IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Laverdure v. First United Church Social Housing Society, |
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2017 BCSC 1439 |
Date: 20170721
Docket: S1510575
Registry: Vancouver
Between:
Chantal Laverdure
Petitioner
And
First United Church Social Housing Society
and British Columbia Residential Tenancy Branch
Respondents
Before: The Honourable Mr. Justice Mayer
On judicial review from: An Interim Decision of Arbitrator C. Reid of B.C. Residential Tenancy Branch issued on October 20, 2015
Oral Reasons for Judgment
In Chambers
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Counsel for the Petitioner: |
A. Prince |
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Counsel for the Respondents: |
O. Miklos |
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Place and Date of Hearing: |
Vancouver, B.C. June 27, 2017 |
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Place and Date of Ruling: |
Vancouver, B.C. July 21, 2017 |
[1] THE COURT: These are my reasons in the petition brought by Chantal Laverdure with the First United Church Social Housing Society and the BC Residential Tenancy Branch as respondents.
[2] I note that the British Columbia Residential Tenancy Branch has not provided a response although served with this petition and did not appear and did not make submissions during the hearing of this matter.
[3] This matter concerns what was ultimately found to be the wrongful termination of a residential tenancy. The issue before me is whether the decision of the arbitrator duly appointed by the Residential Tenancy Branch declining to allow the petitioner Chantal Laverdure (“Ms. Laverdure”) to amend her application for dispute resolution to include a claim for damages was patently unreasonable. The petition before me is brought pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.
[4] From November 2006 until March of 2013 Ms. Laverdure was a tenant in a subsidized housing facility in Vancouver owned and operated by the respondent First United Church Social Housing Society (the “Landlord”).
[5] On March 7, 2013, on the contested application of the Landlord, Ms. Laverdure’s tenancy was terminated as a result of a decision of a dispute resolution officer (“DRO”) with the Residential Tenancy Branch. Ms. Laverdure filed an application for review of the decision to terminate her tenancy, and on March 21, 2013, the reviewing arbitrator dismissed her application. Ms. Laverdure subsequently vacated the rental unit on April 30, 2013.
[6] On April 2, 2014, Ms. Laverdure filed an amended petition for judicial review under s. 79 of the Residential Tenancy Act, S.B.C. 2002, c. 78 (“RTA”) and that application was dismissed, which then resulted in an application for a judicial review which was heard before Justice Davies of this Court on September 29, 2014. Davies, J. found that the reasons given by the DRO for terminating Ms. Laverdure's tenancy were inadequate and set aside the arbitrator’s decision doing so. Davies, J. then remitted Ms. Laverdure's application for a dispute resolution with respect to termination of her tenancy for rehearing before a different DRO with the Residential Tenancy Branch.
[7] The rehearing, which was originally scheduled for March 3, 2015, did not proceed as a result of illness of the petitioner and was subsequently rescheduled to September 22, 2015. On August 28, 2015, Ms. Laverdure submitted an amended application for dispute resolution, which included for the first time a monetary claim for $15,858.50.
[8] A preliminary hearing was conducted by telephone before Arbitrator Reid on September 22, 2015, at which the following two issues were considered: first, what evidence would be admissible at the rehearing of the matter with respect to whether the termination of Ms. Laverdure's tenancy was justified; second, and salient to the petition before me, did Ms. Laverdure have a right to have her amended tenant's application for dispute resolution, including her claim for damages, heard at a subsequent Residential Tenancy Branch hearing?
[9] Arbitrator Reid found that pursuant to the decision of Davies, J., the matter before her for consideration was a rehearing and not a hearing de novo with respect to the decision to terminate Ms. Laverdure's tenancy. Arbitrator Reid considered that she was bound to rehear only Ms. Laverdure's original application for dispute resolution, which had been filed in February of 2013 and heard on March 7, 2013, as this was the application that had been considered by Davies, J.
[10] As a result, Arbitrator Reid determined by applying the seven‑day service requirement in former Rule 2.5 of the Rules of Procedure applicable to Residential Tenancy Branch matters, that the time limit for filing the amended application was seven days prior to the original March 7, 2013 dispute resolution hearing date. On that basis she declined to permit the requested amendment to Ms. Laverdure's application for dispute resolution as it was out of time.
