JAMIE LABRE APPELLANT - v. -, 2022 SKKB 256

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 256 Date: 2022 11 24 Docket: QBG-SA-00768-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: JAMIE LABRE APPELLANT - and - ICR PROPERTY MANAGEMENT INC. and THE OFFICE OF RESIDENTIAL TENANCIES RESPONDENTS Appearances: Nicholas R.S. Blenkinsop for the appellant Chanda Lockhart for ICR Property Management Inc. ___________________________________________________________________________ JUDGMENT CURRIE J.

November 24, 2022 ___________________________________________________________________________ Introduction [ 1 ] Jamie Labre has been a residential tenant of ICR Property Management Inc. for several years. Over the course of his tenancy he has noted various circumstances of concern to him regarding the condition and use of the building in which his rental unit is located. From time to time he has inserted himself into such circumstances, in an effort to protect and improve the use of the building for its tenants.

As he puts it, he wishes “to assist ICR in ensuring the safety, security, and quality of both my Unit and the Building.”

[ 2 ] From time to time, though, the landlord has found that Mr. Labre has inserted himself into the landlord’s business in a manner that gets in the way of the landlord operating the building. Accordingly, on several occasions the landlord has asked Mr. Labre not to involve himself in the operations of the building. [ 3 ] Matters came to a head following an incident in March 2022 when Mr. Labre discovered a person who was not a tenant (“the intruder”) sleeping in a common area of the building. It was evident to Mr.

Labre that the intruder had entered the building thanks to the building’s inadequate security system. Mr. Labre says that he kicked the intruder’s feet to wake him, upon which the intruder leapt to his feet and attacked Mr. Labre. Mr. Labre defended himself and succeeded in ejecting the intruder from the building. [ 4 ] When this incident was brought to the attention of the landlord, the landlord apparently decided that it had had enough of what it viewed as Mr. Labre taking landlord matters into his own hands. The landlord served Mr.

Labre with notice of an application, under The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 , for permission to evict Mr. Labre. A hearing of that application was conducted by a hearing officer, who dismissed the application. Thus Mr. Labre remained and remains in his rental unit. [ 5 ] Subsequent to that ruling, Mr. Labre served the landlord with notice of his application under the Act for an order requiring the landlord to pay him damages arising from various instances of the landlord failing to comply with its obligations under the Act and from the landlord’s effort to evict Mr.

Labre. [ 6 ] Following a hearing that was held in May 2022, a hearing officer dismissed Mr. Labre’s application. Mr. Labre now appeals from that decision. Issues on this appeal [ 7 ] Mr. Labre appeals under s. 72 of the Act , which provides that an appeal to this court may proceed “on a question of law or of jurisdiction”. [ 8 ] As I work my way through Mr. Labre’s grounds of appeal, I find it most convenient to organize them as follows: 1. Did the hearing officer err in his

interpretation of a landlord’s obligation to maintain and repair the residential property? 2. Did the hearing officer fail to address issues that were raised by Mr. Labre or to consider pertinent evidence? 3. Did the hearing officer err in declining to award aggravated damages? [ 9 ] These are questions of law. The standard of review that applies is correctness: Lansdowne Equity Ventures Ltd. v Cove Communities Inc. , 2020 SKQB 113 , per Justice Elson at para 26. [ 10 ] Before I address these questions, I must address Mr. Labre’s request that I consider his affidavit, which he filed on this appeal.

Affidavit evidence on the appeal [ 11 ] On this appeal, Mr. Labre has filed an affidavit in which he describes oral evidence that was adduced before the hearing officer. He asks me to consider this evidence as an exception to the general rule that affidavit evidence is not admissible on an appeal such as this. That general rule was discussed by Justice Danyliuk in Williams v Elite Property Management Ltd. , 2012 SKQB 215 , 397 Sask R 204 at paras 16-17 : 16 As a general rule, affidavits disclosing matters which were not before the hearing officer are not admissible on a s. 72 appeal.

These are appeals on the record. It is generally improper for a party to attempt to bolster his or her case on appeal by filing sworn testimony via affidavit. In most appeals, the written material is limited to the notice of appeal, the decision appealed from and the documents filed at the hearing : Rich-Prop Investments Inc. v. Andres , 2007 SKQB 18 , 291 Sask.R. 40 ; Donnelly v. Dupuis , 2007 SKQB 481 , 308 Sask.R. 279 . 17 There are limited circumstances where an affidavit is permissible .

