An Update on the Jurisdiction of Masters in the Court of Queen’s Bench to Set Aside Orders of the RTDRS

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.

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Repost from Richard Zorza’s Access to Justice Blog: New York Making Big Progress on Multi-Lingual Court Orders

Please find below a link to a post from accesstojustice.net, authored by internationally-renowned access to justice expert Richard Zorza. In it, Mr. Zorza, who coordinates the (American) national Self Represented Litigation Network, comments on the compliance and efficiency benefits of multi-lingual court orders. He references a technology-based translation process already in use in New York, through which court orders are immediately translated into Spanish on demand, and will soon also be available in Chinese and Russian. With the number of foreign workers and recent immigrants living in Alberta but lacking English fluency, such an initiative could have big benefits here too.

http://accesstojustice.net/2015/10/13/new-york-making-big-progress-on-multi-lingual-court-orders/

 

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Volunteering with ECLC Provides an Opportunity to Benefit the Access to Justice Cause

Here are a few reasons among many why it is rewarding to volunteer with ECLC.

Like most Canadians, lawyers come home from work on some days feeling spent, underappreciated, and ready to rest. Why would I suggest that you stop by the ECLC to volunteer for an evening or afternoon clinic before heading home? Here are a few of my reasons.

 The staff and volunteers are exceptional

Before you meet with clients, they have been processed and prepared by a team of very hard working staff and volunteers who are kind, professional, and just wonderfully pleasant people. They will provide you clear notes on the facts and legal issues and deliver the client to the meeting room in a way that ensures your encounter is smooth and meaningful as possible.  I can’t stress enough how the team at ECLC is top notch and has been for many years.

The services you provide to your clients really matter

We all know the barriers for those with limited financial means when it comes to the legal system. The clients are often struggling with difficult legal problems and they are very appreciative when they receive legal assistance and support.

The ECLC provides facilities and resources for all volunteer lawyers to help provide clients the legal help that they need.

You don’t have to be an expert on every legal question to really help clients

Many lawyers with highly specialized practices may not be comfortable advising on areas of law that are not familiar to them. They may wonder what they can provide a client who is facing eviction, has serious debt issues, or is navigating the complicated process of probating a will. The answer is surprisingly simple. Lawyers know how to read legislation, access court and tribunal documents, and focus on relevant legal issues. My point is whatever your background you can make a difference in the life of a client.

It reminds me of why I went to law school

I smile when I look back on the various experiences I have had with ECLC clients. The time a large group of migrant workers fit tightly in the small ECLC room so we could discuss their human rights claim; the expectant mother and father who couldn’t imagine bringing their baby into an apartment with bed bugs, or the seniors who need legal assistance so they may be treated with the dignity and respect that our society owes them.

In conclusion, I will admit that I sometimes arrive at the clinic after a hard day of work already feeling spent. However, I have always left with a raised sense of satisfaction and completion to the day. I suspect we all want to really help and improve the community we live in. It is hard to find a place that truly gives us that opportunity. The ECLC allows volunteers to make that difference.

ECLC offers the free legal clinics for low-income Edmontonians four nights a week, all year long. Other ways of volunteering are the Advice-A-Thon event, a yearly initiative where participating lawyers fundraise and give one hour of legal advice in tents at Churchill Square to the general public.

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Case Comment: Boardwalk General Partnership v Montour, 2015 ABQB 242

The Residential Tenancy Dispute Resolution Service (“RTDRS”) hears applications brought by landlords and tenants, such as for eviction for unpaid rent, the return of improperly withheld damage deposits and a reduction in (or abatement of) rent when a landlord has not properly maintained the rental premises.  A recent decision of Master Schlosser to temporarily stay an eviction order granted by the RTDRS provides landlords and tenants with an important avenue for addressing minor problems arising from RTDRS Orders, short of a full appeal. At the same time, it highlights some of the many challenges facing self-represented litigants who wish to exercise their legal rights with respect to one of their most pressing needs, housing.

On the morning of April 8, 2015, a tenant appeared in Masters Chambers. She was late getting her full rental payment to her landlord. The landlord had changed the locks to her apartment, barring the renter from accessing the suite. She was in court seeking relief.

A landlord cannot immediately evict a tenant after one late rental payment, but this landlord was acting within its legal rights. The tenant had fallen behind on rent before, and the landlord had brought an application to the RTDRS to have the tenant evicted. As commonly happens, the tenant and landlord consented to a Conditional Order. Under the terms of the Order, the tenant was required to repay the outstanding arrears and ongoing rental obligations according to a set schedule of payments. These Conditional Orders are fancifully called Cinderella Orders.  Like the glass slipper wearing princess, who needed to be home before midnight, tenants subject to a Cinderella Order must comply strictly with the time limits set out in the Order.  If any of the payments are late, a landlord is entitled to evict the tenant on as little as 48 hours notice.[1]  The Conditional Order in this case stipulated that a payment of $1,519 was due on April 1, 2015.  By April 1, the tenant had only paid $1,100, and the landlord changed the locks.

