ANGELA GREEN v. TYLER ELDER, 2023 SKKB 75

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 75 Date: 2023 04 10 Docket: KBG-SA-01047-2022 Judicial Centre: Saskatoon IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: ANGELA GREEN and TYLER ELDER APPELLANTS - and - FRANKLIN ARTHURS RESPONDENT - and - DIRECTOR OF THE OFFICE OF RESIDENTIAL TENANCIES RESPONDENT Appearances: Angela Green for the self represented appellants Franklin Arthurs self represented respondent Raelynn Mechelse for the Office of Residential Tenancies _____________________________________________________________________ JUDGMENT ELSON J. April 10, 2023 ___________________________________________________________________________

Introduction [ 1 ] The appellants take this appeal from a decision of the Office of Residential Tenancies [ORT] which awarded damages to the respondent landlord following the termination of a tenancy in Saskatoon. The central issue in the appeal does not pertain to the merits of the case between the parties. Rather, it focuses on the ORT’s decision to deny the appellants’ request to adjourn the hearing of the respondent’s claim to a later date. The stated reason for the request was that the appellants were to be away on a trip to Jamaica when the hearing was to take place.

The decision to deny the adjournment was made by two Dispute Resolution Facilitators in advance of the scheduled hearing. [ 2 ] There is little doubt that the decision whether to grant an adjournment is a matter left to the discretion of the ORT – albeit discretion that must be exercised judicially. In this context, this judgment necessarily addresses two issues. The first issue pertains to the factors that must be considered in the exercise of this discretion.

The second issue calls for an assessment as to whether the ORT’s general or usual practice for the consideration of pre-hearing adjournment requests reflects an inappropriate restriction or fettering of its discretion. [ 3 ] For the reasons that follow, I am satisfied that, in the circumstances of this particular case, the appeal must be dismissed. Despite the outcome of the appeal, I am compelled to express my concerns about the way the ORT addressed the pre-hearing adjournment request.

Instead of an unfettered exercise of discretion, the Dispute Resolution Facilitators based their decisions almost exclusively on the ORT’s general practice. While I am satisfied that this amounts to a fettering of its discretion, I am also satisfied that, had the ORT properly exercised unfettered discretion, the appellants’ request would, in all probability, properly have been denied. Background [ 4 ] Before describing the relevant details, it must be noted that one of the appellants, Angela Green, deposed and filed an affidavit in support of this appeal.

The contents of the affidavit can be divided into two parts. The first part of the affidavit described facts related to the adjournment request. The second part described facts that purported to dispute the landlord’s claim for damages. [ 5 ] Although not challenged in this appeal, I must address the admissibility of Ms. Green’s affidavit. As a rule, affidavit evidence is inadmissible in statutory appeals, including appeals under s. 72 of The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 [ RTA ].

This rule, however, does not apply where a party alleges an absence of jurisdiction, such as a failure to observe the rules of natural justice or a breach of procedural fairness. It is not uncommon for evidence related to such allegations to be absent from the record on appeal, including a hearing officer’s decision. For this reason, affidavit evidence is not only admissible – it is frequently called for.

In support of this observation, I cite the judgments of this Court in Sinclair v North Prairie Developments Ltd. , 2020 SKQB 216 at paras 5 - 8 , 94 Admin LR (6th) 149 ; Starrpass Properties Inc. v Wolf , 2012 SKQB 243 at paras 6-7 , 398 Sask R 236 ; Williams v Elite Property Management Ltd. , 2012 SKQB 215 at para 17 , 397 Sask R 204 ; Donnelly v Dupuis , 2007 SKQB 481 , 308 Sask R 279 ; and Rich-Prop Investments Inc. v Andres , 2007 SKQB 18 , 291 Sask R 40 . [ 6 ] In the present case, I am satisfied that the first part of Ms.

Green’s affidavit, to the extent it addresses the circumstances related to the adjournment request, is properly before the Court. On the other hand, the second part of the affidavit, relating to the merits of the case, is inadmissible and cannot be considered. I will ignore it. [ 7 ] The hearing officer’s decision in this matter was rendered on October 6, 2022. According to that decision, the appellants were tenants in a tenancy agreement with the respondent landlord for a rental unit located at 1116 Avenue J South in Saskatoon.

The hearing officer found that the tenancy was in place between July 1, 2021 and June 1, 2022. [ 8 ] After the tenancy ended, the landlord applied for an order directing the tenants to pay damages amounting to $3,588.49. The ORT scheduled a hearing of this application for October 4, 2022. According to an unsigned letter that accompanied the ORT file when filed with the Court for this appeal, the landlord served the appellants with the notice of hearing on September 20, 2022. The date of service is not disputed. [ 9 ] Ms.