For example, where it is alleged there was an absence of jurisdiction due to lack of proper service, circumstances may be explained by way of affidavit. (emphasis added) [ 12 ] Justice Danyliuk returned to the topic in Williams v Elite Property Management Ltd . , 2021 SKQB 46 (“ Williams 2021 ”) at paras 14-16 : 14 Secondly, an affidavit of Ms. Williams was filed in support of this appeal. Whether it was admissible was the subject of discussion.

Appellant's counsel frankly acknowledges that this Court is generally not inclined to allow affidavits to be filed on RTA appeals, as in the main they are appeals on the record. Some exceptions were cited, including my prior decision regarding this same appellant in Williams v Elite Property Management , 2012 SKQB 215 , 397 Sask R 204 . There, I noted that as a general rule such affidavits are inadmissible. Exceptions will be relatively rare. 15 Counsel argued that the law on filing affidavits, pertaining to judicial review in general, ought to be applied to RTA appeals. Respectfully, I disagree.

This is a statutory appeal and while it resembles judicial review, there is a distinction. This is illustrated by the standard of review applicable, as discussed above. While a group of recent decisions (including Hartwig v Saskatchewan (Commissioner of Inquiry) , 2007 SKCA 74 , 284 DLR (4th) 268 and Saskatchewan (Workers' Compensation Board) v Gjerde , 2016 SKCA 30 , 395 DLR

(4th) 331 ) slightly expands the range of exceptions in judicial review, it must be noted that the essential concept in those decisions might be loosely defined as "getting the record right". There is a marked difference between supplementing or clarifying the official record, and filing an affidavit of the type filed herein, ostensibly designed to "provide general background in relation to the hearing" (para 46, appellant's brief). 16 This is a case where the putative procedural deficiencies are already apparent from the face of the record and do not require the further illumination that Ms.

Williams' affidavit purports to supply. Simply put, in this case I do not require that affidavit to properly deal with the live issue before me. (emphasis added) [ 13 ] Here, Mr. Labre asks me to consider his affidavit for two reasons. First, he refers to the remarks of the Court of Appeal concerning the record in judicial reviews. He asserts that there is not much difference between a judicial review and a statutory appeal, and that consequently there is sense in applying the same rules. [ 14 ] Second, Mr.

Labre says that in any event the circumstances of this appeal bring it within that category of rare exceptions that was referred to by Justice Danyliuk. This is not, he says, a case where all of the deficiencies to which he points are apparent from the record. Some of the deficiencies relate to the hearing officer having heard certain oral evidence at the hearing, but not having referred to such evidence in his decision. It is this oral evidence that Mr.

Labre relates in his affidavit. [ 15 ] As to the evidence that was referred to by the hearing officer in his decision, at para. 18 the hearing officer said: [18] I take this decision in Olaniyonu [ Oblacova v Olaniyonu (6 November 2020) Regina, QBG 1335/20 (Sask QB)], along with its incorporated decisions of Clifford [2009 ONCA 670] and R.E.M. [2008 SCC 51], to provide that I am not required to summarize all of the information and which I heard in the hearing, nor likewise make a determination on each and every detail or piece of evidence that was submitted.

Rather, I am to be clear in my rationale and explain the basis for the decision. [ 16 ] Thus the hearing officer recognized his duty to consider all of the evidence, and he recognized that he was not required to describe each item of evidence in his decision. From that circumstance I might infer that the hearing officer did what he recognized that he was supposed to do – that (contrary to Mr. Labre’s assertion) he considered all of the evidence even though he did not refer to all of it in his decision. [ 17 ] The difficulty with such an inference in this case, though, is that it leaves Mr.

Labre at the mercy (for lack of a better word) of the hearing officer’s record of the evidence. The evidentiary record is constituted by the documents that were filed at the hearing and by the recitation of evidence that is in the hearing officer’s decision. In the absence of any supplementation of that record there is no way for me to analyze Mr.

Labre’s assertion that there was pertinent oral evidence that was adduced at the hearing but that was not considered by the hearing officer. [ 18 ] This is the kind of circumstance that has led the Court of Appeal to permit affidavit evidence on a judicial review in some circumstances.

