QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 182 Date: 2008 04 24 Docket: Q.B.G. No. 421/2008 Judicial Centre: Regina BETWEEN: GENEVIÈVE CLOUÂTRE and THE OFFICE OF THE RENTALSMAN RESPONDENT Geneviève Clouâtre appearing on her own behalf Eric Hosie (agent) for the respondent, Art Hosie JUDGMENT ZARZECZNY J. April 24, 2008 [1] The tenant Geneviève Clouâtre appeals from the decision of the Hearing Officer rendered March 11, 2008 granting the landlord Art Hosie possession of her rental premises at suite “B”, 1909 Reynolds Street, Regina. [2] This self-represented tenant included, as grounds of her appeal, “procedural violations” and “misinformation as to the purpose of the hearing”. [3] The court’s detailed review of the application and proceedings before the Hearing Officer, including the written statements and communications sent to the rentalsman by the tenant, reveal the tenant’s concern over the short notice that she received of the hearing held March 11, 2008. This prompted the tenant to request, in writing, an adjournment so that she could make arrangements to personally attend the hearing. second issue revealed by the materials and presumably referenced by the other ground of appeal is the preoccupation, at the hearing, with evidence concerning the activities of the tenant’s boyfriend and the impact his actions had upon the premises and disturbances caused by him had upon another tenant and his daughter who also resided in the building. It was the tenant’s position that she was caught by surprise by this aspect of the hearing since no reference was made to this specific complaint in the landlord’s application. Her materials point out that had she been aware that this issue would be raised and focused upon she would have had submissions to make including the fact that the boyfriend no longer presented problem as he has since been and is presently incarcerated. REQUEST FOR ADJOURNMENT [4] The Residential Tenancies Act 2006, S.S. 2006, c. R-22.0001 (the “Act”) Hearing Notice was served on Ms. Clouâtre and came to her attention late Friday, March 7th one working day prior to the Tuesday, March 11th hearing. In letter the tenant sent to the rentalsman’s office Monday, March 10th she stated in part: ... It will be impossible for me to attend this first hearing as was not advised soon enough and could not make proper prior arrangements. ... also hope that you will contact me shortly to explain why such short notification was given to me... [5] The Decision of the Hearing Officer noted: The Notice of Hearing was properly served personally. The Tenant did not appear. ... No notice or warning is needed to proceed to hearing. ... The Tenant has further taken exception to being served with what she describes as one business day’s notice. The notice provisions of the Act require that the Tenant be served personally within three clear days of the hearing. The Landlord has satisfied these notice requirements. There is no other evidence that the Hearing Officer considered Ms. Clouâtre’s application for adjournment or dealt with it fairly or reasonably in the circumstances. Although the Director did advise Ms. Clouâtre that if she wished an adjournment she could call the hearing room or provide reasons in her written submission, the responsibility nevertheless lies with the Hearing Officer to receive and consider the adjournment that was clearly requested. [6] The decision of whether or not an adjournment should be granted is inherently discretionary. The decision should be taken with a view to what is necessary to ensure that justice is done between the parties. The discretion must be exercised judicially by the application of proper legal principles. (Darville v. The Queen,1956 CanLII 463 (SCC), [1956] 116 C.C.C. 113 (S.C.C.)). In the circumstances of this case that required consideration of the complexity of the issues, the tenant’s personal circumstances impacting on her ability to personally attend the hearing on short notice and any prejudice to the landlord if the requested adjournment were to be granted. [7] There is no indication that the Hearing Officer considered or weighed the prejudice that would occur to the landlord nor the circumstances of the tenant. [8] Insofar as the issues in the case are concerned the landlord’s claim, which is part of the Hearing Notice served on Ms. Clouâtre, included monetary claims for numerous items totaling $1,375.00, an order for possession based upon rental arrears of $225.00, rental loss of $450.00, and “nuisance/disturbance/offensive-illegal” (activities) including “building damage, pot smoking, pet damage (odor)”. This Hearing Notice raised numerous issues. It is understandable that tenant would require some reasonable time within which to make arrangements to attend any hearing that was scheduled, to inform herself about her legal position and the nature of the hearing process and obtain assistance or advice from the Director’s office or other persons in position to provide the same to her. [9] The three days notice given this tenant (including two weekend days of Saturday and Sunday) was insufficient to allow this tenant to make arrangements to personally attend. It is clear that she took the process very seriously and spent a considerable amount of time preparing a written response to the landlord’s claim as she knew it to be. She did not ignore the process. [10] In these circumstances find and conclude with respect, that the tenant’s request for an adjournment was not properly considered by the Hearing Officer. The disregard of the tenant’s request for an adjournment was unreasonable and inconsistent with the principle of