Dispute Resolution in Residential Tenancies (19:X)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 1, 2022.|
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 them 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. These Rules of Procedure are revised occasionally, be sure that you are relying on the most up to date version.
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 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 $35,000.)
- As well, the RTB is specifically excluded, pursuant to section 5.1 of the RTA, from considering the following:
- Questions of constitutional law, and
- Issues arising out of the BC Human Rights Code
- NOTE: Some issues that may apparently be under the exclusive jurisdiction of the RTA may still be grounded in a different source of law. In such cases, a tenant may be able to elect to proceed with their claim either as an RTB dispute or as a different kind of civil claim that falls under the inherent jurisdiction of another court. For example, if a tenant’s claim can be successfully characterized as a claim in negligence, they may be permitted to proceed with an action in Supreme
- NOTE: One may make an application to the RTB for disputes in relation to the rights, obligations, and prohibitions set out in Parts 2 and 3 of Ministerial Order 89 of 2020 as well as Parts 2 and 3 of Ministerial Order 195 of 2020.
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 during a hearing. 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)).
- NOTE: Arbitrators are not required to have any formal legal training (though some may). Students intending to make legal arguments should be prepared to do so using as much plain language as possible.
3. Joint Hearings
RTA 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
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. 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.
- NOTE: At the onset of the COVID-19 Pandemic, all Service BC locations in Metro Vancouver began offering “limited services”. At that time, they stopped accepting in-person RTB applications, leaving the RTB’s Burnaby head office as the only location to make such applications. As of May 2022, these locations were still only offering limited service. Be sure to check the status of Service BC locations in Metro Vancouver before advising a client to attempt an in-person application.
If using a paper form, 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.
For more information about how to apply for dispute resolution and request a fee waiver, see https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/solving-problems/dispute-resolution
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).
a) Naming Parties on an Application
The RTB has specific rules for naming parties. These rules are of particular importance in relation to landlords who conduct their operations under a business or other name. If a tenant has a written lease, it may specify the name of the landlord, in addition to their address for service.
Individuals should be named by their full legal names. Businesses should be named using the full legal name of the business, which may include an indication of the type of legal structure the business operates under and may be a numbered corporation. Where a business carries on business under a name other than the legal name of the business, you may indicate that the party is “doing business as” the other name.
b) Amending an Application for Dispute Resolution
In certain circumstances, applications for dispute resolution that have already been submitted can be amended. Amended applications must be related to existing issues raised in the original application.
To amend an application for dispute resolution, the applicant completes the RTB-42 “Amendment to an Application for Dispute Resolution” form and submits that form along with any accompanying evidence to the RTB. Once the RTB approves the application, the applicant serves the other party with a copy of the application and supporting evidence, not less than 14 clear days before the hearing. Note that, as the application must be served on each party 14 clear days before the hearing, and it takes time to have the application approved, it is advisable to submit an application to amend as soon as possible so as to meet these deadlines.
To learn more about amending an application, see: https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online/amend-or-update-an-application
2. Direct Request
A landlord may make a Direct Request for an order of possession and/or monetary order for unpaid rent or utilities when they have issued a 10-day notice to end tenancy for non-payment of rent or utilities, 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, with only the landlord’s written submissions being considered by the Arbitrator. No evidence from any other party would be considered. The landlord can also recover the $100 application filing fee through Direct Request. Because of the Direct Request process, it is very important that tenants never ignore a notice to end tenancy. See https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/apply-online/direct-request for more details.
- 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.
Once an Order of Possession has been given to the landlord and served to the tenant after a wrongful Direct Request, the tenant should tell the landlord that they are reviewing it, so the landlord can't get a writ from BC Supreme Court; The tenant should file a Review Application to the RTB on the basis of landlord fraud and/or inability to attend the original hearing (See Section X.E: Review of Arbitrator’s Decision).
Similarly, a tenant may make a Direct Request for an order of possession and/or monetary order for outstanding deposit(s) when they gave the landlord their forwarding address in writing at the end of the tenancy, and, within 15 days after the receipt of the forwarding address, the landlord has not returned the outstanding deposit(s) or made an application to retain part or all of the deposit. See Tenant's Direct Request for more details.