In Hartwig v Saskatchewan (Commissioner of Inquiry) , 2007 SKCA 74 , 304 Sask R 1 at paras 31-33 Justice Richards (as he then was) said: 31 In the result, therefore, the Minister has not established that the evidence from the Commission hearings, and relied on by Hartwig, Senger and the Association, should be excluded for purposes of their applications.

To the contrary, in my view, it is necessary to revisit and revise traditional notions about the scope of the material properly before a court on a judicial review application. 32 As indicated, I prefer to base my conclusion in this regard on the straightforward proposition that the parties to a judicial review application should be able to put before a reviewing court all of the material which bears on the arguments they are entitled to make.

If a tribunal decision can be challenged because it involves a patently unreasonable finding of fact, then the evidence underpinning that finding should be available for the Court to consider.

This is ultimately a sounder and more transparent approach to this issue than one couched in terms of the sometimes elusive notion of "jurisdiction" or framed around the complex and rather uncertain and unsatisfactory body of case law relating to the concept of decisions based on "no evidence". 33 Thus, in all of the circumstances, the best course in this area for now is to simply recognize the right of participants in judicial review proceedings to bring forward the evidence which was before the administrative decision-maker.

This may be done by way of an affidavit which identifies how the evidence relates to the issues before the court and which otherwise lays the groundwork for its admission. That was the general approach taken by Hartwig. (emphasis added) [ 19 ] In Williams 2021 Justice Danyliuk observed that a statutory appeal is not a judicial review, and he declined to declare that the judicial review law regarding affidavits applies across the board to residential tenancy appeals. In the case before me, there likewise is no need for me to go so far as to import in its entirety the judicial review law regarding affidavits.

Having said that, as I consider whether the circumstances of this case fall within an exception to the general rule prohibiting the admission of affidavits on the appeal, I find guidance in the principle that underlies the Court of Appeal’s approach in those judicial review cases. [ 20 ] That approach is to recognize the fairness and practicality of enabling parties to put their arguments before the court for consideration, complete with the underpinning evidence, as Justice Richards explained in Hartwig at para 32 .

In contrast to the circumstances that were before Justice Danyliuk in Williams 2021 , here the record of evidence that is provided by the documentary exhibits and the recitation of oral evidence in the hearing officer’s decision is inadequate to enable me to consider Mr. Labre’s argument. [ 21 ] Therefore I conclude that this case falls within an exception to the general rule. Mr. Labre’s affidavit is admissible on this appeal for the purpose of describing oral evidence that was adduced before the hearing officer.

Landlord’s obligation to maintain and repair [ 22 ] A landlord’s obligation to maintain and repair is described in s. 49(1) of the Act : 49(1) During the term of the tenancy agreement, a landlord must: (

a) maintain the residential property in a good state of repair and fit for habitation, use and enjoyment notwithstanding that the state of non-repair of the residential property exists to the knowledge of the tenant before the tenancy agreement was entered into or came into existence after that date; and (

b) subject to subsection (3), keep in a good state of repair for the use and enjoyment of the tenant all services and facilities that are supplied by the landlord under the tenancy agreement or that are added or substituted for those services and facilities. [ 23 ] In his written material filed before the hearing officer, and in his evidence at the hearing, Mr.

Labre identified the following maintenance and repair issues: - inadequate building security (involving doors, locks, mail and buzzer systems), resulting in intruders accessing the common areas; - the presence of cockroaches in the building; - problems with the taps in Mr. Labre’s unit; and - disruptions in the building’s water supply [ 24 ] The hearing officer addressed the building security issue (and possibly some of the others, as discussed later in this decision) generally at paras. 38 and 40 of his decision: [38] It is clear that the issues raised by the Tenant exist.

However, it is also clear that these complaints have rarely, if at all, been brought to the Landlord’s attention. … [40] I am satisfied as to both parties’ information. The issues raised by the Tenant likely exist and need to be addressed; however, the Landlord has not been advised of these issues and therefore has not had reasonable opportunity to address these items. [ 25 ] The hearing officer thus declined to find that the landlord was in breach of its obligation because no one had told the landlord about the deficiencies in its maintenance and repair of the building.

With respect, this ruling constituted an error in law. [ 26 ] The landlord’s obligation to maintain and repair does not arise only when someone tells the landlord of a problem. Subject to the exception that I will address, the obligation exists independently of being notified.

