Jonnette Watson Hamilton recently posted an article on ABlawg.ca called “Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done,” in which she discusses a recent written decision by Master Farrington (in Calgary) in Abougouche v Miller, 2015 ABQB 724 (“Abougouche”).
Watson Hamilton’s article and the case are interesting, particularly in light of Master Schlosser’s decision (in Edmonton) in Boardwalk General Partnership v Montour, 2015 ABQB 242 (“Montour”), which was discussed by Anna Lund in her article on this site.
Both cases deal with the jurisdiction of the Court of Queen’s Bench to set aside or otherwise alter orders of the Residential Tenancy Dispute Resolution Service (“RTDRS”) in applications not constituting formal appeals of the RTDRS orders. Whereas Master Schlosser, in Montour, implied that the Court could set aside an RTDRS order on the basis of Rule 9.15 of the Alberta Rules of Court (which allows the Court to set aside a previous order where a party did not attend by mistake or accident), Master Farrington, in Abougouche, rejected this argument, ruling that Rule 9.15 is intended to apply to decisions of Queen’s Bench Masters or Justices, and not RTDRS orders.
While neither decision is binding on any future applications, Master Farrington’s decision in Abougouche presents a significant obstacle for those (often low-income tenants) applying to set aside or otherwise alter RTDRS Orders (without appealing) because they did not attend the RTDRS hearings. However, Master Farrington highlights the conundrum that exists because of a gap in the RTDRS regulation (Residential Tenancy Dispute Resolution Service Regulation, AR 98/2006): there is no mechanism at the RTDRS level to challenge service or apply for a rehearing when a party has not attended a hearing, and the rules to appeal RTDRS decisions to the Court of Queen’s Bench, which do not allow new evidence to be introduced and are procedurally and financially onerous, do not provide an effective remedy in this situation.
Master Farrington and Master Schlosser appear to agree that they do have jurisdiction to make orders affecting the enforcement of RTDRS orders (which must be filed at the Court of Queen’s Bench, and are enforced according to the Rules of Court), including staying enforcement. While this is an important remedy in some limited circumstances, it still leaves massive gaps.
It has come to my attention that Master Schlosser recently heard and made a ruling in another case with similar facts, and announced his intention to issue written reasons. We at The Access Review await this decision to see if further clarification is provided on this issue, and will provide an update as warranted. In the meantime, it appears that tenants looking to use Rule 9.15 to set aside RTDRS orders because they did not attend their RTDRS hearings may not get the relief they are seeking in Masters’ Chambers.