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1998/99 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE UJJAL DOSANJH

ATTORNEY GENERAL AND MINISTER RESPONSIBLE FOR

MULTICULTURALISM, HUMAN RIGHTS AND IMMIGRATION

BILL 75 – 1999

RESIDENTIAL TENANCY AMENDMENT ACT, 1999

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

Section 1 of the Residential Tenancy Act, R.S.B.C. 1996, c. 406, is amended

(

a) by repealing the definition of "registrar" and adding the

following definition:

"director" means the director of the Residential

Tenancy Office of the ministry or any other official designated by the minister for

purposes of the administration of the Act; , and

(

b) by repealing the definition of "review panel" .

2 The following

section is added before

Part 1:

Director

3.1

(1) The director is responsible for the

administration and management of all matters and persons appointed under this Act.

(2) The director may delegate any power or duty of the director

under the Act.

3 Sections 22 (6) and (7) (a), 25 (1) (a), 49 (1) to (3) and (6), 50 (1), 51 (1),

52 (4) and (5), 53, 55 (1) (a), 57 (5) (

b) and 91.1 are amended by striking out "registrar"

wherever it appears and substituting "director" .

Section 22 (8) is repealed and the following substituted:

(8) On an application by a tenant under subsection (6), the

director may, without hearing the landlord, order the landlord to pay the security deposit

plus interest to the tenant.

(8.1) The director may vary or cancel an order issued under

subsection (8).

Section 26 is repealed and the following substituted:

Prescribed statement to justify a proposed rent increase

26 A landlord in preparing a statement referred to in

section 25 (2) must use the prescribed formulas

(

a) to calculate the rent adjustment based on the change in local

government levies attributable to the residential premises for the relevant 12 month

period,

(

b) to calculate the rent adjustment based on the portion of

capital expenditure attributable to the residential premises for the relevant 12 month

period, and

(

c) to combine the rent adjustments determined under paragraphs

(

a) and (

b) with the prescribed inflation adjustment factor to ascertain the justifiable

rent increase for the residential premises.

Section 27 is amended

(

a) by repealing subsection (1) (

b) and substituting the following:

(

b) properly attributable to the residential premises for the

relevant 12 month period, and , and

(

b) by repealing subsection (2) and substituting the following:

(2) After having determined under subsection (1) what the amount

for each item should be, the arbitrator must use the prescribed formula to ascertain and

award the justifiable rent increase, if any, for the residential premises.

7 Sections 49 (5) and 50 (2) are amended by striking out "registrar

or a person authorized by the registrar" and substituting "director" .

Section 50 (1) is amended by adding "and arbitration reviews"

after "arbitrations" .

Section 53 is amended by striking out "registrar's" and

substituting "director's" .

Section 54 (3) is repealed.

Section 55 is amended

(

a) at the end of subsection (1) (

e) by adding "and" ,

(

b) by repealing subsection (1) (

g) and (h), and

(

c) by repealing subsections (9) and (10).

Section 57 is amended

(

a) by repealing subsections (1) to (3) and (7) and substituting the following:

(1) The decision or order of an arbitrator must be given without

delay and, in any event, within 30 days after the hearing.

(2) The failure of an arbitrator to issue a decision within 30

days does not result in any loss of jurisdiction or otherwise affect the validity of the

decision or order.

(3) Except as otherwise provided in this Act, a decision or order

of an arbitrator is final and binding on the parties.

(7) A decision or order of an arbitrator under

section 46 or 47

may not be filed in a court until the expiry of the time limit for application for review

under

section 60. , and

(

b) in subsection (8) by striking out "while it is suspended under

section 62 (6)" and substituting "while the decision or order is

suspended under

section 61 (3)" .

13 The following

section is added:

Error or omission in decision

57.1

(1) In a matter before an arbitrator, the arbitrator

(

a) may, with or without a hearing, on the arbitrator's own

initiative or on the request of a party to the arbitration, correct a typographical,

arithmetical or other similar error in the arbitrator's decision or order, and

(

b) may, with or without a hearing, on the arbitrator's own

initiative or on the request of a party made within 15 days after the decision, order or

written reasons are given,

(

i) clarify the decision, order or reasons, or

(ii) deal with an obvious error or inadvertent omission in the

decision, order or reasons.

