Category: Landlord/Tenant Page 7 of 8

Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done

On December 7, 2015

By: Jonnette Watson Hamilton

PDF Version: Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done

Case Commented On: Abougouche v Miller, 2015 ABQB 724 (CanLII)

As the recently-appointed Master in Chambers, James R. Farrington, clearly and concisely sets out in Abougouche v Miller, there is no way for a tenant to have an order made by the Residential Tenancy Dispute Resolution Service (RTDRS) set aside if a tenant fails to appear at the hearing before a Tenancy Dispute Officer because the tenant did not receive actual notice of that hearing. The tenant cannot go back to the Tenancy Dispute Officer; that person only has the power to correct typographic, grammatical, arithmetic or other similar errors in their orders, clarify their orders, and deal with obvious errors or inadvertent omissions in their orders (Residential Tenancy Dispute Resolution Service Regulation (RTDRS Reg), Alta Reg 98/2006, section 19(1)). The tenant cannot apply to the only body with the power to cancel or vary an RTDRS order — the Court of Queen’s Bench (sections 23(1) and 25(1)(b) RTDRS Reg) — because new evidence is not permitted on appeals (section 25(1) RTDRS Reg) and evidence about service in technical compliance with the regulations but inappropriate nonetheless would be evidence that was not before the Tenancy Dispute Office, i.e., new evidence. So a tenant — even a tenant as apparently well-prepared with legal arguments as the self-represented tenant was in this case — has no opportunity to be heard on the merits. Worse, a tenant like Ms. Miller, who appears to have vacated the rented premises because of significant deficiencies, including internal flooding, seems to be set up by the Residential Tenancies Act (RTA), SA 2004, c R-17.1. That Act allows her landlord to serve notice of a RTDRS hearing on her by posting it on the rented premises that she vacated, even if the landlord knows the tenant has vacated those premises, even if she vacated for good reasons, and even if the landlord is still in regular communication with the tenant by email and text messages about the deficiencies in the rented premises (section 57(3) RTA).

The Residential Tenancies Act and Domestic Violence: Facilitating Flight?

By Jennifer Koshan

On December 4, 2015

In Landlord/Tenant, Property, State Responses to Violence

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Residential Tenancies Act and Domestic Violence: Facilitating Flight?

Legislation Commented On: Bill 204: Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015

Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, was introduced by Deborah Drever, Independent MLA for Calgary-Bow, to mark Family Violence Prevention Month on November 15, 2015. At that time, MLA Drever stated that “This bill seeks to empower and support survivors of violence by removing some of the barriers to leaving an unsafe home environment.” (Hansard, November 15, 2015). At Second Reading on November 16, 2015, MLAs from all parties expressed support for the Bill, which passed unanimously. Perhaps most powerful was the statement of the MLA for Lethbridge-East, Maria Fitzpatrick, who told her own story of domestic violence and the barriers to leaving her former spouse (Hansard, November 16, 2015). Amendments to the Bill were agreed to and introduced by the Committee of the Whole on November 30, 2015. This post will describe the ways in which Bill 204, as amended, proposes to revise the Residential Tenancies Act, SA 2004 cR-17.1, and will raise a number of issues that the Legislature may wish to consider before it passes the Bill in final form.

Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

By Jonnette Watson Hamilton

On July 16, 2015

In Access to Justice, Landlord/Tenant, Property

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?

Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

By Jonnette Watson Hamilton

On May 15, 2014

In Landlord/Tenant, Property

By: Jonnette Watson Hamilton

PDF Version: Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

Case commented on: Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins, 2014 ABQB 229 (CanLII)

This is an important decision for residential tenants, with potentially far-reaching impact. If a residential tenant is not in breach of his or her tenancy agreement, a landlord is unable to evict them except for a small number of reasons prescribed by the applicable legislation, either the Residential Tenancies Act, SA 2004, c R-17.1 or the Mobile Home Sites Tenancies Act, RSA 2000, c M-20. But because Alberta has no law limiting the amount by which landlords can increase rent, everyone knows that landlords can force tenants out by raising their rent beyond what they can afford or are willing to pay. This decision by Master Andrew Robertson calls into question that received wisdom. Indeed, by finding that the increase in rent in Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins was really a notice to terminate a periodic tenancy and of no effect as either a notice to terminate or a notice of a rent increase, Master Robertson’s decision potentially signals a significant shift in the power balance between landlords and residential tenants in Alberta.

The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

By Jonnette Watson Hamilton

On April 14, 2014

In Landlord/Tenant, Property

By: Jonnette Watson Hamilton

PDF Version: The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

Case Commented On: Perpelitz v Manor Management Ltd., 2014 ABPC 63

There are few enough written decisions considering the landlord’s duties under Alberta’s 10-year-old Residential Tenancies Act, SA 2004, c R-17.1, that almost any decision considering the statute is worth bringing to the notice of the province’s landlords and tenants. But this decision by Judge Gordon Yake is interesting on its own merits for a few reasons.