Section 49 establishes the landlord’s obligation to be proactive, to maintain a program of preventive maintenance in order to ensure that the building is in good repair. [ 27 ] This approach was adopted by Justice Weiler in Onyskiw v CJM Property Management Ltd. , 2016 ONCA 477 . Two aspects of that decision are relevant here.

The first aspect is the court’s recognition that the landlord there had maintained a program of preventive maintenance – rather than just reacting when someone told the landlord of a problem – and that such a program was necessary for the landlord to meet its obligation to maintain and repair. [ 28 ] The second aspect of Onyskiw relates to the reason that the court concluded that the landlord was not in breach of its obligations in that case. In that case the rental building’s elevator had broken down. The evidence established that the cause of the problem was a latent defect with a brake drum.

The evidence further established that such a defect could not have been detected through the landlord’s program of preventive maintenance, which included regular inspection of the elevator by a qualified elevator company. In short, the landlord in that case had done all that it could to reasonably meet its obligation of proactive maintenance and repair. [ 29 ] I adopt the approach set out in Onyskiw as the correct

interpretation of s. 49 of the Act . Under s. 49 a landlord may not merely react to problems being pointed out to it. Rather, a landlord is obliged to maintain a program of preventive maintenance to ensure that the landlord meets its obligation of maintenance and repair. [ 30 ] As occurred in Onyskiw , if an appropriate program of preventive maintenance would not reveal a particular problem, the landlord may not be in breach of its obligation as a consequence of that problem existing. In this case, there is no evidence that the landlord had such a program in place.

In any event, the hearing officer’s decision was not based on the adequacy of any program of preventive maintenance. Rather, his decision was based on the landlord not having been told of the deficiencies – on the landlord’s obligation being reactive rather than proactive. As I have said, that approach did not apply the correct law, and so that ruling constituted an error in law. Consideration of issues and evidence [ 31 ] Mr. Labre asserts that the hearing officer did not address, or did not consider pertinent evidence relating to, these issues:

- the presence of cockroaches in the building; - problems with the tap in Mr. Labre’s rental unit; - disruptions in the building’s water supply; and - inadequate building security (involving doors, locks, mail and buzzer systems), resulting in intruders accessing the common areas. [ 32 ] In his decision the hearing officer did not refer expressly to the presence of cockroaches. He did, at para. 28, refer to Mr. Labre’s allegation that the landlord had “failed to address certain defects to the rental property”, but he did not specify those alleged defects in his decision. At para. 29 he said that Mr.

Labre did not dispute the landlord’s submission that the landlord first heard of “certain defects” at Mr. Labre’s application. The hearing officer then said: [29] … As such, I am not satisfied that there was any breach of the Act or, alternatively, even if there was a breach, there was no effort on the part of the Tenant to mitigate against the breach… [ 33 ] If this determination related to the presence of cockroaches, it was inadequate in light of my discussion, above, of a landlord’s obligation to maintain and repair.

The presence of cockroaches in the building may or may not be one of those circumstances in which the landlord is not expected to have discovered the problem on its own. Such a determination, though, requires some discussion and explanation. The hearing officer’s decision does not include such discussion and explanation. [ 34 ] Regardless, there is no way of knowing whether the hearing officer included the cockroach issue in this determination at para. 29. Mr. Labre had expressly raised the cockroach issue before the hearing officer, and Mr. Labre’s affidavit describes oral evidence at that hearing from Mr.

Labre and from Dave Wolf regarding their discovery of cockroaches in the building. To all appearances, though, the hearing officer did not consider the cockroach issue that was raised by Mr. Labre and on which there was oral evidence. This failure constitutes an error in law. [ 35 ] A tribunal’s failure to consider and address an issue that had been raised by one of the parties typically breaches the principles of natural justice and procedural fairness. Someone whose position was not even considered at a hearing generally has not been treated justly or fairly.

That such a failure is a breach of the principles of natural justice and procedural fairness has been established in decisions such as Turner v Canada (Attorney General) , 2012 FCA 159 , 431 NR 327 at paras 40-43 . [ 36 ] Not every issue raised by a party necessarily falls under this principle. A tribunal may evaluate the importance of an issue and determine whether to address it. Such a determination must be explained in the decision, though.

