ROZEENA BABAR Appellant - v. -, 2022 SKKB 267

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 267 Date: 2022 12 12 Docket: KBG-SA-01152-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE MATTER OF s. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: ROZEENA BABAR Appellant - and - JANNA KRISMAR Respondent - and - THE OFFICE OF RESIDENTIAL TENANCIES Respondent Appearances: Rana Babar Seif for Rozeena Babar Robert Krismar for Janna Krismar no one appearing for the Office of Residential Tenancies ___________________________________________________________________________ JUDGMENT SCHERMAN J.

December 12, 2022 ___________________________________________________________________________ [ 1 ] The appellant, Rozeena Babar, appeals from the Hearing Officer’s decision ( Babar v Krismar , 2022 SKORT 3006 , stating that the question of law in issue is whether the Hearing Officer, Gord Mayer, dismissed her claim against the tenant Janna Krismar on a basis that was not valid. [ 2 ] At the hearing of the appeal, Ms. Babar’s spouse, Mr.

Seif, took the position that the Hearing Officer’s conclusion that, pursuant to s. 71.1 of The Residential Tenancies Act, 2006, SS 2006, c R-22.0001 [ Act ], “an application for an order pursuant to this Act must be made within 1 year after the date of the act or omission giving rise to the claim” was an error in law. It is Ms. Babar’s position that at the time her claim was made, there was a two-year time within which a claim could be made. [ 3 ]

Section 71.1 of the Act reads as follows: Time limit for applications 71.1 Except as otherwise provided in this Act , an application for an order pursuant to this Act must be made within 1 year after the date of the act or omission giving rise to the claim. [ 4 ] This provision was added to the Act in an amendment made by The Residential Tenancies Amendment Act, 2021 , SS 2021, c 26 , assented to May 13, 2021. [ 5 ] Mr. Mayer found as a fact that the claim was for damages arising under a tenancy that ended on May 4, 2020. Mr. Seif acknowledge that this factual finding was correct.

Therefore, it follows that the claim for damages was based on acts or omissions that occurred on or before May 4, 2020. This being so, the claim made was made more than one year after the act or omission giving rise to the claim.

[6] The application or claim of Ms. Babar was initially filed on March 3, 2022. This is more than one year afterthe acts or omissions on which her claim is based. Nonetheless, based upon a document Mr. Seif obtained from the internet, it was hisargument that, at the time the claim was filed, the permissible period for filing a claim was two years and, therefore, it was wrong in lawfor Mr.

Mayer to dismiss the claim. [7] It is my conclusion that a practice of applying a two-year limitation (if there was such a practice) was based onthe general two-year limitation period provided for in The Limitations Act, SS 2004, c L-16.1. However, as a matter of proper statutoryinterpretation, limitation periods in specific legislation prevail over general limitation periods set forth in The Limitations Act. [8] When originally passed, the Act did not contain any provision which stipulated the time within which a claimby a landlord or tenant could be brought.

Section 71.1 established a one-year time limit. Since the Act did not previously specify alimitation period for bringing a claim, I conclude that the Legislature chose, in its 2021 amendments to the Act, to declare a one-yearperiod within which a claim must be brought. [9] Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Toronto: LexisNexis, 2008) at 682-83, statesthe law with respect to declaratory provisions in statutes as follows. Declaratory provisions. A common form of retroactive legislation is the so-called declaratory provision.

It cures doubts or mistakeninterpretations of existing law by declaring its true meaning not only for the future but also for the past. As Lambert J.A. explainedin Hornby Island Trust Committee v. Stormwell [(1988), (BC CA), 53 DLR (4th) 435 (BCCA)]: … where a statute is declaratory of the law, it may be both natural and fair to interpret it, under a retroactive construction, as a statementnot only of what the law is at the time of the enactment but also as a statement of what the law has always been. Pigeon J. points out that not every provision designed to clarify a legal rule or correct a faulty

interpretation is necessarily retroactive.The hallmark of the retroactive provision is its declaration that the law not only is but always has been, or is deemed always to have been,as described or set out in the provision. There must be something in the wording of the provision, or in the circumstances in which it isenacted, to indicate that the provision is meant to apply to past as well as future facts. The courts can be quite reluctant to accept aretroactive intent on the part of the legislature. [Emphasis added]] [10] The amendment must be interpreted applying the modern rule of statutory

interpretation, within a purposiveanalysis, having regard to the context and the rules of statutory

interpretation. I conclude the Legislature was making a declaratoryprovision when it passed s. 71.1. Given the previous lacunae in the Act regarding when such a claim could be made and the Legislature’smandatory direction that a claim must be made within one year after the date of the act of omission giving rise to the claim, I amsatisfied that this amendment should be viewed as declaratory and, thus, has effect both prospectively and retrospectively. [11] Accordingly, I find that the Hearing Officer Gord Mayer made no error of law when interpreting s. 71.1 as hedid. Accordingly, I dismiss the appeal. “B. Scherman” J. B. SCHERMAN