[11] On November 22, 2015, Arbitrator Reid reheard the application of Ms. Laverdure with respect to the lawfulness of the termination of her tenancy and subsequent eviction and in written reasons dated November 27, 2015, and served for some reason early the following year, set aside the notice to end tenancy.
[12] In this petition Ms. Laverdure seeks the following orders:
1) First an order setting aside the interim decision made October 20, 2015, by Arbitrator Reid.
2) Second, an order remitting the petitioner's application for dispute resolution, Residential Tenancy Branch file number 804819 for rehearing.
3) Third, an order for directions that the arbitrator rehearing the petitioner's application accept the petitioner's claim for damages or other directions as the court thinks appropriate in this matter.
4) And fourth and finally, an order that each party bear their own costs.
[13] In my view the issues before me in this petition are whether the decision of Arbitrator Reid declining to permit the requested amendment to Ms. Laverdure's application for dispute resolution was patently unreasonable for the following reasons: that Arbitrator Reid misinterpreted and therefore misapplied the applicable rule and principles of the Residential Tenancy Act; further and in the alternative, that Arbitrator Reid failed to satisfy her legal obligation to provide adequate reasons when making her decision.
[14] Given the limited internal review power of the Residential Tenancy Branch (“RTB”), it is not necessary for a party to seek an internal review of an RTB decision, such as the decision at issue in this petition, before bringing a petition for judicial review. In any case in my view Ms. Laverdure has exhausted her means for redress through the RTB process.
[15] The standard of review applicable to the decision of Arbitrator Reid is governed by the provisions of s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45. Pursuant to this section a finding of fact or law or an exercise of discretion by a tribunal regarding a matter for which it has exclusive jurisdiction under a privative clause must not be interfered with unless a decision is patently unreasonable.
[16] Further, a discretionary decision is patently unreasonable if the discretion is exercised arbitrarily or in bad faith, for an improper purpose, based entirely or predominantly on irrelevant factors, or fails to take statutory requirements into account.
[17] Rule 2.5 of the Rules of Procedure of the Residential Tenancy Act, the rule which was applicable at the relevant time, states that:
The applicant may amend the application without consent if a dispute resolution proceeding has not yet commenced. If applications have not been served on any respondents, the applicant must submit an amended copy to the Residential Tenancy Branch and serve the amended application. If the application has been served and all requirements can be met to serve each respondent with an amended copy at least seven days before the dispute resolution proceeding, the applicant may be permitted to file a revised application with the Residential Tenancy Branch. A copy of the revised application must be served on each respondent at least seven days before the scheduled date for dispute resolution proceeding.
[18] As outlined above Arbitrator Reid determined that pursuant to Rule 2.5 of the Rules of Procedure, that the deadline for serving the amended application for dispute resolution was seven days prior to the original dispute resolution hearing of March 7, 2013, and not seven days prior to the rehearing date, which occurred on September 22, 2015.
[19] With all due respect to Arbitrator Reid, I do not consider that this determination is correct. Rule 2.5 does not specify that the time limitation is to be applied in respect of an original dispute resolution hearing. The rule simply states that the amended application must be served more than seven days "before the scheduled date for the dispute resolution proceeding". There is no dispute, and in fact Arbitrator Reid found, that the amended application for dispute resolution was served more than seven days prior to September 22, 2015.
[20] I agree with the argument of counsel for Ms. Laverdure that as a matter of law when a reviewing court remits a matter back to a tribunal before a different arbitrator, and I will add especially where the impugned decision goes to the heart of the matter, that the matter is a de novo hearing. In this case Davies, J. remitted the matter back to the RTB to be heard by a new arbitrator. The fact that the word "rehearing" was used does not in my view indicate that it is somehow a continuation of the earlier hearing. It is a new hearing on the same issues.
[21] In that respect I find that the use of word "rehearing" to describe the remitted dispute is irrelevant. As noted above Rule 2.5 of the Rules of Procedure does not distinguish between an originating hearing or a rehearing of a matter which has been remitted for reconsideration after judicial review. It simply requires service of materials more than seven days prior to the dispute resolution proceeding.
[22] I also agree with the argument for counsel with Ms. Laverdure that it defies common sense that Ms. Laverdure should have filed the amended application for dispute resolution seeking damages for wrongful eviction seven days prior to March 7, 2013, when she was still a tenant and had not yet suffered any damages.