The hearing officer here did not provide such an explanation. [ 37 ] Similarly, a tribunal’s failure to consider and address pertinent evidence typically breaches the principles of natural justice and procedural fairness. Someone whose evidence was not considered at a hearing has not been treated justly or fairly. That such a failure is a breach is established in decisions such as P.S.S.

Professional Salon Services Inc. v Saskatchewan (Human Rights Commission) , 2007 SKCA 149 , 302 Sask R 161 at para 68 and Ottenbreit v Paul , 2015 SKQB 326 at para 55 . [ 38 ] A breach of the principles of natural justice and procedural fairness is an error in law: Knapp v ICR Commercial Real Estate , 2019 SKQB 59 per Justice Mitchell at para 20. [ 39 ] Therefore, the hearing officer’s failure to consider the cockroach issue that was raised by Mr.

Labre, and his failure to consider evidence pertaining to that issue, breached the principles of natural justice and procedural fairness, thus constituting an error in law. [ 40 ] Mr. Labre’s tap issue falls into the same category. The hearing officer did not refer specifically to the tap issue. It had been identified as an issue in Mr. Labre’s written material. There was oral evidence before the hearing officer as to the issue. The hearing officer did not address the issue in any meaningful way, and to all appearances he did not consider it or the evidence relating to it.

This failure constitutes an error in law. [ 41 ] The hearing officer did identify disruptions in the water supply as an issue raised by Mr. Labre, and he addressed the issue. He concluded that the landlord had shut off the building’s water supply for repairs one or two times per month. He further concluded that the landlord gave the tenants notice of such interruptions in water supply, and that the landlord chose “convenient” hours for doing so.

In short, the hearing officer concluded that the landlord had inconvenienced the tenants as little as possible, regarding water supply interruptions, and that the landlord had not breached its obligations in that regard. [ 42 ] The evidence that was before the hearing officer on the water supply issue, including the evidence identified in Mr. Labre’s affidavit, permitted the hearing officer to reach these conclusions.

That being the case, I find no error in his decision that the landlord was not in breach of its obligations regarding the water supply. [ 43 ] I note, as an aside, that the hearing officer added (at para. 29) that “even if there was a breach, there was no effort on the part of the Tenant to mitigate against the breach”. He discussed no evidence in that regard, though, and he provided no explanation for how he had reached that decision regarding mitigation.

Had it been necessary to deal with it, I would have addressed those failures in the context of a tribunal’s obligation to explain its decisions, as described by Justice Barrington-Foote in Ottenbreit at para 57 . [ 44 ] The hearing officer did address the issue of inadequate building security, as I have discussed. I have determined that he erred in applying the law to that issue. In light of the consequence of that determination, set out below, it is not necessary for me to examine whether he also failed to consider some of the evidence pertaining to that issue. Aggravated damages

[45] Mr. Labre says that the landlord engaged in high-handed and oppressive conduct by moving to evict him. Onthis basis Mr. Labre claimed aggravated damages from the landlord. The hearing officer rejected that claim. Mr.

Labre argues here thatthe hearing officer’s rejection of the aggravated damages claim did not conform to the applicable law. [46] In Gasparovic v Sutherland (1996), (SK KB), 150 Sask R 51 (QL) (QB) at para 33 JusticeMatheson addressed the awarding of aggravated damages in a residential tenancies matter: 33 The aggravated damage award arose because of the "stress and inconvenience" caused to the respondents when they weredispossessed.

The wrongful act on the part of the appellant, from which the award of aggravated damages flowed, was the renting of theplacarded premises resulting in the respondents' subsequent dispossession thereof. The wrongful act was not that of being a verballyabusive and harassing landlord. (emphasis added) [47] Justice Matheson observed that aggravated damages must be anchored in a wrongful act. Justice Gerein madethe same observation in Farness v Dean-K Development Inc. (1997), (SK KB), 155 Sask R 85 (QL) (QB) at para 7: 7 The subject of aggravated damages has been discussed in many cases.

However, rather than discuss them I prefer to adopt thestatements contained in two learned texts. In Canadian Tort Law (5th ed.) 1993, by A.M. Linden, the following appears commencing atp. 55. There is authority for awards of "aggravated damages as contrasted with "punitive" damages, the former being granted to compensate theplaintiff for the loss to dignity resulting from the defendant's malicious conduct, the latter being given to express the court's outrage andin order to deter such conduct in the future. Mr.

