THE COURT OF APPEAL FOR SASKATCHEWAN HELMUT (HAL) REICH (APPELLANT) and ACHIM LOHSE and ISABELLE DAILLY (RESPONDENTS) APPELLANTS and THE OFFICE OF THE RENTALSMAN (RESPONDENT) CORAM: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: The appellant Mr. Reich appeared on his own behalf The respondents Mr. Lohse and Ms. Dailly were represented by Mr. Lohse Mr. Wayne Mulholland for the respondent Rentalsman DISPOSITION: Appeal Heard: 25 July, 1994 Appeal Allowed: August, 1994 Reasons: August, 1994 On Appeal From: QBM 456/94, Regina Appeal File: 1915 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Sherstobitoff JACKSON J.A. The issues in this case began long before the notice of termination of tenancy (which ultimately prompted this Court's involvement) and stem from number of complaints made by both the tenants and the landlord. The landlord, Mr. Helmut Reich, began leasing his premises to Achim Lohse and Isabelle Dailly on August l, l993. The tenancy was not an amicable one. The tenants applied first to the Rentalsman's Office early in 1994 for an order directing the landlord to do certain repairs and maintenance. hearing was held on March 21, 1994. On this same day thelandlord served the tenants with a notice of termination oftenancy. The deputy rentalsman who conducted the hearing on this first complaint released his decision on May 3, 1994 at which time he ordered the landlord to remove stove, replace refrigerator and make appropriate repairs to floor tiles, fence and gate. He did not, as the tenant had requested, prohibit the landlord from unauthorized visits or direct the removal of particular clause in the tenancy agreement but chose instead to refer the parties to the appropriate provisions in The Residential Tenancies Act R.S.S. 1978, c. R-22. The tenants appealed this decision to Matheson J. who dismissed the appeal in an unreported judgment dated June 10, 1994 (Q.B.M. No. 446, Judicial Centre of Regina). The tenants did not appeal that decision further. Meanwhile the landlord's termination notice still had to be dealt with. The tenants' response to receipt of the termination notice was not to move. They claimed the termination notice was meant to punish them for applying to the Rentalsman's Office for protection of their rights. All this resulted in another hearing before the same deputy rentalsman who had heard the previous application on May 10, 1994 to consider the landlord's claim for possession. The landlord included among his reasons for wanting possession two letters indicating his desire to sell the premises and his ill health necessitating sale. The deputy rentalsman's decision on the landlord's application for possession was rendered May 13, 1994. This decision displays the animosity which continued to exist between the tenants and the landlord. The final portion of the decision reads: Having reviewed the various differences between this landlord and tenant over the course of two hearings, am of the opinion that there is little or no chance for the parties to reconcile their differences whatever they may be and the landlord was justified in serving notice to terminate. The differences between the Landlord and Tenants did not solely arise from reasonable complaints by tenants. DECISION: Having so found, make the following Order; This tenancy will terminate as of midnight on the 3lst of July 1994. Order Writ of Possession be issued directing the Sheriff at the Judicial Centre of Regina to place this landlord in possession of these premises no sooner than the lst of August 1994. To assist withrelocation costs, the total rent for June and July isabated. Now it was the landlord\'s turn to appeal the deputyrentalsman\'s decision. The landlord's specific concern was the abatement of rent for June and July which amounted to $1,150. The matter was heard by Justice Sirois on June 2l, l994. Justice Sirois ordered, without giving reasons, thatthe deputy rentalsman\'s order was to stand with respect totermination of the tenancy on July 31, 1994 (as opposed tosome earlier date). However, he reversed the decision toabate rent for June and July. The tenants then applied for leave to appeal to thisCourt under s. 49(2) of The Residential Tenancies Act. Leave was granted on the question of "whether the learnedchambers judge correctly found an error of law or want ofjurisdiction entitling him to overturn the decision ofdeputy rentalsman Slinn abating the rent for June andJuly." Justice Sirois's function was governed by s. 49(1) of The Residential Tenancies Act: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty's Court of Queen's Bench for Saskatchewan within 30 days of the date of the decision or order. Therefore, it can be assumed that, in overturning thedecision of the rentalsman with respect to the abatement ofrent, Justice Sirois decided the rentalsman either: (i)exceeded his jurisdiction; or (ii) erred in law. Although not specifically stated, this Court's function must also be limited to determining whether Sirois J. erred in so concluding. The source of the Court of Appeal's jurisdiction is s. 49(2): 49(2) Any person who is aggrieved by decision or order of judge of Her Majesty's Court of Queen's Bench for Saskatchewan pursuant