Dispute Resolution in Residential Tenancies (19:XII): Difference between revisions

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A landlord may make a Direct Request for an order of possession when he or she has issued a 10 day notice to end tenancy for non-payment of rent, and the tenant has neither paid the rent  nor  contested  the  notice.  An  order  can  then  be  granted  without  the  need  for  a participatory  hearing. The  Direct  Request  process  may be expanded,  in  the future,  to  cover other  circumstances  where  a  landlord  serves  a  notice  to end  tenancy.  Check  on  the  RTB website for  updates.  Because  of  the  Direct  Request  process it is very important  that  tenants never ignore a notice to end tenancy.
A landlord may make a Direct Request for an order of possession when he or she has issued a 10 day notice to end tenancy for non-payment of rent, and the tenant has neither paid the rent  nor  contested  the  notice.  An  order  can  then  be  granted  without  the  need  for  a participatory  hearing. The  Direct  Request  process  may be expanded,  in  the future,  to  cover other  circumstances  where  a  landlord  serves  a  notice  to end  tenancy.  Check  on  the  RTB website for  updates.  Because  of  the  Direct  Request  process it is very important  that  tenants never ignore a notice to end tenancy.


19-37NOTE:              It  is  possible  that  a  tenant  will  receive  a  Notice  of  Direct  Request  in circumstances where they should receive a hearing (e.g. all arrears paid in 5  days,  application  for  dispute  resolution  filed,  legitimate  dispute  on merits). In such a case, it is imperative that the tenant immediately write to the  RTB  and  request  a  dispute  resolution  hearing.  The  tenant  should explain  why  their  case  is  not  appropriately  addressed  through  the  direct request process. 3.The Dispute Resolution Hearing Hearings  are  a  formal  process,  though  less  formal  than  court.  The  RTB  uses  the  dispute resolution  Rules  of  Procedure,  which  are  online  at  http://bit.ly/1Igbqmg. The  Information Officer  may  assist  landlords  and  tenants  by  providing  information  about  the  procedure  for resolving disputes, but will not help complete forms. An Arbitrator may make any finding of fact  or law  that is  necessary  or  incidental  to  making  a  decision  or  an  order under  the  RTA. The  Arbitrator  makes  decisions  based  on  the  merits  of  the  case  and  is  not  bound  by previous Arbitrator decisions but is bound by court decisions. The Arbitrator considers all of the evidence  and  makes  a  decision  based  on  the  RTA,  the common  law,  and  the facts.  The hearings  are  generally  informal  and  parties  may  speak  for themselves  or  through representation. Since hearings deal with specific issues that the applicant raised in his or her application, the Arbitrator will not consider issues that are not contained in the application. The  dispute  resolution  policy  guidelines  are  also  available  online.  These  are  useful  for preparing for a hearing, but they are NOT binding on Arbitrators.  Most RTB hearings are now conducted via telephone. However, there are still some face-to-face hearings. a)Telephone Hearings Parties  should  use  a  landline  telephone  in  a  quiet  place  where  they  will  not  be interrupted  and  avoid  dropping  the call  on  their cell  phone. Parties  should  not  try to call more than 5 minutes before the start of the hearing, as they will most likely not get through. The same is true if a party tries to call in more than 5 minutes after a hearing has started. The hearing will proceed even if one party gets disconnected during  the  call.  It  is  important  that  parties  check  they  have  the  correct  telephone code.  If  a  hearing  has  been  adjourned  or  continued  from  an  earlier  hearing,  the code will be different than the previous one.  Telephone  hearings  are  scheduled  for  one  hour  exactly.  If  the  hearing  is  not finished  at  this  time,  the  Arbitrator  may  extend  the  hearing  or  schedule  another conference call to continue the hearing. This may be several weeks or months after the first  hearing.  It is  important  that  parties  be  focused  on  the  outcome  they  wish to  achieve  and  that  their  documents  are  carefully  numbered  so  that  time  is  not wasted searching for documents and other evidence.  b)Face-to-Face Hearings All evidence should be submitted prior to the hearing, since adjournments will not be granted without good cause. Evidence can be in the form of: a)any witnesses who provide relevant information; b)all documents including letters, receipts, photographs; and
'''NOTE:'''               It  is  possible  that  a  tenant  will  receive  a  Notice  of  Direct  Request  in circumstances where they should receive a hearing (e.g. all arrears paid in 5  days,  application  for  dispute  resolution  filed,  legitimate  dispute  on merits). In such a case, it is imperative that the tenant immediately write to the  RTB  and  request  a  dispute  resolution  hearing.  The  tenant  should explain  why  their  case  is  not  appropriately  addressed  through  the  direct request process.  
 
