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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)
Revision as of 01:09, 17 November 2019
, 01:09, 17 November 2019no edit summary
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{{LSLAP Manual TOC|expanded = landlord}} | {{LSLAP Manual TOC|expanded = landlord}} | ||
== A. General== | '''== A. General ==''' | ||
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=== 1. Disputes Covered by Dispute Resolution === | '''=== 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: | 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: | 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. | |||
'''=== 2. Arbitrators ===''' | |||
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)). | ||
== B. Dispute Resolution Procedure == | '''== B. Dispute Resolution Procedure ==''' | ||
=== 1. Applying for Dispute Resolution === | '''=== 1. Applying for Dispute Resolution ===''' | ||
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Rule 3.14 governs evidence not submitted with the Application and sets out that such evidence must be received by the all other parties 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. | Rule 3.14 governs evidence not submitted with the Application and sets out that such evidence must be received by the all other parties 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. | 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. | ||
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==== a) Naming Parties on an Application ==== | '''==== a) Naming Parties on an Application ====''' | ||
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==== b) Amending an Application for Dispute Resolution ==== | '''==== b) Amending an Application for Dispute Resolution ====''' | ||
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=== 2. Direct Request === | '''=== 2. Direct Request ===''' | ||
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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. | 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 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 original hearing (See '''Section XI. E: Review of Arbitrator’s Decision'''). | 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 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 original hearing (See '''Section XI. E: Review of Arbitrator’s Decision'''). | ||
=== 3. | '''=== 3. The Dispute Resolution Hearing ===''' | ||
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==== a) Telephone Hearings ==== | '''==== a) Telephone Hearings ====''' | ||
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==== b) In-Person and Written Hearings ==== | '''==== 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) | 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) Evidence ==== | '''==== c) Evidence ====''' | ||
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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. | |||
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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 | |||
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=== 4. The Arbitrator’s Decisions === | '''=== 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 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). | The Arbitrator’s order is final and binding but may be reviewed in limited circumstances (s 79). | ||
=== 5. Amendments to Decisions/Orders === | === '''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 | 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 | ||
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== C. Enforcing the Arbitrator’s Order == | '''== C. Enforcing the Arbitrator’s Order ==''' | ||
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=== 1. Enforcing a Monetary Order === | '''=== 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 part or all 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. | 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 part or all 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. | ||
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=== 2. Enforcing a Repair Order === | '''=== 2. Enforcing a Repair Order ===''' | ||
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=== 3. Enforcing an Order of Possession === | '''=== 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 his or her own means (RTA, s 57(2)), as this is unlawful. Bailiff services, described below, can be used to lawfully remove the tenant. | 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 his or her 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 ==== | '''==== 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. | 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. | ||
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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. | 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 ==== | |||
'''==== 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. | 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. | ||
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==== c) Role of the Police ==== | '''==== c) Role of the Police ====''' | ||
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== D. Serving Documents: Giving and Receiving Notice under the RTA == | '''== 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. | 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 === | '''=== 1. Service Methods ===''' | ||
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==== a) Personal Service ==== | '''==== 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. | 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. | ||
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==== b) Registered Mail ==== | '''==== 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. | 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. | ||
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==== c) Ordinary Mail ==== | '''==== 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. | 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 ==== | '''==== 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 ====''' | ||
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==== e) Leaving a Copy of the Document in a Mailbox or Mail Slot ==== | '''==== 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. | 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. | ||
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==== f) Posting ==== | '''==== f) Posting ====''' | ||
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==== g) Fax ==== | '''==== g) Fax ====''' | ||
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==== h) Substituted Service ==== | '''==== h) Substituted Service ====''' | ||
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=== 2. Requirements for Specific Documents === | '''=== 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. | 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 | '''==== 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. | 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 === | '''=== 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 his or her business as a landlord at that same address. | 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 his or her business as a landlord at that same address. | ||
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• 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 === | '''=== 4. Proof of Service ===''' | ||
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== E. Review of Arbitrator’s Decision == | == '''E. Review of Arbitrator’s Decision''' == | ||
=== 1. Application for Review of Arbitrator's Decision === | '''=== 1. Application for Review of Arbitrator's Decision ===''' | ||
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a) the party was not able to attend the original hearing due to circumstances that could not be anticipated and were beyond his or her 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. | |||
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NOTE: Applicants who seek a review of an RTB decision should be aware of the BC Court of Appeal’s decision in Sereda v Ni 2014 BCCA 248. That decision provides that, where an internal review decision is judicially reviewed, only that decision, and not the initial dispute resolution decision, can be reviewed by the court. This position has been softened somewhat by the same court’s decision in Yee v Montie, 2016 BCCA 256, and by the BC Supreme Court’s decision in Martin v Barnett, 2015 BCSC 426, which provides a clear overview of the issue. Individuals dissatisfied with the result of a first RTB proceeding should still, however, consider, if the timelines in their situation allow, seeking legal advice on what their best course of action is in seeking to have the decision reviewed. | NOTE: Applicants who seek a review of an RTB decision should be aware of the BC Court of Appeal’s decision in ''Sereda v Ni'' 2014 BCCA 248. That decision provides that, where an internal review decision is judicially reviewed, only that decision, and not the initial dispute resolution decision, can be reviewed by the court. This position has been softened somewhat by the same court’s decision in ''Yee v Montie'', 2016 BCCA 256, and by the BC Supreme Court’s decision in ''Martin v Barnett'', 2015 BCSC 426, which provides a clear overview of the issue. Individuals dissatisfied with the result of a first RTB proceeding should still, however, consider, if the timelines in their situation allow, seeking legal advice on what their best course of action is in seeking to have the decision reviewed. | ||
=== 2. Time Limits for Launching a Review === | '''=== 2. Time Limits for Launching a Review ===''' | ||
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=== 3. Successful Application for Review === | '''=== 3. Successful Application for Review ===''' | ||
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=== 4. Review by the Supreme Court of B.C. === | '''=== 4. Review by the Supreme Court of B.C. ===''' | ||
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• Patently unreasonable error of fact or law | |||
• Patently unreasonable breach of procedural fairness | |||
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P.O. Box 9844 Stn Prov Govt | P.O. Box 9844 Stn Prov Govt | ||
Victoria, B.C. V8W 9T2 | Victoria, B.C. V8W 9T2 | ||