SAMANTHA STEEN APPLICANT - v. -, 2023 SKKB 92

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 92 Date: 20 23 05 02 Docket: KBG-YT-00051-2023 Judicial Centre: Yorkton IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006, SS 2006, c R-22.0001 BETWEEN: SAMANTHA STEEN APPLICANT - and - PATRICIA LEVESQUE RESPONDENT - and - DIRECTOR OF THE OFFICE OF RESIDENTIAL TENANCIES RESPONDENT Counsel: Samantha Steen self-represented appellant Brenda Leclerc for the defendant, Patricia Levesque No one appearing Office of Residential Tenancies JUDGMENT LAYH J.

May 2, 202 3 BACKGROUND [ 1 ] The tenant, Samantha Steen, has filed a notice of appeal respecting the decision of the hearing officer dated March 2, 2023 ( Levesque v Steen , 2023 SKORT 665 ) pursuant to which she was ordered to pay damages of $4,375.00 to the landlord, Patricia Levesque. Ms. Steen alleges that she did not receive notice of the hearing date. [ 2 ] Respecting the actual receipt of the notice of the hearing, both Ms. Steen and Ms. Levesque, as represented by her daughter, Brenda Leclerc, agree that Ms. Steen did not receive the email notification that Ms.

Leclerc sent on January 13, 2023 respecting the hearing date because Ms. Steen had blocked email correspondence from Ms. Leclerc effective September 22, 2022. Furthermore, both agree that although Ms. Leclerc had sent notice of the hearing by registered mail to a box number in Whitewood, Saskatchewan, Ms. Steen refused to accept the registered mail from Ms. Leclerc. [ 3 ] The hearing officer in his decision of March 2, 2023 addressed the matter of service upon Ms. Steen, writing: [4] The Notice of Hearing was properly served by electronic mail.

The Notice of Hearing was also sent by registered mail, although the evidence indicates that this was refused by the recipient. The respondent did not make arrangements in advance to appear at the hearing by telephone as the Hearing Notice served upon them directed. From this I conclude they have chosen not to appear.

As the respondent was properly served with notice and the notice advised them that if they did not appear an order against them could issue in their absence, I determined it just and equitable that the hearing proceed. [ 4 ] As can be seen, the hearing officer accepted that email service had been effected.

SERVICE PROVISIONS OF THE ACT [ 5 ] The Residential Tenancies Act, 2006, SS 2006, c R-22.0001 [ Act ] contains specific direction respecting service of documents. In the instance of a former tenant (as Ms. Steen is), service may be effected by personal service or in electronic form. Section 82(1) of the Act reads as follows: 82(1) In this section, a reference to the service of a notice or other document pursuant to this Act includes the giving of that notice or other document and a reference to the giving of a notice or other document pursuant to this Act includes the serving of that notice or other document.

(2) Unless otherwise specified in this Act , any notice or other document that is required to be served pursuant to this Act or in any proceeding or matter under the jurisdiction or control of the director must be served: … (

b) in the case of service on a former tenant: (

i) by personal service on the former tenant; or (ii) in electronic form; … [ 6 ] If the document is served electronically, it must be accessible by the other person, as directed by ss. 82(3)(b), which reads as follows: 82(3) Unless otherwise specified in this Act or the regulations, notices required by this Act to be served must be in writing or, if provided in electronic form, must be: (

a) provided in the same or substantially the same form as the written notice or document required by this Act or the regulations; (

b) accessible by the other person; and (

c) capable of being retained by the other person so as to be usable for subsequent reference. … [ 7 ] Subsection 82(5) also addresses the nature of electronic service.

It specifically allows the person who was intended to be served to establish that “through no fault of his or her own, the person did not receive the notice of document.” The provision reads as follows: 82(5) A notice or document that is given in electronic form is deemed to have been given on the business day following the date on which it was sent unless the person to whom it was sent establishes that, through no fault of his or her own, the person did not receive the notice or document or received it at a later date. [ 8 ] There is little dispute that Ms.

Steen did not receive notice of the hearing date as provided by Ms. Leclerc. [ 9 ] Subsections 73(4) and 82.1(1) both give powers to a hearing officer to proceed with a hearing in the absence of a party. Subsection 73(4) allows a hearing officer to proceed if “notice of the hearing…has been given to the person…”. Seemingly, the hearing officer must be satisfied that service has been properly effected. Proof of such service must invariably be ascertained from the prescribed certificate of service.

Subsection 73(4) reads as follows: 73(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. [ 10 ] Subsection 82.1(1) gives even broader powers to a hearing officer to regularize a less-than-compliant method of service.

It reads as follows: 82.1(1) Notwithstanding that service of a notice or other document does not comply with this Act , a hearing officer may order that the service is sufficient if, in the opinion of the hearing officer, the notice or other document came to the attention of the person to be served. [ 11 ] However, in either instance – whether the hearing officer has proceeded under ss. 73(4) or 82.1(1) – a person may bring forward evidence that he or she did not receive actual notice. Subsection 73(5) allows a person to apply to a hearing officer to rehear an application.

Under the title “Hearing officers and powers on hearing” ss. 73(5) reads as follows: 73(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.

[ 12 ] The powers of a hearing officer upon such an application are wide ranging, allowing the officer an opportunity to rescind a previous order. Subsection 73(6) states: 73(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. [ 13 ] Subsection 82.1(2) seemingly also offers a remedy to a person who did not attend the hearing in situations where the hearing officer has regularized service of an otherwise imperfect method of service.