The tenant had a compelling excuse for not making a full payment on April 1. Three individuals lived in the rented premises and two of those individuals were receiving social assistance. The $419, which was not remitted on April 1, was to be paid directly to the landlord by a government agency. The government agency misread the Conditional Order and did not remit the rent by the deadline.  The agency had indicated it would issue a cheque, but could not do so before April 15, 2015. The Master extended the time for payment under the Conditional Order to April 20, 2015 and ordered the tenants be given access to the suite.

As the Master noted, this was a factually compelling case, it is also a legally interesting one.  The lawyer for the landlord raised a question about the jurisdiction of the Court to stay or alter a portion of a RTDRS Order.

RTDRS practice is largely governed by the Residential Tenancy Dispute Resolution Service Regulation [the “Regulation”].[2] According to the Regulation, RTDRS Orders can be appealed to the Court of Queen’s Bench. The appeal process has a number of shortcomings.  First, it can be prohibitively expensive for tenants, because the appellant must arrange for a transcription of the oral RTDRS hearing to be prepared and filed.[3] Transcriptions are billed per character, and depending on the length of the hearing can easily cost in excess of $200 and up to $1000 or more in exceptional cases.  Second, the appeal may not provide the tenant with an opportunity to have the merits of his or her case heard. The judge hearing the appeal is limited to the evidence that was before the Tenancy Dispute Officer.[4] A tenant who missed a hearing or who did not comprehend what evidence should be put before the Tenancy Dispute Office, is precluded from submitting new evidence on appeal. Finally, as the Master noted in his reasons, it can take a long time before the appeal is heard, and there is not an automatic stay of the RTDRS Order. A tenant who wishes to stay an Order pending appeal must bring a separate application before the Court.[5]  In the absence of a stay, the relief being sought by the appellant often ends up being moot. On an eviction application, the tenant will be forced to leave the rental premises and (hopefully) find somewhere else to live, before the appeal is heard.

In the case before Master Schlosser, the tenant had not appealed the RTDRS Order. The question posed by the landlord’s lawyer was whether the Court could alter or stay the Order in the absence of a formal appeal.  The landlord’s lawyer pointed to a pair of Alberta cases, in which Justices of the Court of Queen’s Bench had declined to stay RTDRS Orders in the absence of formal appeals.  Master Schlosser distinguished the case of Thomas v Beyer,[6] where Madam Justice Trussler was asked to permanently stay an RTDRS Order.  Master Schlosser noted he was only being asked to stay an RTDRS Order for a matter of days to allow the government assistance cheque to be issued.  In Zibrowski v. Nicolis,[7] Mr. Justice Lee found that the appeal failed for procedural deficiencies (no notice of appeal, no transcript), but also carried out a substantive analysis under the tripartite test for a stay.

The Master found a number of legal grounds upon which he could rely to temporarily stay the RTDRS Order.  RTDRS Orders are filed at the Court of Queen’s Bench and then enforced as Orders of the Court. The Conditional Order was an order for payment and Master Schlosser pointed out that the Judicature Act[8], the Civil Enforcement Act[9] and the Alberta Rules of Court[10] gave the Court broad powers to vary or stay its own Orders.  Master Schlosser reasoned that in the absence of any language directing otherwise, RTDRS Orders must be subject to the same provisions once they are filed at the Court of Queen’s Bench.

Notably, Master Schlosser mentioned Rule 9.15 of the Alberta Rules of Court as a provision that might apply to RTDRS Orders filed at the Court of Queen’s Bench.  Rule 9.15 allows a party to apply to have an Order set aside or varied if the party was given no, or insufficient notice of the initial hearing, or did not appear because of an accident or a mistake. Edmonton Community Legal Centre lawyers have relied on this provision on applications to vary RTDRS Orders, where the tenant missed the initial hearing.  Master Schlosser’s reasons can be read as endorsing this procedural practice.

In the alternative, Master Schlosser was prepared to rely on Rule 1.5 of the Alberta Rules of Court to cure the irregularity in the tenant’s application and treat it as a Notice of Appeal. Presumably, had Master Schlosser gone this route, then he would have been required to transfer the matter to Justice Chambers – as he noted in his reasons, Masters lack jurisdiction to hear appeals.[11]  There might be other problems with this approach. In this case, the applicant had not filed a transcript of the RTDRS hearing with the Court. There might not have been much of a hearing to transcribe, depending on at what point in the process the parties consented to the Conditional Order. In future cases, the RTDRS Order may be granted after a substantive hearing.  Recall that judges hearing appeals from RTDRS Orders are limited to the evidence presented at the initial hearing. Without a transcript of evidence before the Court, it is unclear how an appeal could proceed. Additionally, in cases like this one, where important evidence emerges after the hearing, it would seem that a judge hearing an appeal would be prohibited from taking this new evidence into account. Master Schlosser’s initial approach, to treat an RTDRS Order as an Order of the Court, is more workable than transforming an application for relief into an appeal.

