DERWIN FIDDLER, APPELLANT - v. -, 2022 SKKB 263

KING’S BENCH FOR SASKATCHEWAN 2022 SKKB 263 Date: 2022 12 02 Docket: KBG-PA-00141-2022 Judicial Centre: Prince Albert IN THE MATTER OF AN APPEAL PURSUANT TO THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: DERWIN FIDDLER, APPELLANT - and - (TERRANCE) GREG PROVOST and THE OFFICE OF RESIDENTIAL TENANCIES, RESPONDENTS Counsel: Thomas Baldry for the appellant Greg Provost on his own behalf No one appearing for the Respondent, The Office of Residential Tenancies ___________________________________________________________________________ JUDGMENT MESCHISHNICK J.

December 2, 2022 ___________________________________________________________________________ [ 1 ] In this case the Landlord applied for an Order for Possession of a premises that had been rented to the Tenant. The Tenant disputed the application, and a hearing was scheduled for 11:30 a.m. on October 12, 2022, by telephone.

The Tenant provided a telephone number to be called at when the hearing convened. [ 2 ] The Hearing Officer made several unsuccessful attempts to contact the Tenant at the number provided and on the first attempt left a voicemail message advising that the Tenant needed to answer the telephone call if he wished to take

part in the hearing and that if he did not the hearing would proceed without him. After five attempts to call the Tenant over the course of 30 minutes the Hearing Officer proceeded in the Tenant’s absence and by written decision issued October 14, 2022, 2022 SKORT 2783 , ordered

that the Landlord be given possession of the rental unit. The Hearing Officer directed that a Writ of Possession be issued for execution effective October 24, 2022. [ 3 ] Before the Hearing Officer rendered a decision on the Landlord’s application the Tenant had applied for a rehearing of the application. In the application for a rehearing the Tenant said that he had been by his phone between 11:00 a.m. and 12:30 p.m. on October 12 and only received one call from the Hearing Officer that went to his voicemail.

He acknowledged that he had discovered by 1:43 p.m., the time he sent the email requesting the rehearing, that his phone had been set by default to block private phone numbers which explained why the calls from the Hearing Officer did not come through to him. [ 4 ] The Hearing Officer denied the Tenant’s request for a rehearing. [ 5 ] The Tenant appeals both the decision to grant the Order for Possession and the denial of the request for the rehearing.

Jurisdiction and Standard of Review [ 6 ] Pursuant to s. 72(1) of The Residential Tenancies Act, 2006, SS 2006, c R-22.0001 [ Act ] this court can only hear appeals from decisions of Hearing Officers on questions of law and jurisdiction. [ 7 ] Statutory appeals from decisions of administrative decisions-makers are now determined by applying appellant standards of review, Silzer v Saskatchewan Government Insurance , 2021 SKCA 59 at para 25 [ Silzer ]. [ 8 ] Questions of law including questions of statutory

interpretation and the scope of the decision-makers authority are reviewed for correctness, Lansdowne Equity Ventures Ltd. v Cove Communities Inc ., 2020 SKQB 113 at para 25 . [ 9 ] Breaches of fair hearing rules or the denial of natural justice are questions of law, Knapp and Atherton v ICR Commercial Real Estate , 2019 SKQB 59 at paras 16-17 [ Knapp ], Wenzel v Kapoor , (1 October 2020) Saskatoon, QBG-SA-01018-2020 (Sask QB) at para 22 [ Wenzel ]. [ 10 ] In limited circumstances findings of fact may amount to an error in law.

Silzer sets out the situations where that might occur in statutory appeals: [24] While an appeal from a finding of fact is not permitted under s. 194 , factual findings may give rise to an error of law in the limited circumstances described in Murphy v Saskatchewan Government Insurance , 2008 SKCA 57 , [2008] 7 WWR 401 [ Murphy ]: [5] Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (

a) is based on no evidence; (

b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (

c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al. , 2007 SKCA 149 , (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008 [leave to appeal SCC dismissed, [2008] 2 SCR xi]).

The right of appeal, of course, extends to such errors of law. [25] With the release of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ], it is now clear that where the operative legislation allows for a statutory appeal – with leave or as of right – the Legislature is taken to have intended that the usual appellate standards of review will be applied.

This means that with respect to questions of law, the correctness standard of appellate review is applicable (at para 37): see also Van de Sype v Saskatchewan Government Insurance , 2020 SKCA 18 . [ 11 ] Appellant intervention is also limited when the order appealed from is a discretionary one. In CPC Networks Corp. v Miller , 2022 SKCA 95 [ CPC Networks ] said: [29] A decision as to whether to order for security for costs is discretionary.