=== 3. The Dispute Resolution Hearing ===
 
Hearings  are  a  formal  process,  though  less  formal  than  court.  The  RTB  uses  the  dispute resolution  Rules  of  Procedure,  which  are  online  at  http://bit.ly/1Igbqmg. The  Information Officer  may  assist  landlords  and  tenants  by  providing  information  about  the  procedure  for resolving disputes, but will not help complete forms. An Arbitrator may make any finding of fact  or law  that is  necessary  or  incidental  to  making  a  decision  or  an  order under  the  RTA. The  Arbitrator  makes  decisions  based  on  the  merits  of  the  case  and  is  not  bound  by previous Arbitrator decisions but is bound by court decisions. The Arbitrator considers all of the evidence  and  makes  a  decision  based  on  the  RTA,  the common  law,  and  the facts.  The hearings  are  generally  informal  and  parties  may  speak  for themselves  or  through representation. Since hearings deal with specific issues that the applicant raised in his or her application, the Arbitrator will not consider issues that are not contained in the application.  
 
The  dispute  resolution  policy  guidelines  are  also  available  online.  These  are  useful  for preparing for a hearing, but they are '''NOT''' binding on Arbitrators.  Most RTB hearings are now conducted via telephone. However, there are still some face-to-face hearings.  
 
==== a) Telephone Hearings ====
 
Parties  should  use  a  landline  telephone  in  a  quiet  place  where  they  will  not  be interrupted  and  avoid  dropping  the call  on  their cell  phone. Parties  should  not  try to call more than 5 minutes before the start of the hearing, as they will most likely not get through. The same is true if a party tries to call in more than 5 minutes after a hearing has started. The hearing will proceed even if one party gets disconnected during  the  call.  It  is  important  that  parties  check  they  have  the  correct  telephone code.  If  a  hearing  has  been  adjourned  or  continued  from  an  earlier  hearing,  the code will be different than the previous one.   
 
Telephone  hearings  are  scheduled  for  one  hour  exactly.  If  the  hearing  is  not finished  at  this  time,  the  Arbitrator  may  extend  the  hearing  or  schedule  another conference call to continue the hearing. This may be several weeks or months after the first  hearing.  It is  important  that  parties  be  focused  on  the  outcome  they  wish to  achieve  and  that  their  documents  are  carefully  numbered  so  that  time  is  not wasted searching for documents and other evidence.   
 
==== b) Face-to-Face Hearings ====
 
All evidence should be submitted prior to the hearing, since adjournments will not be granted without good cause. Evidence can be in the form of:  
*a) any witnesses who provide relevant information;  
*b) all documents including letters, receipts, photographs; and
*c) affidavits (sworn statements in writing).
 