3. The Dispute Resolution Hearing
Hearings are a formal process, though less formal than court. The RTB uses the dispute resolution Rules of Procedure (online at http://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/rop.pdf). 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 dispute resolution policy guidelines are also available online (https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/calculators-and-resources/policy-guidelines).
These are useful for preparing for a hearing, but Arbitrators have the discretion to decide when and how to apply Policy Guidelines. Most RTB hearings are now conducted via telephone. However, there are still some in-person or written hearings.
- NOTE: Prior to an arbitration hearing, an Information Officer may assist landlords and tenants by providing information about the procedure for resolving disputes but will not help complete forms.
a) Telephone Hearings
Parties should join the conference call in a quiet place where they will not be interrupted. 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) In-Person and Written Hearings
In-person or written hearings are rare and will generally only occur at the request of one or both parties, to account for unusual circumstances or particular needs of one or both parties. For more information on alternative hearing formats, see RTB Policy Guideline no. 44: “Format of Hearings” (online at http://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/policy-guidelines/gl44.pdf)
c) Expedited Hearings
Expedited hearings are for applications that are very urgent and if it would be unfair for the applicant to wait for a standard hearing. They are usually limited to early ending of tenancy, an order of possession for a tenant, and emergency repairs. Usually, the branch tries to schedule them for a hearing within 12 days from the date the application is made. In cases where there is evidence that violence has occurred, health and safety are severely jeopardized or there is a demonstrable immediate danger or threat, the branch may schedule it for a hearing within six days. Your evidence must be ready for submission on application. More details including how to apply are available online at: https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/solving-problems/dispute-resolution/expedited-hearings)
The RTB Rules of Procedure state that, to the extent that it is possible, an applicant must submit their evidence with their application and serve a copy of that evidence when they serve the Notice of Hearing. 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. When using page numbers, it is strongly recommended to ensure that the numbers on each page match the page numbers of the digital evidence file, as most Arbitrators tend to only have access to digital copies of the evidence during a 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:
- 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 the 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. 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 https://www2.gov.bc.ca/assets/gov/housing-and-tenancy/residential-tenancies/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
Evidence should be clearly marked and numbered so that all parties involved in a telephone conference can easily locate the relevant documents when necessary.
For a face-to-face hearing, it is still a good idea to bring extra copies of important documents to the hearing itself, in case the Arbitrator or the other party does not have copies handy. Original photos and documents that are presented to the Arbitrator cannot be returned later to the party.
If a party has filed and served a petition for judicial review in B.C. Supreme Court, the RTB will usually file an affidavit attaching the record of proceeding for the hearing, which will include copies of original photos and documents. Copies of documents can be given to the Arbitrator, but they may demand the originals.
An Arbitrator may admit as evidence anything that they consider necessary and relevant to the proceeding, even if it would be inadmissible under the traditional rules of evidence (RTA s 75).
If a witness cannot attend, the Arbitrator may accept affidavits (however, written statements may suffice) and may take testimony over the phone. If a party thinks a witness has something to contribute to their case but the witness refuses to cooperate, the party can then request in advance or at the hearing that the Arbitrator summon that witness (RTB Rules of Procedure s. 5.3 - 5.5).
The Arbitrator may then decide to adjourn the hearing and summon the witness for the hearing when it reconvenes. The party requesting the summon is required to serve it on the person being summoned. The Arbitrator also has the power to compel witnesses to give evidence under oath and/or to produce records that may be of importance to the hearing. Where a witness fails to comply with these procedures, they may be subject to a finding of contempt on application to the Supreme Court by the Arbitrator (RTA, s 76(3)).
The applicant should always bring proof of service (i.e. proof that the other side received the Notice of Hearing package) to the hearing or, for a telephone hearing, include it in the evidence the applicant submits to the RTB. The proof of service will have to be presented if the respondent does not attend – to prove that the applicant served the Notice of Hearing on the respondent. The person who served the documents should be at the hearing or should have provided an affidavit of service to the applicant.
4. The Arbitrator’s Decisions
The Arbitrator may render a decision at the end of the hearing and will make a written decision following the hearing. Pursuant to s 77(1) of the RTA, the written decision and reasons must be provided within 30 days. If a party, pursuant to s 78 of the RTA completes a form requesting correction of a technical error, omission, or clarification within 15 days of the decision being given, such amended decision or clarification must be provided within 30 days.