access to justice that must guide judges and administrative tribunals alike in the conduct of their hearings. THE ISSUES AND EVIDENCE AT THE HEARING [11] Neither the Hearing Notice nor that portion of it outlining the landlord’s claim make any reference to the activities of the tenant’s boyfriend which apparently became primary focus of the evidence called at the hearing and subsequently the Decision rendered by the Hearing Officer. The evidence in that regard was presented by the landlord and Trevor Allen, fellow tenant in the building. [12] One could not discern, by reading the Hearing Notice or the landlord’s claim, that matters involving the tenant’s boyfriend would so occupy the evidence given at the hearing and Decision of the Hearing Officer. As the tenant subsequently advised, had she known this was an important if not central aspect of the case she would have explained that her boyfriend was now incarcerated and therefore no longer in position to create any further disturbances, cause any further damage and/or threaten any other occupants of the premises including Trevor Allen and his daughter. Since she was not personally present at the hearing she could not even respond to such evidence or new allegations since she was completely unaware of them. Indeed they were not commented on at all in the tenant’s written submissions which were quite properly received by the Hearing Officer and considered during the hearing. [13] The Hearing Officer, in accepting this “boyfriend related evidence” when neither the Hearing Notice nor the landlord’s complaint contained notice of it, breached the rules of natural justice and due process. The tenant could not have had notice of the nature and extent of the disturbance and damage allegations made related to her boyfriend nor would she have had any or adequate opportunity to respond to those allegations. Rules of procedural fairness and natural justice apply to the exercise by Hearing Officers and their conduct of hearings under the Act (see de la Sablonniére v. Sandhoff (1993), 1993 CanLII 9070 (SK QB), 108 Sask. R. 110 (Sask. Q.B.). [14] In that case McLellan J. observed at p. 113: [17] ... the notice to the tenant must contain sufficient particulars of the landlord’s claim so as to enable the tenant to prepare full and proper defence. If the notice fails to provide sufficient particulars the tenant is entitled to demand full and better particulars from the landlord. [15] These principles apply to this case on appeal. [16] find that both the failure to properly consider and grant the tenant the applied for adjournment in the particular circumstances of this case and the failure to provide the tenant with the particulars of the landlord’s claim constitute reversible error. In the result the appeal is allowed. This matter is returned to the Director to schedule a new hearing with the further direction that at least seven days clear notice be given of any new hearing date. [17] The landlord advised that the tenancy agreement, by its terms, was now at an end. The tenant responded that she had understood that she would be entitled, absent other circumstances, to stay in the premises until the end of April (April 30th) when her university course is ended. [18] This Court indicated to both parties that if these circumstances are the case and if the tenant should vacate the premises voluntarily at the end of April, as she advised the court she would do, all would be spared further time and inconvenience and the tenant or landlord should advise the office of the Director so that any new hearing scheduled can be cancelled. [19] The court directs that any appeal fees paid by her be returned to the tenant in this case. J. T. C. Zarzeczny
The tenant appeals the decision of the Hearing Officer granting her landlord a possession order of her rental premises. The tenant received notice of the hearing late on Friday when the hearing was set for Tuesday morning. She immediately requested an adjournment as she was unable to attend personally. The tenant also submits that the notice failed to disclose a significant aspect of the complaint, namely the conduct of her boyfriend. HELD: Appeal allowed and the matter returned to the Director to schedule a new hearing with at least 7 days clear notice to be given of the date. The decision to grant an adjournment is inherently discretionary and should be made with a view to what is necessary to ensure justice is done between the parties. This should include consideration of the complexity of the issues, the tenant's personal circumstances affecting her ability to attend in person on short notice and any prejudice to the landlord if the request is granted. There is no evidence that any of this was considered by the Hearing Officer. Three days (including a weekend) is not sufficient time to make arrangements and prepare for any hearing. It is clear that the tenant took the matter seriously and spent considerable time preparing written responses to the landlord's claim as she knew it to be. On the issue of sufficiency of the Notice, the Court found that while the Notice outlined many issues, it failed to disclose issues relating to her boyfriend. Since these issues were only discussed at the hearing the tenant was unable to attend she was not able to advise in person or in writing that her boyfriend was now incarcerated and the issue resolved. The Hearing Officer, in accepting evidence from the landlord about the boyfriend when neither the Hearing notice nor the landlord's complaint contained notice of it, breached the rule of natural justice and due process. The reasonableness standard of review applies here.