Category: Landlord/Tenant Page 2 of 8

Setting Aside and Varying Orders of the Residential Tenancies Dispute Resolution Service for Procedural Unfairness

Cases Commented On: 21006414 (Re), 2021 ABRTDRS 19 (CanLII), 20003149 (Re), 2020 ABRTDRS 18 (CanLII), 20003525 (Re), 2020 ABRTDRS 21 (CanLII), and Hammond v Hammond, 2019 ABQB 522 (CanLII)

This post looks at how difficult it is to have an order of the Residential Tenancy Dispute Resolution Service (RTDRS) set aside or varied. The power of a Tenancy Dispute Officer (TDO) to set aside or vary their own order was added in 2017 to the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (RTDRS Regulation). Unfortunately, there has been little reported consideration of how the new section 19.1 works. There are three reported Reasons for the Decision from the RTDRS, all of which were written by TDO J. Young. The most recently added Reasons for Decision cited two Court of Queen’s Bench cases that provide some principles that can be used to interpret section 19.1. It is therefore an opportune time to look at how easy (or difficult) it is for a landlord or tenant to persuade a TDO to set aside or vary the TDO’s own order.

Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

By Jonnette Watson Hamilton

On September 25, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

Case Commented On: 20005321 (Re), 2020 ABRTDRS 20 (CanLII)

This decision by a Tenancy Dispute Officer (TDO), J. Lambert, of Alberta’s Residential Tenancy Dispute Resolution Service (RTDRS) is notable for three reasons. The first – and probably the most helpful to the widest range of landlords and tenants – is the discussion about whether or not a tenant’s failure to produce evidence of tenant’s insurance as required by their residential tenancy agreement is a “substantial breach” that entitles the landlord to evict the tenant. It seems that many residential tenancy agreements require tenants to obtain insurance for their own property – contents insurance – and many tenants do not bother to do so. The second reason is its consideration of Ministerial Order No SA:005/2020, which was intended to offer some help to tenants who could not pay their rent due to COVID-19. That Ministerial Order lapsed on August 14, 2020, so whatever impact it had should be apparent by now. But because of structural problems such as the small percentage of RTDRS decisions made public and the closure of courts to eviction cases at the beginning of the pandemic, we will probably never know whether or what kind of difference that Ministerial Order made. We do have a hint of its impact in the decision in 20005321 (Re), but it is only a hint. The third reason this decision is notable is that it is one of only 24 RTDRS decisions made public so far in 2020. The publication of some RTDRS decisions was a recent and deliberate commitment to “improved access to justice by publishing written RTDRS decisions through the CanLII database”, according to the Service Alberta Annual Report 2019/2020 (at 19). This decision contributes toward that goal, but more is needed.

Can an Alberta Landlord’s Duty to Make Reasonable Efforts to Negotiate a Meaningful Payment Plan with Residential Tenants before Evicting Tenants be Enforced?

By Jonnette Watson Hamilton

On May 25, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Can an Alberta Landlord’s Duty to Make Reasonable Efforts to Negotiate a Meaningful Payment Plan with Residential Tenants before Evicting Tenants be Enforced?

Legislation Commented On: Ministerial Order No. SA: 005/2020 [Service Alberta]

Since May 1, 2020, a landlord in Alberta has been able to evict a residential tenant for non-payment of rent and utilities even if the failure to pay is due to circumstances beyond the tenant’s control caused by the COVID-19 pandemic. At least one politically prominent landlord has already starting eviction proceedings (see here and here). In place of the suspension of evictions that expired April 30, the government introduced a duty on landlords to make reasonable efforts to enter into meaningful payment plans with their tenants. According to the government description of this new duty (in Rent Payment Plans COVID-19), landlords will have to prove they made these efforts before landlords can issue a 14-day notice or apply to the courts or Residential Tenancy Dispute Resolution Service (RTDRS) to terminate a tenancy for non-payment of rent. Landlords may eventually have to prove that they made those efforts if tenants sue them or refuse to leave the rental premises, but there is a gap in the new law that makes it unnecessarily difficult for tenants – or anyone else – to enforce a landlord’s new duty. The Minister for Service Alberta needs to amend section 29 of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) and section 32 of the Mobile Home Sites Tenancies Act, RSA 2000, c M-20 (MHSTA) to allow tenants who have failed to pay rent to object to a 14-day notice terminating a tenancy on the basis that the landlord has not complied with its new duty.

