Category Archives: Access to Justice

Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

By: Jonnette Watson Hamilton

PDF Version: Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

Case Commented On: Hewitt v Barlow, 2016 ABQB 81 (CanLII)

It may be a good idea to accord the Residential Tenancies Dispute Resolution Board (RTDRS) the power to set aside its own orders and re-hear a dispute when it recognizes that one of its orders is the result of a procedurally unfair process. However, I am not certain that the RTDRS has the power to do so under the current legislation: the Residential Tenancies Act, SA 2004, c R-17.1 (the Act) and the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (the Regulation). I am almost certain that the RTDRS does not have the power to do so for the reasons set out by Master in Chambers, A. R. Robertson, in Hewitt v Barlow. The best remedy for the currently intolerable position that too many tenants have been put in by procedurally unfair RTDRS orders would be amendments to the Regulation. Helpfully, that Regulation expires on April 30, 2016. Although section 35 of the Regulation states that the purpose for its expiration is to ensure that it is reviewed for relevancy and necessity, rather than for fairness, its expiration is still an opportunity. Given the number of recent cases that have come before various Masters of the Court of Queen’s Bench requiring judicial review of RTDRS orders on procedural unfairness grounds, it is to be hoped that the legislature takes this review seriously and remedies the demonstrated flaws in the Regulation in order to ensure better access to justice for tenants and greater certainty about the powers of the RTDRS for all.

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Costs Not Appropriate in Protection Against Family Violence Act Litigation

By: Jennifer Koshan

PDF Version: Costs Not Appropriate in Protection Against Family Violence Act Litigation

Case Commented On: Denis v Palmer, 2016 ABQB 54 (CanLII)

This is a short comment on a short decision by the Court of Queen’s Bench on whether costs are appropriate in reviews of emergency protection orders (EPOs) under the Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA). The case is rather notorious, as the party seeking costs was Jonathan Denis, former Justice Minister and Solicitor General for Alberta, against whom an EPO was made right before the provincial election last spring. Breanna Palmer, Denis’s former wife, obtained an ex parte EPO from the Provincial Court against Denis and his mother Marguerite on April 25, 2015. Following the review hearing that must be held for all EPOs (see PAFVA s 3), Justice C.M. Jones gave an oral decision on May 4, 2015 in which he rejected the Denises’ request for an order setting aside Palmer’s application before the Provincial Court for an EPO nunc pro tunc (i.e. retroactively); granted their request to abridge the time for service, and revoked the EPO. He left it to the parties to reach an agreement regarding costs, but when they were unable to do so, the Denises brought the costs issue back before Justice Jones.

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Access to Legal Services in Women’s Shelters

By: Alysia Wright

PDF Version: Access to Legal Services in Women’s Shelters

Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters

In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.

We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.

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What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review

By: Sarah Burton

PDF Version: What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review

Case Commented On: Raczynska v Alberta Human Rights Commission, 2015 ABQB 494

The Alberta Court of Queen’s Bench recently rejected an application to judicially review the dismissal of a meritorious human rights claim. Why? The self-represented applicant did not name and serve the correct respondent on time. The fatality of this misstep would have been reasonably evident to any lawyer familiar with the Rules of Court, Alta Reg 124/2010 and case law governing judicial review. For self-represented litigants, however (and particularly those coming from the relatively forgiving forum of the Alberta Human Rights Commission) this is just one of the endless procedural landmines that can destroy their claim.

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Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

By: Jonnette Watson Hamilton     

PDF Version: Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

Case Commented On: Nee v Ayre & Oxford Inc, 2015 ABQB 402 (CanLII)

The decision by Justice Donald Lee in Nee v Ayre & Oxford Inc is one of several decisions that he has made dismissing tenants’ appeals of Residential Tenancies Dispute Resolution Service (RTDRS) orders because the tenant failed to file a transcript of the oral hearing that took place before an RTDRS officer. This decision builds on Justice Lee’s prior judgment in Herman v Boardwalk Rental Communities, 2011 ABQB 394 (CanLII), as it reproduces twelve paragraphs of his Herman decision to provide the reasons for dismissing Ms. Nee’s appeal. It is also very similar to Justice Lee’s decisions in Zibrowski v Nicolis, 2012 ABQB 236 (CanLII). Although Nee v Ayre & Oxford Inc does not make any new legal points, it is worth a post because it once again highlights how complex and expensive appeals from RTDRS orders are, especially for many self-represented litigants who are, after all, the people for whom the RTDRS process was designed.

What exactly does that complex and expensive appeal process entail?

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