The Arbitrator’s order is final and binding but may be reviewed in limited circumstances (s 79).
5. Amendments to Decisions/Orders
On an Arbitrator’s initiative, or at the request of a party, the Arbitrator may correct technical errors, or within 15 days, clarify a decision, reason, or inadvertent omissions in a decision or order the Arbitrator may also require that notice of a request be given to the other party. The Arbitrator shall not exercise this power unless the Arbitrator considers it just and reasonable in the circumstances (RTA, s 78(3)). The forms to be completed are the Request for Correction or a Request for Clarification
The RTB continues to amend its Policy Guidelines on key issues under the RTA. There are now over 40 detailed RTB Policy Guidelines available that ensure more consistency in dispute resolution decisions, and which should be reviewed in preparation for any hearing. They can found online at https://www2.gov.bc.ca/gov/content/housing-tenancy/residential-tenancies/calculators-and-resources/policy-guidelines
However, Arbitrators will not be required to consult the Guidelines.
C. Enforcing the Arbitrator’s Order
- NOTE: If a successful party has any concerns about the ability to serve an order, they should request an order under RTA, s 71(1) and (2) permitting alternate means of service. An example of such an order would be one that permits serving a document at a tenant’s workplace rather than at their new home.
1. Enforcing a Monetary Order
The Arbitrator may order the tenant or landlord to pay a monetary amount or to bear all or part of the costs of dispute resolution (RTA, s 67). Enforcement of the order is the sole responsibility of the applicant. If the monetary order is in favour of a tenant still living in the rental unit owned by the landlord that the order is against, the Arbitrator may direct the tenant to deduct the award from the rent (RTA, s 65(1)(b)). Rent should not be withheld unless the decision explicitly states this is allowed. If the monetary order is in favour of a landlord still holding all or part of the security deposit paid by the tenant, it may be deducted from the tenant’s security deposit. If neither of these situations applies, one should give the other party a written request for payment stating the amount owing and requesting payment by the date on the order or within a reasonable time.
If the other party still does not pay, the order can be filed in the Small Claims Court.
2. Enforcing a Repair Order
If a landlord fails to make repairs as ordered by an Arbitrator, the tenant can apply for an order requiring compliance. The order to comply may include an order that the landlord reduces the rent until the repairs are complete.
3. Enforcing an Order of Possession
The purpose of an Order of Possession is to gain vacant possession of the rental premises. The landlord should first give a copy of the Order of Possession to each person named in the order. The best way to do this is to hand the copy to the other parties personally or by registered mail. The RTA also permits for the Order of Possession to be posted on the tenant’s door. The tenant should be asked to move out of the rental unit within the time period given in the order. If a tenant does not comply with the order, the landlord must not attempt to physically remove the tenant by their own means (RTA, s 57(2)), as this is unlawful. Bailiff services, described below, can be used to lawfully remove the tenant.
a) Use of Bailiff Services
If the tenant does not comply with the order and does not vacate the rental unit on the date specified on the order, the Order of Possession can be filed in the Supreme Court of B.C. Registry. The landlord must fill out a Writ of Possession and an Affidavit (re: service) and take these completed forms with the Order of Possession to the Supreme Court. Once the documents are filed and stamped in the Supreme Court, the landlord may contact a court bailiff service. The Writ of Possession is then ready to be executed by the court bailiff.
Under s 9 of the Sheriff Act, RSBC 1996, c. 425, the landlord is required to give a deposit to the court bailiff against the costs of the execution of the writ. This deposit varies depending on the size of the rental unit. For example, $1,100 for a one-bedroom and $3,000 for a five-bedroom house will be required as a deposit for executing a seizure.
b) Bailiff’s Procedure for Executing a Writ of Possession
The bailiff consults with the landlord to discuss attempting a “soft” eviction, which gives the tenant a chance to vacate on their own; this is generally what occurs. Tenants are generally allowed three to four days to vacate under a “soft” eviction.
If the bailiff executes a “hard” eviction, the bailiff enters the rental unit and removes the belongings, as well as the tenant if necessary. It is the responsibility of the bailiff to ensure that all of the tenant’s belongings are safe and secure in storage. The bailiff may seize the tenant’s possessions to sell in order to compensate the bailiff for the cost of the eviction.
