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.