The RTDRS Service is intended to be faster, more informal and less expensive than courts. One can understand why the drafters of the Regulation wanted to limit the ability of a party to appeal, so as to provide for the final resolution of disputes.  But there is a real question here as to how many tenants – who are often self-represented, financially insecure and very uncomfortable appearing in court – would take advantage of a more accessible appeal process to litigate unfavourable RTDRS Orders.  I suspect that the floodgate is not about to open.   The appeal process is too expensive and too complex for a system designed to be used by non-lawyers. Previous governments have intimated that changes are coming to the RTDRS system. The appeal process should be on the list of provisions to amend. Until then, Master Schlosser’s decision provides a mechanism by which tenants and landlords can use the Court to reach common sense resolutions of disputes arising from RTDRS Orders.

[1] Most RTDRS Orders allow landlords to evict tenants who have failed to comply with Conditional Orders after serving a Notice of Default, which usually provides a 48-hour grace period between the service of the Notice of Default and the actual changing of the locks.

[2] Residential Tenancy Dispute Resolution Service Regulation, AR 98/2006 [“RTDRS Reg”].

[3] RTDRS Reg, s 23.

[4] RTDRS Reg, s 25.

[5] RTDRS Reg, s 26.

[6] Thomas v. Beyer, 2006 ABQB 892.

[7] Zibrowski v. Nicolis, 2012 ABQB 236.

[8] Judicature Act, RSA 2000 c J-2, s 17.

[9] Civil Enforcement Act, RSA 2000 c C-15, s 5.

[10] Alberta Rules of Court, AR 124/2010, R 9.14-9.16.

[11] Court of Queen’s Bench Act, RSA 2000 c C-31, s 9(1)(a).

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ABlawg.ca Post Comment: Can the Homeless Find Shelter in the Courts?

In a recent ABlawg post, Joshua Sealy-Harrington argues that the Ontario Court of Appeal two-justice majority decision in Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (CA) is less compelling than Feldman JA’s dissent–which would have recognized section 7 of the Charter of Rights and Freedoms as granting positive rights. Sealy-Harrington points out that the wording of section 7 clearly anticipates the creation of positive rights, when viewed in comparison, for example, with the wording of section 9 (Section 7 gives us “the right to life, liberty and security of the person” as well as the right “not to be deprived thereof;” section 9 grants only the rights not to be subject to certain government action). The plaintiffs in the case, all Ontario residents struggling with homelessness or extremely precarious housing, sought declarations that the Ontario government was violating their Charter rights by failing to provide adequate housing. While the majority dismissed the case as too vague and political, Sealy-Harrington argues that the issue at bar was no more political or vague than many other questions courts routinely consider. This issue of whether we have a positive right to a minimum standard of housing is highly relevant in Alberta, where social housing is at such a premium as to be virtually inaccessible, and the rental vacancy rate is so low that affordable housing has all but ceased to exist. Sealy-Harrington’s post may be of interest to housing law practitioners across the province, and is available here. If the Supreme Court elects to hear the appeal which has been filed, it will be a case to watch.

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Online Self-Help Resources No Panacea for Access to Justice Crisis

Co-Authored by Sarah Eadie and Kaila Eadie

Online, plain language, self-help resources are commonly touted as important tools in our efforts to increase access to justice. British Columbia has created a web portal (Clicklaw), designed to be the primary electronic access point linking British Columbians to available legal information and help; the Alberta Legal Information Society is currently developing a similar portal for Albertans.

Although online resources have become increasingly important in recent years, a new study out of University College London[1] raises concerns about their efficacy in facilitating access to justice for those most in need of the access. Key concerns include the impact of literacy deficits, lack of internet-based expertise, and even access to technology.

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Case Comment: Trial Lawyers Association of British Columbia v British Columbia (AG)

Case Comment: Trial Lawyers Association of British Columbia v British Columbia (AG)

The recent Supreme Court of Canada [“SCC”] decision in Trial Lawyers Association of British Columbia v. British Columbia (AG)[1] may have far-reaching ramifications for those of us concerned about access to justice, particularly by those people generally described as “middle class”. The SCC found that British Columbia’s court fee provisions were unconstitutional because of their effect of denying some people access to the courts. This post comments on the SCC’s decision, and considers the case’s potential impact for Alberta.

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