- NOTE: Sometimes third parties who are not named in the order (i.e. roommates) have their goods seized together with the tenant’s. It is important to inform the Bailiff as soon as possible what goods do not belong to the tenant. These goods can usually be returned to the third party if they are not named in the order.
c) Role of the Police
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 a 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.
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
The rules for serving the other party with documents depend on what is being served, and who is being served. This section sets out the basics of service, but for more detail or to check the requirements for your specific situation, you may need to check the Residential Tenancy Branch’s Residential Tenancy Policy Guideline 12.
1. Service Methods
Generally, items can be served in any of the ways listed below. Some items must be served in particular ways. For details on items that must be served only in certain ways, see the relevant section below.
Different service methods are “deemed” or considered served at certain times after the date on which they are served. Note that, if there is proof that the document was actually received earlier than the date it is deemed to be received, the document may be considered received on the day it was actually received.
a) Personal Service
For tenants serving a landlord, the tenant must serve by leaving a document by leaving a copy with the landlord or landlord’s agent. For a landlord serving a tenant, the landlord must leave a copy with the tenant, and in a case with multiple tenants, with each co-tenant separately.
Personal service requires physically handing a copy of the document to the person being served, and, if the person declines the document, leaving a copy of the document near the person, and informing the person being served of the nature of the document.
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
You may serve these items by sending them by registered mail (any Canada Post service with delivery confirmation to a named person) to the address for service of the other party. For landlords, this is where the landlord lives or carries on business as a landlord. This address may be listed on the lease or other document related to the tenancy. For tenants, this is the address where the tenant resides at the time of mailing or the forwarding address provided by the tenant.
Records indicating that a person refused to accept a piece of registered mail are considered proof of service. Registered mail is deemed received on the fifth day after mailing.
c) Ordinary Mail
This method is the same as service by registered mail, except that it is sent by ordinary postal service. Ordinary mail is deemed received on the fifth day after mailing.
d) Leaving a Copy of the Document at the Person’s Residence with an Adult Person who Apparently Resides with the Person to be Served
This method involves leaving the document with a person 19 years or older who, from what can be seen, observed, and is evident from all the circumstances, resides with the person to be served. Such documents are considered personally served, and so considered served on the day they are delivered.
e) Leaving a Copy of the Document in a Mailbox or Mail Slot
This method involves leaving the document in a mailbox or mail slot. For serving tenants, this would be the place where the person to be served resides at the time of service. For landlords, this would be at the address for service identified in the tenancy agreement or on the Notice to End Tenancy the tenant is contesting, or the place where the person to be served carries on business as a landlord. You must make sure that the mailbox or mail slot actually belongs to the person being served, particularly where there are multiple boxes or slots for one building.
Documents left in a mailbox or mail slot are considered served on the third day after they are left
This method involves attaching a copy of the document to a door or other conspicuous place (a place that is clearly visible and likely to attract notice or attention). Placing a copy of the item under a door is not sufficient for service by “posting”. For serving tenants, this would be where the person resides at the time of service, and for serving landlords, this would be at the address for service identified in the tenancy agreement or on the Notice to End Tenancy the tenant is contesting, or the place where they carry on business as a landlord.
Documents served by posting are considered served on the third day after they are attached.
You can serve a party by fax if they have provided a fax number as their address for service.
Documents served by fax are considered served on the third day after faxing them.
h) Substituted Service
If none of the above options are feasible, the Residential Tenancy Branch may order another type of service. In applying for substituted service, you must show that the party being served cannot be served by any of the methods listed and that there is a reasonable expectation that they will receive the documents if served in the manner being proposed.
2. Requirements for Specific Documents
a) Application for dispute resolution or Residential Tenancy Branch decision to proceed with a review of a decision
These items, with the exception of applications by landlords for an order of possession or an order ending a tenancy early, may only be served by personal service, registered mail, or by another service method authorized by an order for substituted service.
b) Application by a landlord for an order of possession or an order ending tenancy early
These items can only be served by personal service, registered mail, posting, or by another service method authorized by an order for substituted service.
3. Address at Which the Landlord Carries on Business as a Landlord
To quote from RTB policy guideline #12: “A landlord may operate a business as a landlord from one location and operate another business from a different location. The Legislation does not permit a tenant to serve a landlord in one of the ways set out above at the address where the landlord carries on that other business unless the landlord also carries on their business as a landlord at that same address.
