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Difference between revisions of "Dispute Resolution in Residential Tenancies (19:X)"
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Dispute Resolution in Residential Tenancies (19:X) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= August 10, 2021}} | ||
{{LSLAP Manual TOC|expanded = landlord}} | {{LSLAP Manual TOC|expanded = landlord}} | ||
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The formal dispute resolution process may be avoided in cases where the application of the law is clear if an Information Officer is willing to phone one of the parties in order to explain the law. 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. | The formal dispute resolution process may be avoided in cases where the application of the law is clear if an Information Officer is willing to phone one of the parties in order to explain the law. 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. However, if the issue is one where an Information Officer can assist, that can be a faster and lower-conflict solution to a dispute. | ||
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, advocate, or lawyer. The Arbitrator may require a representative to provide proof of their appointment to represent a party and may adjourn a dispute resolution hearing for this purpose. To understand the procedure, advocates should read the dispute resolution Rules of Procedure that are available on the Residential Tenancy Branch website (https://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/rop.pdf). | 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, advocate, or lawyer. The Arbitrator may require a representative to provide proof of their appointment to represent a party and may adjourn a dispute resolution hearing for this purpose. To understand the procedure, advocates should read the dispute resolution Rules of Procedure that are available on the Residential Tenancy Branch website (https://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/rop.pdf). These Rules of Procedure are revised occasionally, be sure that you are relying on the most up to date version. | ||
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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 decisions of other Arbitrators 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)). | 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 decisions of other Arbitrators 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)). | ||
===''' 2. Joint Hearings '''=== | |||
The RTB cannot make orders for landlords and tenants not participating in a hearing, so class action lawsuits do not exist for RTB hearings. However, tenants can seek a joint hearing where they can join their claims into a single hearing. If several tenants seek a joint hearing, under the RTA, they must apply separately for Dispute Resolution and then submit an application to join their claims together. The scheduled hearing date may then be a preliminary hearing to allow the parties a chance to argue why the matters should or should not be joined, or an Arbitrator may decide to immediately hear the cases jointly without the consent of the landlord. | |||
==''' B. Dispute Resolution Procedure '''== | ==''' B. Dispute Resolution Procedure '''== | ||
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A landlord or tenant who wants a government-appointed Arbitrator to settle a dispute must complete an Application for Dispute Resolution. Most applications for dispute resolution are filed online through the RTB website. Applicants can also apply in person by submitting a paper application for dispute resolution form in person at the RTB office or any Service BC office. 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. | A landlord or tenant who wants a government-appointed Arbitrator to settle a dispute must complete an Application for Dispute Resolution. Most applications for dispute resolution are filed online through the RTB website. Applicants can also apply in person by submitting a paper application for dispute resolution form in person at the RTB office or any Service BC office. 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 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 may be paid for over the Internet with a credit card or an online debit card, but if you wish to apply for a fee waiver you must also upload proof of income through the Online Portal, or submit it in person. The Downtown Eastside office only accepts applications where a fee waiver applies. Those offices do not handle money payments. The application will not be accepted until the applicant has paid $100 (by cash, or money order or certified cheque payable to the Minister of Finance) or submitted the documents required for a fee waiver. 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 a few days. The RTB created a Monetary Order Worksheet which should be completed when applying for a monetary order. The worksheet number is available online at http://bit.ly/1ToyRm9. | 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 may be paid for over the Internet with a credit card or an online debit card, but if you wish to apply for a fee waiver you must also upload proof of income through the Online Portal, or submit it in person. The Downtown Eastside office only accepts applications where a fee waiver applies. Those offices do not handle money payments. The application will not be accepted until the applicant has paid $100 (by cash, or money order or certified cheque payable to the Minister of Finance) or submitted the documents required for a fee waiver. 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 a few days. The RTB created a Monetary Order Worksheet which should be completed when applying for a monetary order. The worksheet number is available online at http://bit.ly/1ToyRm9. | ||
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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). | 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). | ||
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====''' d) Evidence '''==== | ====''' d) 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, delivered in person to any ServiceBC office, or RTB office in Burnaby, or uploaded online at https://tenancydispute.gov.bc.ca/DisputeAccess/#access | If possible, it is best to include all evidence with the initial application. However, if this is not possible, the RTB and the respondent 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 by the RTB and the applicant no less than 7 days prior to the hearing. Evidence can be faxed to the RTB at 1-866-341-1269, delivered in person to any ServiceBC office, or RTB office in Burnaby, or uploaded online at https://tenancydispute.gov.bc.ca/DisputeAccess/#access | ||
Digital evidence must be provided to the RTB on a USB memory stick, CD or DVD for their permanent files and must also be accompanied by a printed description, or they can be uploaded online with the online application or at the Dispute Access Site. Evidence does not need to be presented in print form but should be organized in a way so that the Arbitrator and other parties can easily refer to it during the hearing. | Digital evidence must be provided to the RTB on a USB memory stick, CD or DVD for their permanent files and must also be accompanied by a printed description, or they can be uploaded online with the online application or at the Dispute Access Site. Evidence does not need to be presented in print form but should be organized in a way so that the Arbitrator and other parties can easily refer to it during the hearing. | ||
