FE Magazine 2009 No. 5 Sep-Oct - FRPO

Fair Exchange • September / October 2009
I’d rather bet on red or black at a casino
than try to guess how any given
Member might decide an issue
described above on any given day.
Resulting from all this confusion and
inconsistency is the mess we find ourselves
in today. Parties shaking their
heads in wonderment as their matters
are dismissed for reasons they can’t
fathom, too many adjournments
causing delay, too many reviews and
appeals, too many highly contested
applications with complex issues
causing delay and depleting Board
resources, and a shocking growth in
tenant claims raised either by filing a
paper application, or simply raised
without notice at a rent hearing thanks
to s.82.
The current government’s addition
of s.82 acts as an invitation to tenants
who fear that they will be homeless
and who can’t pay the rent. It is just
too easy to raise an issue that’s trivial
and blow it out of proportion, or to
manufacture an issue willfully and
compound the problem by refusing
the landlord entry to repair it.
Relying on the honesty and pure
motives of human beings wrapped
up in litigation is just not good
public policy.
But now add in the impending
increase to the monetary jurisdiction
at the Board from $10,000 to $25,000
which will take place on January 1 st ,
2010. Under the Residential Tenancies
Act, the Board’s jurisdiction will
increase by operation of law effective
that same day. Into this brew, we
throw in for good measure:
• A couple of recent decisions at
Divisional Court and the Court of
Appeal regarding entry and rent
increases that are remarkable;
• Another Divisional Court decision
that allows tenants to be
compensated at the Board for
special and general damages in
tort or in contract;
• Another very recent Divisional
Court decision seemingly erasing
limitation periods for tenant
claims and;
• A faltering economy with
employment not recovering
with an ending recession;
And voilà we have the ideal recipe to
create the perfect storm.
There are a number of implications
for the Ministry, and my insiders
suggest that nothing is being done to
prepare. As it stands, the hearing
blocks are too full and the schedule
too crowded to allow adjudicators
time to properly hear complex
matters. When a tenant is making a
claim for $10,000, and soon $25,000,
the landlord or its agent has an obligation
to vigorously defend the
claim and to hold the tenant to strict
proof of same. The current system,
almost unchanged from 1997,
doesn’t permit this. Some Members
baulk when you try to present and
discuss case law or thoroughly
examine a witness. It wouldn’t be
right at the Small Claims Court, and
it’s not right at the Landlord and
Tenant Board. The Board needs to
consider a number of fixes in order
to prevent the system from falling
further into disarray:
1. Revise the disclosure rules to
mirror those in the Small Claims
Courts. Respondents, landlords
or tenants, should have a right to
be aware of the case against them
before they arrive at a hearing.
2. Add adjudicators and hearing
locations if necessary, and only
appoint lawyers as the issues have
become too complex.
3. Consider revising the Rules about
adjournments, costs and payments
into the Board.
4. Consider bringing back default
judgments that were eliminated
under the Residential Tenancies
Act, perhaps extending the
dispute period to 10 days in order
to free up time for the hearing of
other applications.
5. A legislative change to s.82, scrapping
it and requiring tenants to
file applications, serve and disclose
prior to the hearing of the
landlord’s application, or at very
least a requirement for notice and
disclosure prior to the hearing.
6. Put out real stats for the
Minister and the industry,
showing the average time from
the filing of different types of
applications, to the date the
order is finally issued. The
current stat which reveals only
the time from application to the
first appearance, is meaningless,
masks the problem and frankly
is deceptive.
7. We need some common-sense
clarifications and amendments to
the legislation NOW, to fill some
of the gaps and resolve some of
the existing confusion. F
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