(2) A request to an arbitrator under subsection (1) (

a) or (

b) by

a party to an arbitration may be made without notice to any other party, but the

arbitrator may require that another party be given notice.

(3) An arbitrator must not exercise a power under subsection (1)

(

a) or (

b) unless the arbitrator considers it just and reasonable to do so in all the

circumstances.

14 Sections 59 to 64 are repealed and the following substituted:

Application for review of arbitrator's order or decision

(1) A party to an arbitration may apply to the director

for review of an arbitrator's order or decision.

(2) The director must designate an arbitrator to review the

application.

(3) The director must designate the original arbitrator to review

the application unless the original arbitrator is not available or the director considers

it appropriate to designate a different arbitrator.

(4) An order or decision of an arbitrator may be reviewed on one

or more of the following grounds:

(

a) a party was unable to attend the original hearing due to

circumstances that could not be anticipated and that were beyond his or her control;

(

b) a party has new and relevant evidence that was not available

at the time of the original hearing;

(

c) a party has evidence that the arbitrator's decision was

obtained by fraud.

(5) An application under subsection (1)

(

a) must be made in the form and manner approved by the director,

(

b) may be made without notice to any other party, and

(

c) must be accompanied by full particulars of the evidence on

which the applicant intends to rely.

(6) A party to an arbitration may make an application under this

section only once in respect of that arbitration.

Time limits for application to review

(1) A party must make an application under

section 59

(1) for review of a decision or order of an arbitrator that relates to

(a)

section 17 (4), 37, 46 or 47, within 2 days after a copy of

the decision or order is received by the party,

(

b) section 11 or 44, within 5 days after a copy of the decision

or order is received by the party, and

(

c) any other section, within 15 days after a copy of the decision

or order is received by the party.

(2) An arbitrator may extend the time for making an application

under

section 59 (1) or for taking any steps in the review of an order or decision.

Decision on application for review

(1) At any time after an application is made under

section 59 (1), the arbitrator designated to conduct the review may dismiss or refuse to

consider the application for review for one or more of the following reasons:

(

a) the issues raised by the application can be dealt with

sufficiently under

section 57.1 (1) (

a) or (b);

(

b) the application does not provide full particulars of the

matter submitted for review;

(

c) the application fails to disclose sufficient grounds for

review;

(

d) the application discloses no basis on which, even if the

submissions in the application were accepted, the decision or order of the arbitrator

would be set aside;

(

e) the application is frivolous, vexatious, trivial or has not

been initiated in good faith;

(

f) the applicant fails to pursue the application diligently or to

comply with an order made in the course of the review.

(2) A decision on whether an application discloses sufficient

grounds for review may be based on the written submissions of the applicant alone.

(3) The arbitrator may order that the decision or order to be

reviewed be suspended with or without conditions until the review has been completed and a

decision given to the parties.

(4) The arbitrator must give a decision in writing and with

reasons.

(5) Within 3 days of receiving a decision to proceed with the

review or as otherwise ordered by the arbitrator, the applicant must serve a copy of the

decision, and any order giving effect to the decision, on the other party.

Review of arbitrator's order or decision

(1) If the arbitrator decides that there are sufficient

grounds to review the order or decision, the arbitrator may deal with the matter on its

merits.

(2) An arbitrator may review the order or decision based solely on

the record of the original arbitration and any written submissions of the parties.

(3) The arbitrator may confirm or vary the original order or

decision.

(4) The arbitrator who conducts the review under this

section must

give a decision in writing and with reasons.

Powers of arbitrator conducting review

63 In the review of an arbitrator's order or decision the

arbitrator who conducts the review has all the powers and duties of an arbitrator in an

original arbitration.

Reassignment of arbitration or arbitration review

64 The director may designate a different arbitrator to

conduct an arbitration or arbitration review if the arbitrator originally designated is

not available or the director considers it necessary to designate a different arbitrator.

Section 71 is amended

(

a) in subsection (3) by striking out "30 days" and

substituting "60 days" , and

(

b) in subsection (4) by striking out "30 day" and

substituting "60 day" .

Section 77 is amended by striking out "section 86" and

substituting "section 87" .

Section 85 (6) is repealed.