==== c) Evidence ====
 
If possible, it is best to include all evidence with the initial application. However, if this is not possible, the RTB must receive a copy of all of the applicant’ s evidence no  less  than  14  days  prior  to  the  hearing;  the  respondent’ s  evidence  must  be received no less than 7 days prior to the hearing. Evidence can be faxed to the RTB at  1-866-341-1269.  Rule  3.14  is  particularly important here.  It states  that copies  of any  documents  not  filed  with  the  application,  but  which the  applicant  wishes  to present as evidence at the hearing, should be filed with the RTB and served on the respondent as soon as possible, and not less than 14 days prior to the hearing. This includes  documents,  photos,  videos,  audio  tapes,  and  the  like.  To  rely  on  digital evidence  (photos,  videos  or  audio), per  rule  3.10,  a  party  must first  check  whether the other party and the RTB are able to access the digital evidence. Digital evidence must  be  provided  to  the  RTB  on  USB  memory  stick,  CD or  DVD  for  their permanent files and must also be accompanied by a printed description. Each party must  also  deliver  a  copy  of  all  evidence  to  the  RTB  and  the  other  party  in accordance  with  Rule  3.14  as  above.  The  Arbitrator  will  usually  refuse  to  look  at anything  not  exchanged  in  advance  of  the  hearing  pursuant  to  Rule  3.17,  which says  that  if  the  documents  or  other  evidence  are  not  served  on  the  other  party  as required: a)the party must show that the evidence is relevant and that it was not available at the time they filed or when they served their other evidence; b)the Arbitrator has discretion to determine whether to accept the evidence if it does  not  unreasonably  prejudice  the  other  party,  and  both parties  must  have the opportunity to be heard as to whether the evidence ought to be accepted; c)if the evidence is accepted, the other party will have an opportunity to review it,  therefore  the  Arbitrator  must  rule  whether  to  adjourn,  in  accordance  with Rule 6.3 and 6.4 which establish the criteria for adjourning a hearing. The practical result of these rules is that Arbitrators will often refuse to look at any evidence that was not exchanged before the hearing as required. The RTB’ s definition of “days” is as follows, taken from the Dispute Resolution Rules of Procedure, located on the RTB’ s website at  www.rto.gov.bc.ca/documents/RoP.pdf  a)If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday b)If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open c)In the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded d)In the calculation of time not referred to in subsection (c), the first day must be excluded and the last day included

Revision as of 05:50, 3 July 2016



A. General

The formal dispute resolution process may be avoided if an Information Officer is willing to phone one of the parties in order to explain the law, resulting in the dispute being resolved without the parties having to go through the dispute resolution process. For example, an Information Officer might call a landlord and tell him or her that landlords are required by law to provide rent receipts if the tenant pays rent in cash. The Information Officer will not take on the role of an Arbitrator and will only explain the Legislation.

Dispute resolution is the formal method of resolving disputes between landlords and tenants. Any party going to dispute resolution may be represented by an agent (e.g. a law student), barrister, or solicitor, and should advise the RTB of this before the hearing. The Arbitrator may exclude an agent if proper notification was not provided. To understand the procedure, advocates should read the dispute resolution Rules of Procedure that are available on the Residential Tenancy Branch web site.

1. Disputes Covered by Dispute Resolution

Virtually all claims that may arise between tenants and landlords are eligible for dispute resolution (see RTA, s 58). A court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted to dispute resolution under the RTA. The exceptions are as follows:

  • the application was not filed within the application period specified under the RTA;
  • the dispute is linked substantially to a matter that is before the Supreme Court; or
  • the monetary claim exceeds the monetary limit prescribed in the Small Claims Act, RSBC 1996, c. 430, s 3. (Currently the monetary limit is $25,000.)

2. Arbitrator

Arbitrators are like judges and base their decisions on evidence and arguments presented by the parties at the dispute resolution hearing. The Arbitrator is not bound by other Arbitrator’s decisions but is bound by legal precedent established by the court. The Arbitrator makes the decision based on the merits of the case. An Arbitrator has authority to arbitrate disputes referred by the director to the Arbitrator, and any matters related to disputes that arise under the RTA or a tenancy agreement. Arbitrators may assist the parties, or offer the parties an opportunity to settle their dispute. They can record agreements reached by the parties, sign off on the agreement, and record the settlement order. Except as otherwise provided by the RTA, a decision of the director is final and binding (s 77(3)).