The Arbitrator will usually refuse to look at anything not exchanged in advance of the hearing, but might accept the evidence subject to the following rules: | |||
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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 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'''. However, Rule 3.17 requires that both parties must have the opportunity to be heard on the question of prejudice arising from accepting late evidence. In ''Khan v Savino'', 2020 BCSC 555, the applicant was late to the 14-day deadline by one day but the arbitrator failed to seek submissions regarding prejudice arising from accepting the late evidence from both parties at the hearing. This was a ground for voiding the result at the dispute resolution and returning the decision to the RTB for re-determination. | ||
The RTB’s definition of “days” is as follows, taken from page 4 of the Dispute Resolution Rules of Procedure, located on the RTB’s website at | The RTB’s definition of “days” is as follows, taken from page 4 of the ''Dispute Resolution Rules of Procedure'', located on the RTB’s website at | ||
https://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/rop.pdf | https://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/rop.pdf | ||
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Neither the police nor the RCMP has the authority to evict tenants. However, a court bailiff can forcibly evict a tenant on behalf of the landlord. The police may attend the occasion to prevent the breach of peace but they cannot play any role in evicting the tenant; however, the police will attend and remove the tenant if required to do so by the court bailiff. | Neither the police nor the RCMP has the authority to evict tenants. However, a court bailiff can forcibly evict a tenant on behalf of the landlord. The police may attend the occasion to prevent the breach of peace but they cannot play any role in evicting the tenant; however, the police will attend and remove the tenant if required to do so by the court bailiff. | ||
===''' 3. Non-Compliance '''=== | |||
Under s 87(3) and s 87(4) of the ''RTA'', administrative penalties of up to $5,000 per day may be imposed against landlords for contravening the ''RTA'', the Regulations, or an order. Administrative penalties are rarely, if ever, imposed and according to the RTB guidelines, such penalties are to be used only in response to “serious, repeated non-compliance.” | |||
==''' D. Serving Documents: Giving and Receiving Notice under the RTA '''== | ==''' D. Serving Documents: Giving and Receiving Notice under the ''RTA'' '''== | ||
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Persons can be served anywhere the person serving has legal access to, including in public streets and other publicly- or privately-owned areas open to the public. | Persons can be served anywhere the person serving has legal access to, including in public streets and other publicly- or privately-owned areas open to the public. | ||
====''' b) Registered Mail '''==== | ====''' b) Registered Mail '''==== | ||
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:NOTE: Martin v. Barnett, 2015 BCSC 426 stands for the principle that a party must exhaust statutory review procedures before bringing an application for judicial review, but where the RTB does not have the power on reconsideration to encompass the alleged error (i.e. where the alleged error does not fall within one of the three grounds for Review Consideration), then reconsideration cannot be considered an adequate alternative to judicial review, and a party is permitted to proceed directly to judicial review. Where the error does fall within the reconsideration power of the RTB, the party must bring a reconsideration application. If they are dissatisfied with that result, a party can judicially review the review consideration decision. Wang v. Hou, 2019 CBC 353 adds that procedural fairness issues that cannot be raised on reconsideration can be the basis for independent judicial review of both original decisions and review consideration decisions if either raise procedural fairness issues. | :NOTE: ''Martin v. Barnett'', 2015 BCSC 426 stands for the principle that a party must exhaust statutory review procedures before bringing an application for judicial review, but where the RTB does not have the power on reconsideration to encompass the alleged error (i.e. where the alleged error does not fall within one of the three grounds for Review Consideration), then reconsideration cannot be considered an adequate alternative to judicial review, and a party is permitted to proceed directly to judicial review. Where the error does fall within the reconsideration power of the RTB, the party must bring a reconsideration application. If they are dissatisfied with that result, a party can judicially review the review consideration decision. ''Wang v. Hou'', 2019 CBC 353 adds that procedural fairness issues that cannot be raised on reconsideration can be the basis for independent judicial review of both original decisions and review consideration decisions if either raise procedural fairness issues. | ||
===''' 2. Time Limits for Launching a Review '''=== | ===''' 2. Time Limits for Launching a Review '''=== | ||
There are strict time limits in the RTA for launching a review. For orders of possession (s 54, 55, 56, 56.1), unreasonable withholding of consent (s 34 (2)) and notice to end tenancy for non-payment of rent (s 46) the time limit is two days. For a notice to end a tenancy agreement other than under s 46, repairs or maintenance under s 32, and services or facilities under s 27, the time limit is five days. For other orders, the time limit is 15 days (RTA s 80). | There are strict time limits in the ''RTA'' for launching a review. For orders of possession (s 54, 55, 56, 56.1), unreasonable withholding of consent (s 34 (2)) and notice to end tenancy for non-payment of rent (s 46) the time limit is two days. For a notice to end a tenancy agreement other than under s 46, repairs or maintenance under s 32, and services or facilities under s 27, the time limit is five days. For other orders, the time limit is 15 days (''RTA'' s 80). | ||
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Complaints can also be made to the BC Ombudsperson. More information can be found at www.ombudsman.bc.ca. Note that the BC Ombudsperson does not review decisions; they can only investigate complaints where a person feels that RTB staff has treated them unfairly. | Complaints can also be made to the BC Ombudsperson. More information can be found at www.ombudsman.bc.ca. Note that the BC Ombudsperson does not review decisions; they can only investigate complaints where a person feels that RTB staff has treated them unfairly. | ||
== '''E. Compliance and Enforcement''' == | |||
Recently, the RTB has established a Compliance and Enforcement Unit to conduct investigations of repeated or serious non-compliance with tenancy laws or orders of the Residential Tenancy Branch, issue warnings to ensure compliance and if necessary, administer monetary penalties. | |||
The Compliance and Enforcement Unit only handles cases in which all attempts to resolve the issue through the RTB has been made, yet there is still no compliance. Usually, the first step that the unit takes would be simply informing the parties of their responsibilities. For continued non-compliance, fines of up to $5000 per day may be levied. | |||
Example of matters that the unit investigates: | |||
* Renters repeatedly not paying rent | |||
* Landlords repeatedly attempting to evict renters illegally | |||
* Refusal to complete health and safety repairs; and | |||
* Illegal rent increases | |||
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