Green’s affidavit evidence about the circumstances of the adjournment request and its denial is also uncontradicted. It discloses that, on September 28, 2022, she emailed the ORT and requested an adjournment of the hearing, which she described as “a change of date” to any date after October 14, 2022. As referenced in the Introduction, the stated reasons for this request were that the appellants would be out of the country at the time the hearing was scheduled. To support the appellants’ request, Ms. Green attached a copy of the itinerary for the appellants’ trip.

The itinerary disclosed that the appellants were to depart Saskatoon on October 1, 2022 and not return until October 9, 2022, at the earliest. [ 10 ] A Dispute Resolution Facilitator with the ORT responded to this message on September 29, 2022, denying the request for the adjournment. The full text of her reply reads as follows: Good day, Thank you for your email regarding application 220855. Generally, the ORT will consider pre-hearing adjournment requests if proof of a direct time conflict is provided. While your attached proof does show flights, none of the flights listed are in direct time conflict.

At this time, your pre-hearing adjournment request is denied and the hearing set for application 220855 will be proceeding as scheduled on October 4, 2022 at 9:45am. You can appoint someone in Saskatchewan to appear on your behalf for the hearing. An adjournment request can also be made by your representative on the day of the hearing directly to the hearing officer, but it will be the hearing officer’s discretion as to whether they proceed or adjourn the hearing. If you have any questions, please contact the office by one of the methods listed below.

The message did not explain or define the meaning of a “direct time conflict”. While a definition would have been helpful, I can only presume that it meant a conflict that would not allow a party to participate in the hearing either in person or by telephone, such as the parties being in flight at the relevant time. [ 11 ] Ms. Green responded to this message the same day. The text of her response is as follows: Hello I AM NOT SURE WHAT DATE YOU READ BUT THE Date of DEPARTURE IS OCT 01… AND MY RETURN DATE IS OCT 09,2022 PLEASE HAVE ANOTHER LOOK AT MY PAPERS!!

My hearing date is OCT 04 Oct 09 comes after Oct 04th… Please advise [ 12 ] A second Dispute Resolution Facilitator replied to the response, also on September 29, 2022. Again, the adjournment request was denied. The stated reasons for the denial were substantially the same as in the previous email message, again without a definition of a “direct time conflict”. The substantive paragraph in this message reads as follows: The ORT usually only considers pre-hearing adjournment requested in the event of a direct time conflict.

Given that none of your flights directly conflict with the scheduled hearing time (October 4 th at 9:45 am) your pre-hearing adjournment request has not been granted at this time. You may wish to appoint someone to appear on your behalf. Your representative would also be able to request an adjournment at the time of the hearing. It would then be up to the hearing officer’s discretion as to whether or not your request is granted.

If you do choose to appoint someone please ensure to call the number listed on the hearing notice to provide a phone number they can be reached at for the hearing. [ 13 ] At this point, it must be noted that some additional facts came to light after this appeal was heard. Specifically, the Court learned that the appellants booked their trip to Jamaica on September 28, 2022, after they had received notice of the hearing. For reasons not disclosed to the Court, they did not request the adjournment before booking their travel arrangements. Law Purpose and Nature of ORT Hearings [ 14 ]

Part VI of the RTA obliges the ORT to adjudicate disputes between landlords and tenants. For the purposes of this appeal, ss. 73 and 75 of the RTA deserve mention.

Section 73 describes the appointment of hearing officers to adjudicate the disputes. It also sets out certain powers provided to them, including the power to adjourn hearings, decide disputes in the absence of a party and rehear matters in specific circumstances.

Section 75 of the RTA stipulates that the hearings are not governed by the rules of evidence. As such, the hearing officer may admit any testimony or record that the hearing officer considers to be: (1) credible and trustworthy; and (2) relevant to the dispute. Sections 73 and 75 read as follows: 73(1) The Lieutenant Governor in Council may appoint one or more persons as hearing officers for the purposes of establishing a panel of hearing officers to hear matters that may be the subject of an order pursuant to this Act.

(2) A hearing officer has: (

a) the powers conferred on a commission by sections 11, 15 and 25 of The Public Inquiries Act, 2013 for the purposes of any hearing or other proceeding pursuant to this Act; and (

b) any other prescribed powers.

