. 70(6) test. [17] A written decision, though, does not have to set out every item of evidence that was before the tribunal. JusticeGunn said in Machiskinic v Chen, 2011 SKQB 39, 368 Sask R 169 at para 43: [43] The Hearing Officer is not required to refer to all of the evidence bearing upon facts in controversy and the fact that he did not referto all the evidence does not lead inexorably to the conclusion that evidence was overlooked. [18] In so saying, Justice Gunn quoted the remarks of Justice Cameron in P.S.S.

Professional Salon Services Inc. vSaskatchewan (Human Rights Commission), 2007 SKCA 149, 302 Sask R 161 at para 86: [86] So far as the duty to give reasons extends to setting forth the facts, the tribunal was not required, just as judges are not required, torefer to all of the evidence bearing upon a fact in controversy: Woolaston v. Minister of Manpower and Immigration, [(SCC), [1973] S.C.R. 102]. The mere failure to mention a particular portion of the evidence, then, does not in itself amount to disregardor oversight.

That said, it is commonplace among judicial and quasi-judicial decision-makers, whether explicitly or implicitly required togive reasons setting forth the facts and explaining the basis for their decisions, to refer to those portions of the evidence havingsignificant probative value in relation to a fact in controversy, particularly those portions with opposing force or weight, for it is herewhere the case on the facts rises or falls on balance. [19] In the matter before me, in his decision the hearing officer expressly referred to the following evidence (which Icross-reference with evidence described in Mr.

James’ affidavit): - Paragraph 6: After receiving a demand from SHA, Mr. James paid the March rent (affidavit paragraph 12(

b) and 13(g)); - Paragraph 6: The amount that Mr. James paid in March was $707 (affidavit paragraph 13(h)); - Paragraphs 7 and 9: Mr. James did not provide to SHA the requested financial information, which SHA said it asked of him“starting in November” (affidavit paragraph 12(

d) and (e)); - Paragraph 7: Even though Mr. James had not provided the requested financial information, SHA kept Mr. James’ monthly rentat $366 instead of, as was its typical practice, raising the rent to the maximum of over $900 (affidavit paragraph 12(

c) and (f)); - Paragraph 8: Mr. James had been SHA’s tenant for over a year (affidavit paragraph 13(a));

- Paragraph 8: Mr. James has developed good friendships in the building (affidavit paragraph 13(b)); - Paragraph 8: Mr. James was confused when he received notice of the hearing (affidavit paragraph 13(f), (

i) and (j)); - Paragraph 8: Mr. James did not pay the outstanding rent because he had some confusion over what was owing, due to an overpayment from a previous month (affidavit paragraph 13(f), (g), (i), (j)); and - Paragraph 8: Mr. James is willing to settle any outstanding arrears, including the April rent (affidavit paragraph 13(k)). [ 20 ] The hearing officer also ruled at paragraphs 6 and 12 that the April rent was outstanding in the amount of $366. He directed that his order for possession be deferred to May 1, so that Mr. James could stay in the rental unit until May 1 – in light of Mr.

James’ plan to pay the April rent (affidavit paragraph 13(l)). [ 21 ] After accounting for the above, I find that the evidence described by Mr. James in his affidavit that was not expressly referred to by the hearing officer is: - There were problems with Mr. James’ rent payments (affidavit paragraph 12(a)); - This was the first time Mr. James had had to deal with a lease renewal and updating financial information (affidavit paragraph 13(c)); - Mr.

James would be happy to complete the lease renewal and financial information documents as soon as possible and get them back to the Landlord (affidavit paragraph 13(d)); and - Mr. James was on a pension (affidavit paragraph 13(e)). [ 22 ] Mr. James also says that the hearing officer failed to refer to or consider the fact that Mr. James is living on a limited pension income that was unlikely to vary, but there is no evidence before me indicating that such information was before the hearing officer. The evidence before the hearing officer simply was that Mr. James was on a pension. [ 23 ] Mr.

James asserts also that the hearing officer failed to refer to or take into consideration SHA’s failure to step in and help Mr. James when Mr. James did not provide the required financial information or pay his rent. That is, Mr. James argues that a landlord owes a duty to its tenant to work with and support the tenant if the tenant is not looking after his or her own interests. A landlord, says Mr. James, may not simply rely on its rights under contract and statute.

Rather, he says, a landlord must seek ways to help the tenant, perhaps inquiring as to why the tenant is not responding, perhaps helping the tenant to work through possible options for that tenant’s living circumstances. [ 24 ] In part, Mr. James supports this assertion by reference to the provisions of The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 . Specifically, he refers to the duty to accommodate that has arisen in some decisions interpreting human rights legislation. [ 25 ] The duty of accommodation suggested by Mr. James can arise only from the Code .