Justice La Forest has recently explained that "[a]ggravated damages may be awarded ifthe battery has occurred in humiliating or undignified circumstances". They are not awarded in addition to general damages, but as part ofthe general damages. The "aggravating features" are taken into account by the court and the award of general damages is increasedaccordingly. Although these types of damages may overlap, they are distinguishable in that "punitive damages are designed to punishwhereas aggravated damages are designed to compensate". In Remedies In Tort, 1987. edited by L. D.

Rainaldi, the following is found at Vol. 4, paras. 20 and 21. §20 Aggravated damages provide compensation for the injured feelings of the plaintiff where such injury has been caused by thetortfeasor's malice or outrageous conduct.

Although aggravated damages are typically awarded in intentional tort actions, such damagesmay also be granted in negligence cases if the plaintiff's emotional trauma is heightened by the defendant's extreme recklessness.Aggravated damages differ from punitive damages in that the latter are imposed to punish the defendant while the former are intended tocompensate the plaintiff. . . . §21 Since aggravated damages are designed to compensate the plaintiff for his injured feelings, the principles of assessing quantum arethose used to quantify other forms of non-pecuniary loss.

A plaintiff need not specifically plead a claim for aggravated damages providedthat facts supporting the claim are pleaded. Aggravated damages are not awarded in addition to general damages. Rather, generaldamages are assessed taking into account any aggravating features of the case and, to that extent, increasing the amount of generaldamages awarded. (emphasis added) [48] Mr. Labre’s claim for aggravated damages is based on the landlord having tried to evict him following theMarch 2022 intruder incident.

As to the requirement that aggravated damages be anchored in a wrongful act, the hearing officer did notfind a wrongful act in the landlord’s efforts to evict Mr. Labre. Indeed, while the hearing officer expressed a degree of mystification as tothe reason for the landlord seeking to evict Mr. Labre, the hearing officer also recognized the landlord’s frustration with Mr. Labre’sinvolvement in the landlord’s business. The hearing officer went so far as to conclude that Mr.

Labre’s conduct in the intruder incidentwas unreasonable, involving himself as he did in the landlord’s business by initiating a physical confrontation with the intruder. [49] The evidence that was before the hearing officer did not require him to find a wrongful act, so there is no basisfor interfering with that ruling. A review of the evidence, specifically including email exchanges between Mr. Labre and the landlord,supports the hearing officer’s conclusion that the landlord’s conduct was not high-handed or oppressive, and did not establish a wrongfulact.

Despite being cautioned repeatedly by the landlord not to take building management issues into his own hands, Mr. Labre repeatedlytook building management issues into his own hands. In that circumstance, it was understandable that the landlord sought an evictionorder under s. 68 of the Act, which provides that a landlord may obtain such an order if a hearing officer is satisfied that, among otherpossibilities, the tenant has significantly interfered with the landlord. [50] The hearing officer did not err in ruling that the landlord’s conduct was not high-handed or oppressive.

In anyevent, the hearing officer did not err in dismissing the claim for aggravated damages, since an underlying wrongful act was notestablished. The hearing officer did not err in law in relation to the claim for aggravated damages. Conclusion [51] The hearing officer erred in law in relation to whether the landlord breached its obligation of maintenance andrepair under s. 49 of the Act. He also erred in law in failing to consider issues and in failing to consider evidence. The specific issues inrelation to which he erred are: (

a) inadequate building security, including the buzzer and mail systems, exterior doors and intruders accessing the common areas;

(

b) the presence of cockroaches in the building; and (

c) problems with the taps in Mr. Labre’s unit. [ 52 ] The hearing officer did not err in law in relation to the water supply issue, or in relation to the claim for aggravated damages. [ 53 ] Therefore: (

a) In relation to the water supply issue and the claim for aggravated damages, Mr. Labre’s appeal is dismissed. (

b) In relation to the issues of: (

i) inadequate building security, including the buzzer and mail systems, exterior doors and intruders accessing the common areas; (ii) the presence of cockroaches in the building; and (iii) problems with the taps in Mr. Labre’s unit; the hearing officer’s decision is set aside and a new hearing is ordered. To avoid the possibility of confusion of evidence between the original hearing and the new hearing, I direct that the new hearing must take place before a different hearing officer. J. G.M. CURRIE