(3) A hearing officer may adjourn a hearing: (

a) from time to time and for any period that the hearing officer considers appropriate; and (

b) by any means, including by letter or in electronic form.

(4) Notwithstanding that a person who is directly affected by a hearing is neither present nor represented at the hearing, if notice of the hearing is required to be given and has been given to the person, the hearing officer may: (

a) proceed with the hearing; and (

b) make any decision as though that person were present.

(5) Notwithstanding subsection (4), a hearing officer may, on application made by an affected person, rehear an application when: (

a) an order has been made without hearing from the affected person; or (

b) the affected person can establish that he or she did not receive notice of the hearing.

(6) If a hearing officer rehears an application pursuant to subsection (5), the hearing officer may rescind any order made with respect to the application before the rehearing. ….

75. A hearing officer may admit as evidence, whether or not it would be admissible under the laws of evidence, any oral or writtentestimony or any record or thing that the hearing officer considers to be: (

a) credible and trustworthy; and (

b) relevant to the dispute. [Emphasis added] [15] Essentially, the scheme for hearings under the RTA involves a rather

summary and accessible decision-makingprocess, unencumbered with the trappings of court procedures, the rules of evidence or the need for legal counsel. Although nowgoverned by a different statute, the scheme remains much as it existed under the former statute, The Residential Tenancies Act, RSS1978, c R-22 (rep). The nature of that scheme was discussed in Sanderson v Sasknative Rentals Inc. (1999), (SKKB), 176 Sask R 212 (QB).

There, Barclay J. described the scheme’s simplicity and informality at paras. 5-6: 5 The purpose of the Act is to deal with the rights and responsibilities of landlords and tenants in residential tenancies. The Act alsosets up an enforcement regime that is meant to avoid the usual burdens, both procedural and financial, of court proceedings. TheRentalsman Commission is charged with the responsibility to adjudicate disputes between landlords and tenants.

The Act is designed toprovide an inexpensive mechanism to resolve landlord-tenant disputes in a relatively time efficient and informal manner. 6 The Act also represents a legislative recognition of the need to address a power imbalance between landlords and tenants, to secure adegree of security of tenure for tenants, and to ensure that the cost of litigation is not a bar to the vindication of the legal rights granted bythe Act. The substantive legal matters that arise in residential tenancies are relatively narrow and straightforward. The dispute mechanismset out in the Act is simple and informal.

The Act is designed to provide access to justice without the need for legal representation. [Emphasis added] Rules of Procedural Fairness [16] As

summary, simple and informal as the ORT hearing process is designed to be, the potential ramifications of ahearing officer’s decision can be significant. Accordingly, and despite the informality, the rules of procedural fairness still apply to ORThearings. In this

section of the judgment, I will address the nature of those rules. [17] The common law principles of procedural fairness in administrative law has an interesting and evolving history,largely generated by the growth of the regulatory state. See Grant Huscroft, “From Natural Justice to Fairness: Thresholds, Content andthe Role of Judicial Review” in Colleen M. Flood & Lorne Sossin, Administrative Law in Context, 2d ed (Toronto: Emond MontgomeryPublications 2013) at 147.

The hallmark Supreme Court of Canada authorities in this evolution include Nicholson v Haldimand-NorfolkRegional Police Commissioners, (SCC), [1979] 1 SCR 311; Knight v Indian Head School Division No. 19, (SCC), [1990] 1 SCR 653 and Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR817 [Baker]. [18] Of these authorities, the judgment in Baker stands out and is the most frequently cited.

At paras. 23-27,L’Heureux-Dubé J. reviewed the relevant jurisprudence and listed five non-exhaustive factors that are to assist courts in determining thedegree of procedural fairness owed by a public body to someone affected by its decisions. In Oberg v Saskatchewan Board of Educationof the South East Cornerstone School Division No. 209, 2020 SKQB 96, McCreary J. (as she then was) concisely summarized the Bakerfactors at para. 21: 21 … (

a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required; (

b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections arerequired when no appeal procedure is provided in the statute or when the decision will finally determine the issue; (

c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringentthe procedural protections; (

d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policy thepublic body has in place respecting processes for decision-making; and (

e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose itsown procedures, or when the body has expertise in determining what procedures are appropriate. [19] This Court has held that, having regard to the Baker factors, ORT proceedings are subject to “a high level ofprocedural fairness” for all parties who participate in them. See Knapp v ICR Commercial Real Estate, 2019 SKQB 59, 58 Admin LR(6th) 205; Bida v BLSBEM Holdings Ltd., 2019 SKQB 323; and Fiddler v Provost, 2022 SKKB 263.