If the landlord disputes that they have been served in one of the permitted ways at the address where they carry on business as a landlord, or if the landlord does not attend the hearing, the tenant will have to provide sufficient evidence to the Arbitrator to prove that the address used is, in fact, the address at which the landlord carries on business as a landlord.” (BC Residential Tenancy Branch Policy Guideline no. 12: Service Provisions, BC Residential Tenancy Branch, March 2016).
The address at which the landlord carries on business as a landlord may be:
- Set out in the tenancy agreement
- The landlord’s office or resident manager’s suite in an apartment building
- The address where the landlord resides
- A separate business address in an office or storefront location.
4. Proof of Service
Where service has been affected and a party fails to appear at a hearing, the other party should be prepared to prove that service was affected.
For personal service, this can be done by having the person who actually served the other party appear as a witness at the hearing or provide a signed statement with details about service. For personal service on another adult apparently residing with the other party, details should be included about the date and time of service, identity of the person served, and description of how it was confirmed that the person apparently resides with the party being served.
For registered mail, a Canada Post tracking printout providing information about the delivery of the registered mail item and the signature of the recipient will suffice. Policy Guideline 12 states that intentional refusal to pick up registered mail does not rebut the deemed receipt provisions, so if the tracking report shows that the mail was refused by the recipient, a party should still be able to argue that the documents were properly served. Proof of service by other methods should include details about the date, time, identity of persons served, address where notice was posted, fax number or mailbox information, and any other relevant information. Photographs of service can be valuable in proving that service occurred.
E. Review of Arbitrator’s Decision
1. Application for Review of Arbitrator's Decision
Under the RTA, s 79(2), an application may be made for Review of the Decision or Order, only if:
- a) the party was not able to attend the original hearing due to circumstances that could not be anticipated and were beyond their control;
- b) there is new and relevant evidence that was not available at the time of the original hearing; or
- c) a party has evidence that the Arbitrator’s decision or order was obtained by fraud.
The Application for Review does not include an oral hearing. The written application for review must, therefore, be complete and exact, with all necessary documents attached. Note that an Application for Review is not an opportunity to re-argue the facts of the case.
- NOTE: There is a filing fee, which cannot be recovered, but which can be waived under the same circumstances for which the original application fee can be waived.
- 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
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).
A review application is not a stay of proceedings but can act as one since court enforcement of an Arbitrator decision requires the landlord/tenant applying for the enforcement to swear to court that they have confirmed with RTB that there is no review application consideration pending. A stay of proceedings can also be requested separately through the Supreme Court.
3. Successful Application for Review
If a party is successful in their Application for Review, that person will receive a written decision from the Arbitrator permitting the review to proceed. The original decision would be set aside, and a new hearing date would be scheduled.
The Arbitrator’s decision permitting review must be served on the other side within three days of receiving the decision. The same method of service must be used as outlined above for a Notice of Hearing package.
4. Review by the Supreme Court of B.C.
An Arbitrator’s decision can also be reviewed by the Supreme Court of B.C. under the Judicial Review Procedure Act, RSBC 1996, c 241. The RTA contains a privative clause (s 84.1) which narrows the scope of the review. It is not a new trial. The Supreme Court of B.C. generally would conduct a review if there were:
- Patently unreasonable error of fact or law
- Breach of procedural fairness
When a decision is overturned by the court, the case is usually returned to an Arbitrator to be reheard. Due to the complexity of operating in the B.C. Supreme Court, a lawyer should be involved for a judicial review in B.C. Supreme Court. It is important to get legal advice and act quickly. The Community Legal Assistance Society (CLAS) (604-685-3425) is available to assist with judicial reviews of Arbitrators’ decisions and is especially interested in helping with potential test cases. For more information on grounds on grounds for judicial review, see judicialreviewbc.ca.
- NOTE: Losing a judicial review may result in an award of costs, meaning that the losing party must pay the legal costs of the other party.
5. Filing Complaints to the RTB
Complaints about information officers, dispute resolution hearings, or general services of the RTB must be put into writing and mailed to the Executive Director of the RTB:
- P.O. Box 9844 Stn Prov Govt
- Victoria, B.C. V8W 9T2
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.
F. 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
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|