18 Sections 86 to 88 are repealed and the following substituted:

Service of matters under sections 22 (9), 49 (4) and 61

(5) 86 An order for the return of a security deposit referred

to in

section 22 (9), an application for arbitration under

section 49 (4) or a review

decision under

section 61 (5) must be given to or served on a person by serving it in one

of the following ways:

(

a) by leaving a copy of the document with the person;

(

b) if the person is a landlord, by leaving a copy of the document

with an agent of the landlord;

(

c) by sending a copy of the document by registered mail to the

address at which the person resides, or if the person is a landlord, to the address at

which the person carries on business as a landlord.

How to serve documents generally

87 Except as provided in

section 86, a document required or

permitted to be given to or served on a person under this Act must be served in one of the

following ways:

(

a) by leaving a copy of the document with the person;

(

b) if the person is a landlord, by leaving a copy of the document

with an agent of the landlord;

(

c) by sending a copy of the document by registered mail to the

address at which the person resides, or if the person is a landlord, to the address at

which the person carries on business as a landlord;

(

d) by sending a copy of the document by ordinary mail to the

address at which the person resides or, if the person is a landlord, to the address at

which the person carries on business as a landlord;

(

e) by leaving a copy of the document at the person's residence

with an adult person who apparently resides with the person to be served;

(

f) by leaving a copy of the document in a mailbox or mail slot at

the address at which the person resides or, if the person is a landlord, at the address at

which the person carries on business as a landlord;

(

g) by attaching a copy of the document to a door or other

conspicuous place at the address at which the person resides or, if the person is a

landlord, at the address at which the person carries on business as a landlord;

(

h) by transmitting a copy of the document to the fax number

provided as an address for service by the person to be served.

Deemed or substitutional service

(1) A document served under

section 86 or 87 is deemed

to have been received

(

a) if served by mail, on the fifth day after mailing it,

(

b) if served by fax, on the third day after faxing it,

(

c) if served by attaching a copy of the document to a door or

other place, on the third day after attaching it, or

(

d) if served by leaving a copy of the document in a mail box or

mail slot, on the third day after leaving it.

(2) Despite sections 86 and 87, an arbitrator or court may make

the following orders:

(

a) that a document must be served in a manner the arbitrator or

the court considers necessary;

(

b) that a document has been sufficiently served for the purposes

of this Act on a day the arbitrator or the court determines;

(

c) that a document not served in accordance with

section 86 or 87

has been sufficiently served for purposes of this Act if the person on whom it is to be

served receives it and is aware of its nature.

Section 89 (1) is amended by striking out "$2 000."

and substituting "$5 000."

Section 90 (2) is amended

(

a) by repealing paragraph (

j) and substituting the following:

(

j) respecting matters related to the review of arbitrations,

including fees; ,

(

b) in paragraph (

p) by striking out "manufactured home park"

and substituting "manufactured home pad" , and

(

c) in paragraph (

r) by striking out "manufactured homes"

and substituting "manufactured home pads" .

Section 90 (5) is repealed and the following substituted:

(5) The Lieutenant Governor in Council may make regulations as

follows:

(

a) prescribing the form of notice for use under

section 24 (3);

(

b) prescribing the form of statement for use under

section 25

(2);

(

c) setting the inflation adjustment factor or providing a formula

to determine the inflation adjustment factor;

(

d) prescribing a formula referred to but not set out in the Act;

(

e) respecting the calculation of a justifiable rent increase

including different criteria and formulas for that calculation by different classes of

landlords.

22 The Supplement to the Act is repealed.

Consequential Amendment

Attorney General Statutes Amendment Act, 1998

Section 9 of the Attorney General Statutes Amendment Act, 1998, S.B.C. 1998,

c. 23, is repealed.

Transition provisions

24 If a decision is made by an arbitrator under the Residential

Tenancy Act before the coming into force of the re-enactment of

section 59 of the Residential

Tenancy Act by this Bill, the review of the arbitrator's decision must proceed

(

a) if the application for review is filed before the coming into

force of the amendments, under the Residential Tenancy Act as it was before the

coming into force of the amendments, or

(

b) if the application for review is filed after the coming into

force of the amendments, under the Residential Tenancy Act as amended.