Residential Tenancies in Alberta: Evictions for Non-Payment of Rent No Longer Suspended

By Jonnette Watson Hamilton

On April 30, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Residential Tenancies in Alberta: Evictions for Non-Payment of Rent No Longer Suspended

Legislation Commented On: Tenancies Statutes (Emergency Provisions) Amendment Act, 2020 (Bill 11); Late Payment Fees and Penalties Regulation, Alta Reg 55/2020; and six Ministerial Orders issued in relation to COVID-19

In response to the COVID-19 pandemic, the Alberta government has issued six ministerial orders that affect residential tenancies, as well as one regulation and one amending statute. All eight instruments are described in terms of the changes they make to pre-pandemic residential tenancy law in a table towards the end of this post. For the most part, however, this post focuses on the two ministerial orders dealing with evictions. Ministerial Order No. 20/2020 temporarily suspended the enforcement of some of the eviction orders made by the tenancy dispute officers of the Residential Tenancy Dispute Resolution Service (RTDRS) or by judges of the Provincial Court or Court of Queen’s Bench. Eviction order enforcement was suspended only if the reason to terminate the tenancy was for the failure to pay rent and/or utilities and nothing else, and only if that failure to pay was due to circumstances beyond the tenant’s control caused by the COVID-19 pandemic. Just how civil enforcement agencies have been deciding if those reasons are present is unknown. The suspension of evictions only lasts until Ministerial Order No. 20/2020 lapses. It lapses on the earliest of April 30, 2020, or when the Minister of Justice or the provincial Cabinet terminates it, or 60 days after the Order in Council declaring the state of public health emergency lapses – unless it is sooner continued by a Cabinet order. It appears that the suspension will end on April 30. What happens to evictions on and after May 1? The answer to that question is dictated by Ministerial Order No. SA: 005/2020, which imposes on landlords a duty to negotiate payment plans with their tenants. A landlord cannot get a court or RTDRS order to terminate a tenancy (or to pay rent in arrears or compensation for overholding) unless the landlord can prove either that the tenant failed to carry through on an agreed payment plan or, if there is no agreed payment plan, that the landlord “made reasonable efforts to enter into a meaningful payment plan” before applying to the court or RTDRS. Barring a last-minute Cabinet order, Ministerial Order No. SA: 005/2020 will be the only law standing between tenants who cannot pay their rent due to COVID-19 and their eviction after May 1.

Domestic Violence and Legal Responses to COVID-19 in Alberta

By Jennifer Koshan

On April 10, 2020

In Access to Justice, COVID-19, Family, Labour/Employment, Landlord/Tenant, State Responses to Violence

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Responses to COVID-19 in Alberta

Matters Commented On: Ministerial Order No 2020-011 (Community and Social Services); Court of Queen’s Bench Of Alberta, Amended Master Order #2 Relating to Court’s Response to the COVID-19 Virus; Court of Queen’s Bench Of Alberta, Pandemic Operations/ FAQ; The Provincial Court of Alberta, COVID-19 Pandemic Planning for the Scheduling of Matters

Many commentators have remarked on how COVID-19 and government orders to self-isolate will lead to increased rates of domestic violence and adversely impact victims of domestic violence seeking protection. Last weekend, for example, UN Secretary General António Guterres remarked that there has already been a “horrifying global surge in domestic violence” and urged “all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19.” The law clearly has a significant role to play in this context. As noted in a previous post, domestic violence matters engage many legal issues: civil protection order law, criminal law, family and child protection law, residential tenancies law, social assistance and housing law, and employment law, to name a few. This post reviews some of the efforts of lawmakers and courts in Alberta to respond to domestic violence issues in light of the COVID-19 pandemic and identifies some areas where further measures are needed. My focus is on domestic violence – in other words, violence in the context of intimate partner relationships – rather than child or elder abuse. Child and elder abuse cases also present challenging issues in the current pandemic, but they are beyond the scope of my analysis here.