Further, the parties agree that the standard of review that applies to an appeal of a discretionary decision is that specified in Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161 [ Kot ] : [20] …[A]ppellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence.

Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law. Such errors may include a failure to give any or sufficient weight to a relevant consideration. Analysis [ 12 ] Two affidavits were filed in support of the Tenant’s position that he was denied procedural fairness.

Affidavits are admissible for this purpose, Saskatchewan (Workers’ Compensation Board) v Gjerde , 2016 SKCA 30 at para 48 , [2016] 4 WWR 423. [ 13 ] The Tenant recalls in his affidavit that he and his nephew who he had assist him with utilizing the technology to access the online portal set up by the Office of Residential Tenancies sat by his phone from 11:00 a.m. to 12:30 p.m. and, as mentioned, only received one phone call from the Hearing Officer. That call went to voicemail.

In their affidavits the Tenant and his nephew both say that they did not see any notification that the Tenant was to ensure that his phone would receive calls from private numbers. He also said that he was given “no indication by the Hearing Officer or the Office of Residential Tenancies [ORT] that the call would be coming

from such a number”. The Tenant also says that he was never told directly by anyone from the ORT that he should ensure his phone was capable of receiving calls from private numbers. [ 14 ] The Tenant says in his affidavit that between the time that the hearing was to start and the time that he filed by email the request for a rehearing, a period of just over two hours, he called the ORT twice and had to leave voice mail messages as no one answered the phone. He said he also texted the ORT at one of the numbers during that time span.

He also phoned the Landlord and left a voicemail message when he did not get an answer. [ 15 ] The Tenant is 62 years old. He says he of course has a phone and an email account but rarely uses email or text as a method of communication. He relies on his nephew to help him with technology. It was his nephew who discovered that his phone was set to block calls from unknown numbers after they had found out from a returned call by the Landlord that the hearing had ended.

Participation in the Hearing [ 16 ] As Justice Mitchell noted in Knapp at para 75 “… ORT hearing officers must accord a high level of procedural fairness to all parties who appear before them”.

In Kristen Denet v Regina Housing Authority , (5 November 2019) Regina, QBG-RG- 02569-2019 (Sask QB) [ Denet ], he commented that the termination of a tenancy and the eviction of a tenant is “one of the harshest [orders] the ORT is authorized to meet out”. [ 17 ] It is clear that the Tenant made every effort to participate in the hearing and that the Hearing Officer made numerous attempts to call the Tenant so he could participate.

No doubt the Hearing Officer’s efforts were in recognition of the duty of fairness and the need to ensure that the Tenant is provided meaningful participation in the adjudication of the Landlord’s claim. [ 18 ] The system broke down because the Hearing Officer called from a phone number that was blocked by a setting in the Tenant’s phone. [ 19 ] There is an email on the ORT’s file from its Dispute Resolution Facilitator to the Hearing Officer that was sent as a part of the information to be considered in determining if the application should be reheard saying that: … The T linked to the claim…on October 5, 2022.

On September 22, 2022, the ORT put wording into the online portal in the warning

section when a party links to a claim to “Please note that the hearing officer may call from an unknown or blocked number; please ensure you are able to receive these types of calls at the time of the hearing”.

The T was given indication by the ORT that the call for the hearing may come in this way. [ 20 ] This message was also relayed to the Tenant in an email sent October 13, 2022 at 4:09:50 p.m. by the Dispute Resolution Facilitator in which he was advised that his request for a rehearing had been denied. [ 21 ] As the Hearing Officer noted, notice of the hearing and the supporting material that is required to be served on the Tenant was properly served on the Tenant. Copies of that material are on the ORT file.

Nowhere in that material is a party to the hearing notified that they must ensure that their phone will receive calls from a private number. [ 22 ] Tenant’s counsel, in a comprehensive and helpful brief, referred me to three cases in support of his position that the hearing of the Landlord’s application was conducted in a manner that breached the duty of fairness owed to the Tenant. [ 23 ] In Denet, the tenant confused the date set for the hearing but realized shortly before or just as the hearing was concluding that she had done so. She called the ORT and asked to be connected to the hearing.

The ORT clerk who answered the phone advised the tenant that it was not possible to interrupt the hearing. Justice Mitchell noting that the Hearing Officer was not functus officio at the time the tenant called to access the hearing and should have been patched into the hearing if it was still in progress. If it had ended by then he observed that the Hearing Officer could easily have reconvened the hearing and avoided the delay and cost of having the parties come to this Court of Appeal.