Subsection 82.1(2) reads as follows: 82.1(2) Notwithstanding that a hearing officer has ordered that a person has been sufficiently served pursuant to subsection (1), that person may bring evidence to prove that the person was not served or was served on a later date.

(3) For the purposes of subsection (2), the person mentioned in that subsection may apply pursuant to

section 70 for: (

a) an adjournment; (

b) an extension of time; or (

c) a rehearing of an application. [ 14 ] In my view the Act rather confusingly sets out two provisions – ss. 73(4) and 82.1(2) – to seek redress before a hearing officer if a person wishes to establish that he or she did not receive notice of the hearing. The Rules of Procedure of the Office of Residential Tenancies (2021) [Rules] specifically address how such a person may request the Director to order a re-hearing.

The Rules state as follows: 7.2 – Request of a Party to Re-Hear an Application A party to a claim may bring in evidence to prove that they were not served notice, or were served on a later date than prescribed for a hearing. Upon receipt of any request, the Director may order a re-hearing to establish whether service of the hearing notice was proper and sufficient. If the Director makes the determination that service of a Hearing Notice may have been improper or insufficient, they may order the claim be reopened. … [ 15 ] Ms. Steen has not availed herself of this re-hearing application.

Instead, she launched an appeal under s. 72 of the Act . I see nothing in the Act that precludes Ms. Steen from applying to the director as set out in Rule 7.2, even though she has launched an appeal to this Court. [ 16 ] However, having launched an appeal, s. 72 of the Act governs appeals, allowing an appeal on a “question of law or of jurisdiction.” It reads: 72

(1) Subject to subsections (1.1) and (1.3), any person who is aggrieved by a decision or order of a hearing officer or the director, whether or not the decision or order is made without notice, may appeal the decision or order on a question of law or of jurisdiction to the Court of Queen’s Bench within 30 days after the date on which the decision or order is signed and dated by a hearing officer. … [ 17 ] The file received from the Office of Residential Tenancies does not include the prescribed certificate of service, a certificate that must be signed by the person who has served an opposing party.

Specifically, when electronic service is alleged, the certificate includes a statement that reads, “Proof of electronic service MUST be submitted for the hearing officer to verify service.” [ 18 ] The hearing officer acknowledged that efforts to serve Ms. Steen by registered mail had failed. A Canada Post tracking document submitted to the hearing officer clearly states that on January 18, 2023 “item refused by recipient.

Item being returned to sender.” [ 19 ] Justice Tochor in Doobay v Genoway (23 May 2019) Regina, QBG-RG-01302-2019 (Sask QB) allowed a landlord’s appeal and ordered a new hearing based upon a fundamental breach of procedural fairness.

In that case, the landlord had not received notice of the hearing because the tenant had provided the incorrect address to the Office of Residential Tenancies. [ 20 ] Justice Smith in Menke Holdings Ltd. v Bayardo Aguirre , 2017 SKQB 72 ordered the Office of Residential Tenancies to provide a re-hearing where the landlord failed to provide sufficient notice to vacate. [ 21 ] Barrington-Foote J. (as he then was) in Stanton v Bochek , 2013 SKQB 213 , 422 Sask R 23 [ Stanton ] allowed the tenant’s appeal where the tenants had not received notice of the hearings in the manner prescribed by ss. 82(1) (

a) of the Act . He stated that a breach of procedural fairness can constitute a jurisdictional error within the meaning of s. 72 of the Act , writing: [8] It is well established that the duty of fairness applies in relation to a hearing under s. 70 of the Act , and that a breach of that duty can constitute a jurisdictional error within the meaning of s. 72 of the Act : see , for example, Herrod v. Barclay , 2012 SKQB 137 , 395 Sask.R. 251 ; Rohatyn v. Ebel , 2012 SKQB 459 , 408 Sask.R. 93 .

The failure to provide notice of the hearing to the tenants constituted such an error in this case. [ 22 ] Justice Gabrielson in Smith v Elite Property Management Ltd., 2012 SKQB 12 , 389 Sask R 63 [ Smith ] allowed a tenant’s appeal where there was no proper service of notice to vacate or notice of hearing: [19] There were two certificates of service on the Rentalsman’s file, both dated November 23, 2011, and both signed by Justin Wong.

In the first, Justin Wong certifies that he posted a true copy of the notice to vacate on the entrance door to the rental unit on November 18, 2011, and in the second, he certifies that he posted a true copy of the notice of hearing on the entrance door to the rental unit on November 18, 2011. In neither certificate is there any evidence of mailing the true copy of either notice to the tenant as required by the form. As indicated above, s. 82(1) ( a)(ii) of the Act requires both forms of service: (

i) posting the notice on the front door of the tenant’s rental unit; and (ii) by serving the notice or document by registered or ordinary mail. As there is no proof of service of either notice by ordinary or registered mail, as required by s. 82(1) (a)(ii), the hearing officer had no jurisdiction to hold a hearing nor to issue the order for possession. I therefore allow the appeal and set aside the order for possession. [ 23 ] I, like Justice Gabrielson, find that because there is no adequate proof of service the hearing officer had no jurisdiction to hold a hearing. [ 24 ] I find that Ms.

Steen may wish to apply to the director under Rule 7.2. However, I also find that the hearing officer’s decision that service was electronically effected in the absence of a signed certificate of service constitutes jurisdictional error. Stanton and Smith apply. For that reason, whether or not Ms. Steen applies to the director, her appeal is allowed, and the award shall be set aside. A new hearing is ordered. J. D.H. LAYH