[23] With respect to the argument regarding delay, I consider that having exhausted all of her remedies under the RTA process, including bringing a successful application for judicial review in this court which ultimately resulted in the finding of Arbitrator Reid that the tenancy was wrongfully terminated, it would be perverse and contrary to common sense if Ms. Laverdure was not able to amend her application to include a claim for damages once the damages had, in fact, crystallized.
[24] It is the law in this jurisdiction that a finding that is contrary to common sense which fails to take statutory requirements into account is patently unreasonable.
[25] For these reasons I find that Arbitrator Reid in determining that the amended application for dispute resolution had to be served seven days prior to March 7, 2013, misinterpreted the service requirements of Rule 2.5 in a manner which was patently unreasonable.
[26] With respect to the adequacy of reasons and the arguments raised by counsel for the petitioner as an alternative argument, although my findings above with respect to the decision not to allow the amendment to be made are, I think, conclusive, I will make some comments with respect to arguments of counsel for the petitioner regarding adequacy of reasons.
[27] As stated by Davies, J., consideration of the adequacy of reasons given by a dispute resolution officer under the RTA must be evaluated against the standard of patent unreasonableness pursuant to s. 77(1)(c) of the RTA, which requires that a dispute resolution officer must provide reasons for a decision.
[28] As outlined by Davies, J. in Laverdure v. First United Church Social Housing Society, 2014 BCSC 2232, for the reasons of a DRO to be adequate they must set out the legal test to be met by the party advancing its claim, set out the adjudicator's finding of fact and the principal evidence upon which those findings were made and apply those findings of fact to the test to be made in reaching a conclusion that will allow the parties and others, including a reviewing court, to understand how and why the adjudicator reached that decision.
[29] The reasons need not address every issue raised by the parties nor all of the evidence adduced, but they must be sufficiently clear with respect to the central issues and supporting facts that underline the conclusion reached so that the parties and court understand the basis for the decision. I agree with the argument of counsel for Ms. Laverdure that Arbitrator Reid failed to set out the specific test or requirement as set out in Rule 8.4 of the Rules of Procedure, and that she did not refer to the requirements of Rule 8.4 concerning amendment of an application.
[30] Further I agree that Arbitrator Reid did not set out relevant facts, including I say significant, facts with respect to any potential prejudice suffered by the Landlord as a result of an amendment.
[31] Accordingly I conclude that the reasons given by Arbitrator Reid failed to meet the requirements necessary to allow the parties and the reviewing court to understand why the decision was reached and whether it was within a range of acceptable outcomes and therefore were patently unreasonable.
[32] As a result I make the following order:
1. The interim decision made October 20, 2015, by Arbitrator Reid is set aside.
2. Pursuant to s. 5(1) and (2) of the Judicial Review Procedure Act, I direct that Ms. Laverdure's amended application for dispute resolution Residential Tenancy Branch file number 804819, and in particular the portion of her application with respect to damages resulting from the wrongful termination of her tenancy be remitted back to the Residential Tenancy Branch for hearing.
3. As requested by counsel for the petitioner, the parties will bear their own costs of this petition.
[33] Ms. Prince, any questions?
[34] MS. PRINCE: No, thank you, My Lord.
[35] THE COURT: Mr. Miklos?
[36] MR. MIKLOS: Yes. My Lord, I just have a question with respect to permissible evidence. So at the rehearing I would assume that parties are able to present new evidence- any new evidence that may be fit even past the date of the original hearing, by the RTB I mean. So the March 3rd or 13th deadline.
[37] THE COURT: Well, the arbitrator ‑‑ thank you for the question, Mr. Miklos. I am not going to put any limitations on what the arbitrator decides is appropriate, but in this case in my view, and similarly I am not going to put any restrictions on the evidence to go before the arbitrator, but I will make a comment, which is that I have specifically directed that the matter to be heard before the arbitrator is - relates to damages suffered by Ms. Laverdure in this case. So it is my expectation that the arbitrator would focus the application on that relevant evidence. And to the extent that the evidence existed prior to or after the termination of her tenancy, the arbitrator will make a determination as to what is appropriate.
[38] MR. MIKLOS: Thank you.
[39] THE COURT: Anything else?
[40] Thank you, counsel.
“Mayer, J.”