Highlighting that participation is an essential element of procedural fairness and that eviction is a profound remedy, Justice Mitchell ruled that the tenant had been denied procedural fairness and directed that the application be reheard. [ 24 ] In Wenzel, the tenant knew of the date for the hearing and that it would be conducted by phone but was mistaken as to the time of the hearing believing it was at 9:30 a.m. rather than 11:20 a.m. When he did not get a call for a 9:30 a.m. hearing he called the ORT and because no one answered left a voicemail message.

The tenant acknowledged that at 11:25 a.m. he missed a call from an unknown number and the caller, the Hearing Officer, left a voicemail message. Like this case, the tenant subsequently determined that a setting on his phone blocked calls from unknown or private numbers and sent them directly to his voicemail. The tenant applied for a rehearing the next day. Again, like here and in Denet , a decision on the application that was heard in the tenant’s absence was not yet made.

And, like the circumstances here, the tenant applied for and was denied a rehearing before the decision was made. [ 25 ] Justice Crooks was satisfied that it was a setting on the tenant’s phone that blocked the call from the Hearing Officer and that the tenant made efforts to contact the ORT on the day of the hearing which confirmed that the tenant remained interested in being heard. Relying on leading authorities including Denet , Justice Crooks ruled that the tenant had been denied procedural fairness and set aside the decision of the Hearing Officer.

She also ruled that for various reasons that the ORT failed to properly consider the request for a rehearing. [ 26 ] The only feature distinguishing Wenzel from this case is that there was no “warning” posted on the ORT’s online portal that participants should ensure that their phone is capable of receiving calls from private numbers. [ 27 ] Third case on this point relied on by the Tenant is Litzenberger v Sali, (7 September 2022) Regina, QBG-RG- 01796-2022 (Sask QB) an unreported decision of Justice McMurtry.

That was another case where the hearing was scheduled to be heard by phone and the tenant followed the protocol of providing a phone number to be called at. At the same time the tenant advised the ORT that she could not afford a regular phone plan and used a free phone application to make and receive calls that was reliable to make calls

but was not reliable for picking up calls. She said when she noticed a call that she could not pick up she would call the number back. [ 28 ] On the morning of the hearing the tenant called the ORT and told them that she was having problems with her phone. She said the person she spoke with told her that she would be called by the Hearing Officer and that if she did not connect with the Hearing Officer, she could appeal the decision when it was given. The tenant did not receive a call.

The next day she received by email a decision from the Hearing Officer. [ 29 ] The Hearing Officer mentions in the decision that the tenant was called twice and, on each occasion, got a message that the phone number was not in service. [ 30 ] Justice McMurtry framed the question to be answered in that case as “Was the hearing officer justified in proceeding with the hearing in the absence of the tenant?” Justice McMurtry said no, ruling that “rather than assuming the tenant did not wish to participate in the hearing, the ORT should have considered the information it had that the tenant’s phone was not working” and taken appropriate steps to reach her.

It was Justice McMurtry’s view that simply calling the tenant when it was known that her phone may not receive a call did not fulfill the duty of fairness and quashed the decision of the Hearing Officer. [ 31 ] This case appears to be another instance of where a party to an application set to be heard by telephone, for innocent reasons and with every intention to participate in a hearing, did not participate simply because they could not receive a phone call.

And, even when the Hearing Officer knew or should have known the Tenant intended to participate, the Hearing Officer proceeded anyway. [ 32 ] In this case and in Wenzel the Hearing Officer did not reconsider the parties intention to participate and the innocent reason for the call not going through to the tenant as sufficient reasons for granting a rehearing. [ 33 ] In an effort to overcome having its decisions overturned by this court when an innocent party did not receive a call from a Hearing Officer from a private number because of a setting on the parties phone, the ORT placed a warning on the online filing system.

Little evidence was provided as to the purpose and functioning of this online portal but it appears it has setup to, among other things, facilitate the filing of documents relevant to the hearing. [ 34 ] Courts and administrative tribunals demand that notice of a proceeding is brought to the attention of a party affected by the proceeding. They demand proof that notice of the proceeding has come to the attention of the parties affected.

Yet, Hearing Officers are prepared to proceed with a hearing in the absence of a party without knowing if it has come to the attention of a party that it must receive a call from a private number. Simply posting a “warning” on a website does not ensure, as in this case, that the “warning” has come to the attention of parties to a hearing conducted by telephone. And, even if it did, it does not ensure that a party would even know of phone settings that block calls or how to change those settings. [ 35 ] The procedure used by the Hearing Officer to conduct this hearing was unfair to the Tenant.

It did not provide the Tenant who clearly wished to participate and was ready to participate with a reasonable opportunity to participate.