to sections 47.1 to 47.3 or pursuant to subsection (1) of this section may appeal the decision or order to the Court of Appeal within 30 days of the date of the decision or order with leave of the Court of Appeal or judge of that court. One turns first to determine whether the deputy rentalsman had the power to abate rent in this case. The relevant provisions of The Residential Tenancies Act are ss. 47(1)(a),(1.1),(1.2),(2) and (4): 47(1) An application for an order respecting any residential tenancy dispute may be made: (a) to the Rentalsman, in the form and manner that the Rentalsman may direct; (2) On receiving an application pursuant to clause (1)(a) or determining pursuant to subsection (1.2) that hearing should be held, the Rentalsman: (a)may direct an investigation into the matter; (b)shall hold hearing; (c)after holding the hearing pursuant to clause (b), may make any order the Rentalsman considers just and equitable in the circumstances including an order: (i)directing any person found contravening or failing to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (ii)requiring tenant to pay to the Rentalsman all or any part of any instalment of rent otherwise payable to the landlord; (iii)requiring the payment of damages; (iv)granting possession of residential premises; and (d)shall, where an order is made pursuant to sub-clause (c)(ii), use the moneys paid to the Rentalsman to remedy the landlord's contravention of or failure to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act. (4) Where, in any proceeding by landlord for possession of residential premises, it appears to the Rentalsman that: (a) notice to terminate the tenancy agreement was given to the tenant because of the tenant's bona fide complaint to the Rentalsman or to any other agency of the Government of Saskatchewan alleging the contravention of any statute, bylaw or other law dealing with health or safety standards, including housing standards; (b) notice to terminate the tenancy agreement was given to the tenant because of the tenant's attempt to secure or enforce his rights under this Act; or (c) on the evidence presented, the landlord has contravened term or condition of the agreement or has contravened any condition set out in section 20; the tenant may in the same proceedings apply to the Rentalsman for relief and the Rentalsman may grant such relief, including relief with respect to payment of rent or reasonable compensation and the granting of an injunction to restrain any contravention as mentioned in clause (c), as he considers just having regard to the proceedings, the conduct of the parties and to all other circumstances. The deputy rentalsman did not make it clear pursuant to which section he ordered rent to be abated. Under s. 47(2), the rentalsman may make "any order [he or she] considers just and equitable" including an order (i) stopping any contravention under the Act; (ii) requiring tenant to pay to the rentalsman any rent; (iii) requiring damages to be paid; and (iv) granting possession of residential premises. Under s. 47(4), the rentalsman may, among other things, grant relief with respect to rent, if it appears to the rentalsman: (i) the tenancy was being terminated because of the tenant's bona fide complaint or attempt to enforce rights under the Act; or (ii) the landlord had contravened the agreement or s. 20 of the Act. (The deputy rentalsman has all the powers of the rentalsman (see s. 7(3) of the Act). That the deputy rentalsman hadthe authority to abate rent under s. 47(4) is clear on theface of the section. Whether he also had the authority under s. 47(2) depends on the construction of s. 47(2). In s. 47(2) the legislature has used general words: "may make any order the Rentalsman considered just and equitable" followed by specific types of orders. The list of specific orders might have been given because they are extraordinary: they are either injunctive, require the payment of money or give possession of the premises to the landlord. The abatement of rent, too, might be regarded as extraordinary. Was the list intended to be exhaustive as to extraordinary powers or was it given out of an abundance of caution? The power to abate rent on landlord's application for possession is specifically mentioned in s. 47(4). Does this limit further the rentalsman's powers under s. 47(2)? The deputy rentalsman made two statements which are somewhat contradictory. He said: (i)"the landlord was justified in serving notice to terminate"; and (ii)"the differences between the landlord and tenants did not solely arise from reasonable complaints by tenants." The first statement saying the landlord was justified in serving the termination notice would seem to rule out any possibility of jurisdiction falling under the rubric of s. 47(4). But the last statement would lead one to conclude that the differences arose, in part, from reasonable complaints by tenants which would then justify the abatement of rent under s. 47(4). If the differences did not arise "solely" from the tenants' reasonable complaints, they must have arisen in part from such complaints. The rentalsman's powers under s. 47(4) cannot be so restricted that he must find precisely the reason for the