B. Dispute Resolution Procedure

1. Applying for Dispute Resolution

A landlord or tenant who wants a government-appointed Arbitrator to settle a dispute must complete an Application for Dispute Resolution form. The form is available at an RTB office or a Service BC office or online at the RTB website. Note that there are separate forms for the landlord and the tenant. An applicant who is a tenant would fill in and include:

  • his or her legal name and current address;
  • the address and legal name of the owner of the property (the landlord);
  • the rental unit noted in the tenancy agreement;
  • the relevant code of the RTA that deals with the problem (these are provided on the back of the dispute resolution form);
  • the part of the form that says “Details of the Dispute”. It is better to write down too much than too little, since insufficient information could be grounds for the respondent to request an adjournment; however, save specific details for the hearing;
  • that he or she wants the landlord to pay back the $50 filing fee; and
  • copies of the background material being provided as evidence for the case.

NOTE:

  • Rule 3 of the RTB Rules of Procedure (Ministry of Housing, 2005; available at http://bit.ly/1Igbqmg sets out how to serve the Application for Dispute Resolution, and how to submit and exchange documents. the time limits within which the parties and the Arbitrator must receive the documents to be used as evidence at the hearing. For applicants, the easiest way to comply with this rule is to attach all relevant documents to the initial application form. Evidence can be faxed to the RTB at 1-866-341-1269. (Applications cannot be submitted via fax).
  • Rule 3.14 governs evidence not submitted with the Application, and sets out that such evidence must be received by the other party and the Branch not less than 14 days before the hearing. In calculating the 14 days, the first and last day must be excluded. If the due date for service to the Branch falls on a day the office is closed, the limit is extended to the next day the office is open. If the date for service to the other party falls on a holiday, the limit is extended to the next non-holiday day. If evidence is not available within the deadline for service, under Rule 3.17 the Arbitrator has the discretion to determine whether or not to accept it.
  • You should also take special notice of the rules regarding how days of service are calculated. Documents sent by mail are deemed “received” five days later, while documents dropped through a mail slot or taped to a door are deemed “received” three days later. Please note that the RTB does not copy evidence for parties. See the Rules for further information.

An Information Officer at the RTB must check the form. This is best done in person. Clients who cannot go to an RTB office can file applications at a local Service BC office. Online applications require a credit card payment, so parties applying to waive the filing fee cannot use this method. The Richards Street and Downtown Eastside offices only accept applications where a fee waiver applies. Those offices do not handle money payments. The application will not be accepted until the applicant has paid $50 (by cash, or money order or certified cheque payable to the Minister of Finance). Any corrections or clarifications will need to be completed as well. People on income assistance or whose incomes fall below the low-income guidelines can apply to have the fee waived if they provide proof of their income status. The applicant is usually informed of the date of the hearing within 24 hours. The RTB created a Monetary Order Worksheet which must be completed when applying for a monetary order. The worksheet number is available online at: http://bit.ly/1ToyRm9.

The limitation period for designation of an Arbitrator (i.e. for filing the claim at the RTB) is two years from the end of the tenancy to which the dispute relates (RTA, s 60).

2. Direct Request

A landlord may make a Direct Request for an order of possession when he or she has issued a 10 day notice to end tenancy for non-payment of rent, and the tenant has neither paid the rent nor contested the notice. An order can then be granted without the need for a participatory hearing. The Direct Request process may be expanded, in the future, to cover other circumstances where a landlord serves a notice to end tenancy. Check on the RTB website for updates. Because of the Direct Request process it is very important that tenants never ignore a notice to end tenancy.

NOTE: It is possible that a tenant will receive a Notice of Direct Request in circumstances where they should receive a hearing (e.g. all arrears paid in 5 days, application for dispute resolution filed, legitimate dispute on merits). In such a case, it is imperative that the tenant immediately write to the RTB and request a dispute resolution hearing. The tenant should explain why their case is not appropriately addressed through the direct request process.