In the circumstances of this matter, however, the Code has no application. The Code does apply to some situations involving rental accommodation, as referred to in s. 11, but those provisions (as with all of the provisions of the Code ) apply only where a “prohibited ground” is involved. [ 26 ] The prohibited grounds that are covered by the Code are set out in s. 2(1). None of the prohibited grounds applies to Mr. James’ dealings with SHA. Accordingly, the Code does not apply to this matter, and any duty of accommodation that might arise from the Code does not apply to this matter. [ 27 ] The Code aside, Mr.

James also argues that a landlord’s duty to work with and support a tenant exists as a general principle of law. I find, however, no basis in law for the existence of such a duty. Nor does any equitable or legal principle demand that such a duty be created by the courts. [ 28 ] Mr. James argues that such a duty must exist, though, at least for this landlord, because SHA exists expressly for the purpose of providing subsidized housing. There is, however, no evidence before me as to this or any other purpose or goal of SHA.

Nothing in the evidence provides a basis for finding that there exists a duty on the part of SHA to work with and support its tenants to remedy the tenants’ failure to look after their own interests. [ 29 ] I do not accept, then, the argument that there was a failing in the hearing officer not considering the fact that SHA did not reach out to Mr. James to try to help him look after his own interests. [ 30 ] That leaves the items referred to above at paragraph 21.

In considering whether there is significance in the hearing officer not having referred to those items of evidence, I consider his explanation of his decision as summarized above at paragraphs 14-15. [ 31 ] Mr. James asserts that the only conclusion to be drawn from the evidence is that making an order for possession would not be just and equitable, so that I must conclude that the hearing officer did not consider all of the evidence. In making this assertion, Mr. James effectively invites me to review the hearing officer’s discretionary decision. It is difficult to see how I can make the determination that Mr.

James asks me to make without reviewing whether the hearing officer’s decision as to “just and equitable” was correct. [ 32 ] In any event, I do not adopt Mr. James’ assertion that the only conclusion to be drawn from the evidence is that making an order for possession would not be just and equitable, so that I must conclude that the hearing officer did not consider all of the evidence. When I read the hearing officer’s decision with reference to all of the evidence, I find that his decision is consistent with the

evidence. What he decided was among the decisions that were available to him. This is so whether the hearing officer took into account the evidence referred to in paragraph 21 above or not. That evidence was not significant enough to affect the decision that the hearing officer made on the basis of the other evidence. [ 33 ] Having said that, I do not conclude that the hearing officer failed to consider the evidence referred to in paragraph 21 above. Rather, that evidence did not form a sufficiently determinative part of the hearing officer’s analysis to require express reference, as discussed in P.S.S.

Professional Salon Services . [ 34 ] Therefore, I do not conclude that if the hearing officer had considered all of the evidence he necessarily would have concluded that making an order for possession was not just and equitable. I do not conclude that the hearing officer failed to exercise his discretion under s. 70(6). I conclude, rather, that the hearing officer took into account all of the evidence, and that he engaged in the consideration and application of the “just and equitable” test in deciding to order possession.

The hearing officer’s approach to the test in s. 70(6) is not shown to have been incorrect. [ 35 ] No error in law has been identified in this regard. E. Adequacy of Reasons [ 36 ] A hearing officer’s obligation to provide adequate reasons was described by Justice Danyliuk in Olson v Hergott , 2021 SKQB 11 at para 23 : [23] Every hearing or trial is different. I would not presume to dictate to hearing officers how they should structure their decisions. I fully appreciate these are meant to be

summary, relatively informal hearings. But in my respectful view there must be some basic observance of proper procedure. The evidence should be reviewed in a decision and, in particular, any meaningful conflicts in the evidence set out so same can be reviewed and rationalized in the analysis portion of the decision. At a minimum, documents submitted should be marked as exhibits and perhaps listed in the decision, or at least the central documents remarked upon. The key, however, is to explain. Explain why the decision was made as it was. A bare conclusion is not enough.

If someone is not believed, that person should know why he or she was not believed. [Emphasis added] [ 37 ] Here, as I have reviewed above, the hearing officer provided the required explanation. A reader of his decision acquires an understanding of what he decided, why he so decided, and the circumstances that he took into account in doing so. [ 38 ] No error in law or of procedural fairness is established in this regard. F. Conclusion [ 39 ] The hearing officer is not shown to have made an error in law or of jurisdiction. For this reason, the appeal is dismissed. ________________________________ J. G.M. CURRIE