landlord's desire for possession. Nor should he be so limited by s. 47(4) to ordering an abatement if he finds the landlord was only motivated by one reason, i.e., to rid himself of his tenants for their reasonable complaints. It would be rare case, indeed, where the rentalsman could abate rent if he had to first find the landlord was motivated only by such reason. (One could envisage fact situations where the rentalsman may have to consider the predominate motivating reason, but we do not have that type of case here.) On balance, it is my interpretation of the deputy rentalsman's order that he was exercising jurisdiction under s. 47(4), and it was possible for him to so exercise that jurisdiction. This obviates the necessity of deciding whether he also had the jurisdiction to abate rent under s. 47(2). Having concluded that the deputy rentalsman had the authority to abate rent, it follows that Sirois J. erred in overturning the deputy rentalsman's decision to abate the rent for June and July. The landlord did not articulate legal reason which would preclude the deputy rentalsman from making the decision he made. The landlord, in detailed written submissions, indicated his concern for himself and other landlords if required automatically to provide an abatement of rent if they wished to legitimately terminate tenancy. The landlord may be justified in his concern if it were required in all cases, but that is not the case here. Therentalsman has a discretion to determine those cases wherean abatement of rent is appropriate. Whether the rentalsman orders an abatement of rent is the rentalsman's decision to make (assuming it is otherwise made in accordance with the law.) In this case, the deputy rentalsman heard the tenants and the landlord in two separate hearings and had access to Matheson J.'s written judgment. The landlord in the second hearing wanted writ of possession so as to be able to sell the premises not to re-rent them. The tenant did not want to give up possession. The landlord received his writ of possession,but not for two months hence. The deputy rentalsman abatedthose two months rent. Both sides were intent on complete success and the deputy rentalsman sought an order which would give each side part of what they had demanded. Our jurisdiction and that of the Queen's Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman's jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. It must be kept in mind we are not dealing with The Landlord and Tenant Act but rather The Residential Tenancies Act passed in an attempt to provide tenants with some security of tenure (see: Williams Rhodes Canadian Law of Landlord and Tenant 6th ed. (vol. 2) p.17-1). This protection was given to tenants to address the unequal bargaining power between landlords and tenants (see: Residential Tenancies in British Columbia by G.B. Klippert at p. 42 and Residential Tenancies (3rd ed.) by D.H.L. Lamont Q.C. at pp.1-4). Prior to August l4, 1992, appeals from the rentalsman's decisions were taken to the Rent Appeal Commission (see old s. 49). These appeals were far-ranging. The Commission could receive new evidence and make any just and equitable order (see old s. 50). The Residential Tenancies Amendment Act, 1992 s.s. 1992, c. 37 (which came into force on August 14, 1992) abolished the Rent Appeal Commission and permitted applications to be made directly to the Queen's Bench, in certain circumstances (see: ss. 47(1)(b), 47.1 to 47.3), or to the rentalsman (see s. 47(1)(a) above). Wherethe application is made to the rentalsman, the appellatejurisdiction of the Queen\'s Bench is restricted to findingerror of law or jurisdiction. The jurisdiction previously given to the Rent Appeal Commission has not been given to the Queen's Bench. There is no longer full re-hearing on an appeal from the rentalsman's decisions. On this basissome deference must be shown to those aspects of therentalsman\'s decisions which reflect an exercise ofdiscretion. In the result, the appeal is allowed and the decisionof the rentalsman restored. As neither the landlord nor the tenant was represented by counsel, there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of August A.D. 1994. JACKSON J.A. concur WAKELING J.A. concur SHERSTOBITOFF J.A.
The landlord applied for possession of residential premises after his tenants refused to vacate in response to a written notice to vacate. The deputy rentalsman ordered that the landlord should have possession, but also ordered that the last two months rent would abate in order to assist the tenants with their moving costs. The landlord appealed the abatement of rent and a chambers judge reversed the deputy rentalsman. The tenants sought and were granted leave to appeal the chambers judge and this appeal resulted. HELD: Appeal allowed. 1)The chambers judge could only reverse the deputy rentalsman if he exceeded his jurisdiction or erred in law. 2)The deputy rentalsman had jurisdiction to order an abatement of rent pursuant to S.47(4) of the Act. 3)The jurisdiction is a discretionary one. The court will therefore show some deference to a decision of the rentalsman involving this jurisdiction. In this case the deputy rentalsman made no reversible error.