Denial of Adjournment as a Breach of Procedural Fairness [20] The denial of an adjournment can amount to a breach of a public body’s common law duty of proceduralfairness. This is not to say that administrative bodies must grant adjournment requests as a matter of right. There is no absolute right to anadjournment at common law. The question whether an adjournment request should be granted is a matter of a tribunal’s discretion, albeit

discretion that must be exercised judicially and in accordance with the principles of natural justice and procedural fairness. [21] Various factors come into play when a tribunal, or a court, is faced with an adjournment request. In the case of arequest to adjourn the trial of a civil action in a superior court, the decision in Lameman v Alberta, 2011 ABQB 40, 51 Alta LR (5th) 117,provides helpful guidance. There Yamauchi J. set out 11 non-exhaustive factors a trial judge should consider in deciding whether to grantthe adjournment.

Of these factors, I find six of them would similarly apply to administrative proceedings.

Described in languageparticular to administrative proceedings, these factors are: a. the nature of the tribunal’s process and its obligation to decide the case on its merits and make a just determination of the matters indispute; b. the prejudice caused to a party by granting or refusing the adjournment; c. the applicant’s explanation for the inability to proceed on the scheduled date; d. the length of the adjournment requested and any resulting disruption; e. the history of the proceedings, including other adjournments and delays as well as which party caused them; and f. whether the adjournment is found merely to be an attempt to delay proceedings. [22] In the pre-Baker judgment of Prassad v Canada (Minister of Employment and Immigration), (SCC), [1989] 1 SCR 560, the Supreme Court of Canada addressed similar considerations.

In that case, the applicant re-entered Canada afew months after her deportation. She did so without obtaining the written consent of the minister. The applicant was subsequentlyarrested and faced another deportation proceeding. That proceeding was initially adjourned to allow the applicant’s counsel time toprepare. During that adjournment, the applicant applied to the minister for a permit, under s. 37 of the then applicable statute, whichwould authorize her to remain in Canada. She also applied for a regulation exemption from the Governor in Council, which would permither to establish permanent residence.

Based on these applications, the applicant sought further adjournment of the deportation proceedingto allow the intervening applications to be considered. The adjudicator refused the request and proceeded with the inquiry, whichresulted in another deportation order. [23] The applicant was unsuccessful in her request for review to the Federal Court of Appeal. Subsequently, herappeal to the Supreme Court of Canada also failed. In dismissing the appeal, Sopinka J., who wrote the majority judgment, concludedthat the adjudicator’s discretion had not been improperly exercised.

In this regard, he wrote the following at p. 578: I conclude that an adjudicator acting pursuant to s. 27(3) of the Act is neither bound to accede to a request for an adjournment to enablean application under s. 37 to be brought, nor is he or she required to refuse it. Rather, the adjudicator has a discretion.

In somecircumstances, an adjournment may well be granted to enable such an application; in other circumstances, it may properly be refused.While the adjudicator must be cognizant that a “full and proper inquiry” be held, the adjudicator must also ensure that the statutory dutyto hold an inquiry is fulfilled. As Wydrzynski, op cit., notes at p. 266: Above all, there is a need to proceed expeditiously, and adjournments should not be viewed as a method to interminably delay theinquiry.

The adjudicator might consider such factors as the number of adjournments already granted and the length of time for which anadjournment is sought in exercising his or her discretion to adjourn. Where an adjournment is requested in order that an application unders. 37 might be pursued, the adjudicator might also consider the opportunity available to the subject of the inquiry to apply to the ministerprior to the request for an adjournment.

In the present appeal, the appellant could have applied at any time between the date of herremoval from Canada on 6th June 1984 and the recommencement of the inquiry on 21st November 1984; she did not send a letter to theminister’s office until 16th November 1984. [Emphasis added] [24] For a final comment on this issue, I turn to Guy Régimbald, Canadian Administrative Law, 2d ed (Markham,ON: LexisNexis Canada Inc., 2015). At page 321, the author identifies the considerations that would apply in the judicial review of atribunal’s decision not to grant an adjournment.

In this respect, he wrote the following: The decision to grant or to refuse an adjournment is subject to review if it is apparent, in the circumstances, that the discretion was notproperly exercised and was unreasonable. Hence, if the refusal to grant an adjournment may result in a breach of procedural fairness, thedecision might be subject to judicial review. The overarching concern when making a decision to grant an adjournment is whether theindividual has had a reasonable opportunity to present his case.