3. The Dispute Resolution Hearing

Hearings are a formal process, though less formal than court. The RTB uses the dispute resolution Rules of Procedure, which are online at http://bit.ly/1Igbqmg. The Information Officer may assist landlords and tenants by providing information about the procedure for resolving disputes, but will not help complete forms. An Arbitrator may make any finding of fact or law that is necessary or incidental to making a decision or an order under the RTA. The Arbitrator makes decisions based on the merits of the case and is not bound by previous Arbitrator decisions but is bound by court decisions. The Arbitrator considers all of the evidence and makes a decision based on the RTA, the common law, and the facts. The hearings are generally informal and parties may speak for themselves or through representation. Since hearings deal with specific issues that the applicant raised in his or her application, the Arbitrator will not consider issues that are not contained in the application.

The dispute resolution policy guidelines are also available online. These are useful for preparing for a hearing, but they are NOT binding on Arbitrators. Most RTB hearings are now conducted via telephone. However, there are still some face-to-face hearings.

a) Telephone Hearings

Parties should use a landline telephone in a quiet place where they will not be interrupted and avoid dropping the call on their cell phone. Parties should not try to call more than 5 minutes before the start of the hearing, as they will most likely not get through. The same is true if a party tries to call in more than 5 minutes after a hearing has started. The hearing will proceed even if one party gets disconnected during the call. It is important that parties check they have the correct telephone code. If a hearing has been adjourned or continued from an earlier hearing, the code will be different than the previous one.

Telephone hearings are scheduled for one hour exactly. If the hearing is not finished at this time, the Arbitrator may extend the hearing or schedule another conference call to continue the hearing. This may be several weeks or months after the first hearing. It is important that parties be focused on the outcome they wish to achieve and that their documents are carefully numbered so that time is not wasted searching for documents and other evidence.

b) Face-to-Face Hearings

All evidence should be submitted prior to the hearing, since adjournments will not be granted without good cause. Evidence can be in the form of:

  • a) any witnesses who provide relevant information;
  • b) all documents including letters, receipts, photographs; and
  • c) affidavits (sworn statements in writing).

c) Evidence

If possible, it is best to include all evidence with the initial application. However, if this is not possible, the RTB must receive a copy of all of the applicant’ s evidence no less than 14 days prior to the hearing; the respondent’ s evidence must be received no less than 7 days prior to the hearing. Evidence can be faxed to the RTB at 1-866-341-1269. Rule 3.14 is particularly important here. It states that copies of any documents not filed with the application, but which the applicant wishes to present as evidence at the hearing, should be filed with the RTB and served on the respondent as soon as possible, and not less than 14 days prior to the hearing. This includes documents, photos, videos, audio tapes, and the like. To rely on digital evidence (photos, videos or audio), per rule 3.10, a party must first check whether the other party and the RTB are able to access the digital evidence. Digital evidence must be provided to the RTB on USB memory stick, CD or DVD for their permanent files and must also be accompanied by a printed description. Each party must also deliver a copy of all evidence to the RTB and the other party in accordance with Rule 3.14 as above. The Arbitrator will usually refuse to look at anything not exchanged in advance of the hearing pursuant to Rule 3.17, which says that if the documents or other evidence are not served on the other party as required: a)the party must show that the evidence is relevant and that it was not available at the time they filed or when they served their other evidence; b)the Arbitrator has discretion to determine whether to accept the evidence if it does not unreasonably prejudice the other party, and both parties must have the opportunity to be heard as to whether the evidence ought to be accepted; c)if the evidence is accepted, the other party will have an opportunity to review it, therefore the Arbitrator must rule whether to adjourn, in accordance with Rule 6.3 and 6.4 which establish the criteria for adjourning a hearing. The practical result of these rules is that Arbitrators will often refuse to look at any evidence that was not exchanged before the hearing as required. The RTB’ s definition of “days” is as follows, taken from the Dispute Resolution Rules of Procedure, located on the RTB’ s website at www.rto.gov.bc.ca/documents/RoP.pdf a)If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday b)If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open c)In the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded d)In the calculation of time not referred to in subsection (c), the first day must be excluded and the last day included