The right to participation is the most fundamental right of fairness, second only perhaps to the notice of the hearing. [ 36 ] While a decision-making tribunal must develop procedures to hear and determine matters brought before it in a timely and efficient manner, the procedure cannot deny participation because the party does not have access to the technology to engage the procedure or because of an unknown setting within that technology. [ 37 ] This is especially so when the problem, particularly with calls from private numbers being blocked, can easily be solved. Using a call-in system might be one solution.

If using a call out system consideration should be given to ENSURING the party is aware of phone settings that may prevent them from receiving a call from the call out number and ENSURING the party is capable of checking those settings and changing them if a change is required. Perhaps providing to the party the actual number the call will be coming from would also be of assistance so a party would not have to unblock all unknown numbers. [ 38 ] Whatever system is employed it must ensure that parties who want to participate will be given a reasonable opportunity to participate.

Calling from a private number that is unknowingly blocked by a setting on the phone of a participant who was ready to receive the call does not provide a reasonable opportunity to participate. [ 39 ] I have conducted numerous hearings by remote means. Even parties who one would expect to be savvy in the use of the technology or have IT personnel at their disposal at times cannot connect or be reached.

Relying on parties to ORT hearings to read notices that have been “posted” as opposed to having been drawn to their attention and then presuming that they even know of a blocked call function and then know how to fix it is presuming to much. [ 40 ] Relying on the cases referred to me by the Tenant and finding that the posting of a “warning” was insufficient to ensure the Tenant’s participation in the hearing, the decision of the Hearing Officer is quashed. Regrettably, the Landlord has been delayed in having the application heard and determined.

Refusal to Rehear the Application [ 41 ] In the event it is determined that I am incorrect in my determination on the first issue and because the Tenant made significant representation on this point, I will also rule on whether the denial of a rehearing was an error in law. [ 42 ] A Hearing Officer is empowered by s. 73(5) of the Act to rehear an application when an order has been made without hearing from the affected person.

The jurisdiction to grant a rehearing is not limited to instances when a party establishes that it has not been served with notice of the application or the time and date that the hearing will be held. [ 43 ] A decision to order a rehearing is discretionary. But a Hearing Officer must also ensure that a decision to deny a rehearing is made in accordance with the principles of natural justice. And the reasons for the decision must also be adequate and

capable of meaningful appellant review. Failure to do so is an error in law (R v Haque, 2022 SKCA 124 at paras 10-11 [Haque]). [44] The Tenant made application for a rehearing within two hours of determining that the hearing had concluded.The Tenant’s application which acknowledged that he had discovered that a setting on his phone was the reason for not receiving the callwas relayed by the Dispute Resolution Facilitator to the Hearing Officer along with the additional information about the “warning” thatthe call may come from a private number had been posted on the online portal.

The Tenant was not provided with this information and,obviously, was not given an opportunity to respond to it. [45] The Hearing Officer had not yet ruled on the Landlord’s application. [46] The Hearing Officer replied to the Dispute Resolution Facilitator’s email denying the application for a rehearingsaying, in part, “the tenant should have ensured that the calls were going through to his phone or contacted the ORT shortly after toenquire”. [47] I am of the view that the Hearing Officer made the following legal errors in denying the rehearing application: 1.

The Hearing Officer failed to identify, much less consider the legal criteria which governed the exercise of the discretion to deny arehearing. Appellant intervention is warranted, CPC Networks at para 29. 2. Since the decision does not adequately disclose the criteria applicable to exercising the discretion to grant or refuse a rehearing itcannot be determined if those criteria were followed.

The decision is not capable of meaningful appellant review, Haque at paras 10-11.Hearing Officers are advised to consider the decision from this court in Smith v Scory (1998), (SK KB), 169 Sask R147 (QB) which sets out the test for determining when a rehearing should be granted pursuant to the wording of the legislation thatexisted at that time. 3. The Hearing Officer failed to conduct a fair hearing by considering facts provided by the Dispute Resolution Officer that were notmade known to the Tenant and in failing to give the Tenant an opportunity to reply.

Had the Tenant been given that opportunity theHearing Officer would have become aware that the Tenant did not notice the “warning” and had made diligent efforts to contact the“ORT” during and after the hearing to ascertain how to be connected to the hearing. Conclusion [48] The decision of the Hearing Officer granting the Landlord’s application for possession is quashed and a newhearing ordered. If I would have decided otherwise, I would have quashed the Hearing Officer’s decision to deny the Tenant a rehearingand would have directed that a new hearing be conducted to consider the application for a rehearing. J.

G.A. MESCHISHNICK