Commencement

25 This Act comes into force by regulation of the

Lieutenant Governor in Council.

Explanatory Notes

SECTION 1: [Residential Tenancy Act, amends

section 1] adds a definition

of "director" and repeals the

definitions of "registrar" and

"review panel".

SECTION 2: [Residential Tenancy Act, enacts

section 3.1] clarifies the

responsibilities of the director and provides a power to delegate the director's powers

and duties.

SECTION 3: [Residential Tenancy Act, amends sections 22 (6) and (7) (a), 25 (1)

(a), 49 (1) to (3) and (6), 50 (1), 51 (1), 52 (4) and (5), 53, 55 (1) (a), 57 (5) (b),

91.1] is consequential to the new definition of "director".

SECTION 4: [Residential Tenancy Act, amends

section 22 (8)] re-enacts a

subsection to substitute "director" for a reference to the "registrar or a

person authorized by the registrar" and adds a power for the director to vary or

cancel an order under

section 22 (8) of the Act.

SECTION 5: [Residential Tenancy Act, re-enacts

section 26] streamlines

the calculation of the justifiable rent increase.

SECTION 6: [Residential Tenancy Act, amends

section 27] is consequential

to the re- enactment of

section 26 of the Act by this Bill.

SECTION 7: [Residential Tenancy Act, amends sections 49 (5) and 50 (2)]

is consequential to the repeal of the definition of "registrar" and substitution

of a definition of "director".

SECTION 8: [Residential Tenancy Act, amends

section 50 (1)] adds to the

director's power to make rules of procedure for arbitrations a similar power to make rules

for arbitration reviews.

SECTION 9: [Residential Tenancy Act, amends

section 53] is consequential

to the new definition of "director".

SECTION 10: [Residential Tenancy Act, repeals

section 54 (3)] is

consequential to the repeal of

section 88 (5) and its replacement by

section 88 (2).

SECTION 11: [Residential Tenancy Act, amends

section 55] repeals

provisions from

section 55 so that they can be re-enacted and expanded as new

section

57.1.

SECTION 12: [Residential Tenancy Act, amends

section 57] amends

section

57 to

re-enact provisions respecting time within which an arbitrator must give

a decision,

eliminate confusion over which documents need to be served before they can

be filed for enforcement in the Provincial Court, and

SECTION 13: [Residential Tenancy Act, enacts

section 57.1] re-enacts and

expands provisions from

section 55 that describe the arbitrator's powers to correct errors

or omissions after a decision is made.

SECTION 14: [Residential Tenancy Act, re-enacts sections 59 to 64] enacts

a new process for the review of orders or decisions of arbitrators.

SECTION 15: [Residential Tenancy Act, amends

section 71 (3) and (4)]

changes the time limits from 30 days to 60 days.

SECTION 16: [Residential Tenancy Act, amends

section 77] updates the

cross reference.

SECTION 17: [Residential Tenancy Act, repeals

section 85 (6)] leaves

service of documents in a court proceeding to be governed by the Rules of Court.

SECTION 18: [Residential Tenancy Act, re-enacts sections 86 to 88]

streamlines and simplifies the service of document provisions in the Residential

Tenancy Act and provides for additional methods of service.

SECTION 19: [Residential Tenancy Act, amends

section 89 (1)] parallels

amendments made to

section 89 (2) to (5) by the Residential Tenancy Amendment Act, 1994 ,

that raised all fines to $5 000.

SECTION 20: [Residential Tenancy Act, amends

section 90 (2)] re-enacts

the power to make regulations respecting the review of arbitrations and clarifies that the

regulation making power applies only to rental pads, not to the rental of a home and pad

under the same tenancy agreement.

SECTION 21: [Residential Tenancy Act, repeals and replaces

section 90 (5)]

is consequential to the re-enactment of

section 26 of the Act by this Bill.

SECTION 22: [Residential Tenancy Act, repeals the Supplement] repeals not

in force obsolete amendments.

Attorney General Statutes Amendment Act, 1998

SECTION 23: [Attorney General Statutes Amendment Act, 1998, repeals

section 9]

is consequential to the enactment of new

section 60 of the Act by this Bill.

SECTION 24: [Residential Tenancy Act, transitional] provides for

transition.

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