Thus, an adjournment may be granted to permit the individual to obtainthe services of an interpreter, to produce evidence and witnesses, or to retain and instruct counsel. Other types of adjournments that maybe requested include adjournments pending judicial review of another incidental decision made in the same proceeding and pendinglegislative changes. However, the refusal to grant an adjournment will not breach procedural fairness where the applicant had ample timeto instruct counsel but failed to do so.

In determining whether an adjournment should be granted, the decision maker must balance the interests of the individual with those ofthe board and the public. For some boards, an adjournment may be a major inconvenience, but for others a simple delay. Otherconsiderations include the reasons for the adjournment, the impact of a refusal or a grant to each party, the risk of prejudice to anyopponent, the interest of justice in ensuring the efficient dispatch of business and what is hoped to be achieved with the adjournment.

Theoverwhelming concern is to determine how necessary the adjournment is for a fair decision-making process. Therefore, common senseand fairness to the parties must prevail in determining whether to grant or refuse an adjournment. [Emphasis added]

Analysis [ 25 ] The takeaway from the above observations, insofar as they pertain to proceedings under the RTA , is reasonably clear. Decisions to grant or refuse adjournment requests, whether sought before, at the start, or in middle of a residential tenancy hearing, fall within the judicial discretion of the ORT. The central consideration in the exercise of such discretion is the need to strike a balance between the ORT’s responsibility to adjudicate the dispute and the rights of parties to present their cases before a hearing officer. At the risk of repeating some of the earlier discussion, a non-exhaustive list of the factors that will inform this central consideration include: a. the

summary and informal nature of the hearing process and the hearing officer’s obligation to make a just decision on its merits; b. the prejudice caused to any party by granting or refusing the adjournment; c. the applicant’s reasons for the inability to proceed on the scheduled date; d. the length of the adjournment requested; e. the history of the proceeding, including other adjournments and delays as well as which party caused them; and f. whether the adjournment is found merely to be an attempt to delay proceedings. [ 26 ] It is also noteworthy that, under s. 73(3) of the RTA , the power to adjourn a hearing ostensibly rests with the hearing officer.

That said, I do not discern this as exclusive jurisdiction, nor do I find that this provision precludes the ORT from considering a pre-hearing adjournment request. Indeed, where a pre-hearing adjournment request is made, it must be decided through the same exercise of discretion as any other adjournment request. [ 27 ] In the present case, it is apparent that the Dispute Resolution Facilitators applied the ORT’s general and usual practice, as opposed to judicial discretion. They limited their decision to whether Ms. Green disclosed evidence of a “direct time conflict”.

They did not consider any other contextual factors, some of which would have militated against the adjournment request. In short, by limiting their inquiry to the presence, or not, of a direct time conflict, it could fairly be said that they fettered the discretion the ORT was obliged to apply. [ 28 ] Further, this fettered discretion is not lessened by telling the appellants that they had an opportunity to ask for an adjournment on the scheduled date of the hearing.

As I have already indicated, I am more than satisfied that all adjournment requests, irrespective of when they are made, require the same level of discretion. [ 29 ] I should make it clear that my finding that the ORT fettered its discretion should not be seen as a conceptual rejection of a usual practice or policy for pre-hearing adjournment requests. Indeed, I accept that there may be merit for public entities to adopt standardized practices or policies to address certain issues, including pre-hearing adjournment requests.

Having said this, public entities must take care to ensure that standardized practices or policies are not applied in such a way that they displace the exercise of discretion when it is called for. [ 30 ] Despite the fettered discretion in this case, I am satisfied that, if the ORT had properly exercised unfettered discretion, whether through a decision of a Dispute Resolution Facilitator or a hearing officer, there was a high probability, if not a certainty, that the appellants’ adjournment request would have been refused.

The appellants’ decision to book their travel after receiving notice of the scheduled hearing, without first attaining an adjournment, was ill-advised. Implicit in this action is the mistaken belief that their request would be granted as of right. That is not the case. I can candidly say that, if I was in the position to hear the adjournment request and became aware of these facts, I would have refused the request. I am satisfied that a hearing officer or Dispute Resolution Facilitator, similarly informed, would have made the same decision.

It follows, in my view, that no meaningful purpose would be served in allowing the appeal and ordering a new hearing. Had the appellants’ travel arrangements been made before notice of the hearing was served, my decision would likely have been different. Conclusion [ 31 ] In the result, the appellants’ appeal is dismissed. J. R.W. ELSON