M.L. Gray QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 18 Date: 2007 01 15 Docket: Q.B. No. 428/2006 Judicial Centre: Yorkton IN THE MATTER OF SECTION 49(1) OF THE RESIDENTIAL TENANCIES ACT BETWEEN: RICH-PROP INVESTMENTS INC. and VERNON ANDRES, IVY ANDRES and RICHIE ANDRES RESPONDENTS and THE OFFICE OF THE RENTALSMAN Appearing: Wayne M. Rusnak, Q.C. for the appellant Vernon Andres appearing for himself No one appearing for Ivy Andres and Richie Andres No one appearing for the Office of the Rentalsman JUDGMENT GUNN J. January 15, 2007 [1] This is an appeal by Rich-Prop Investments Ltd. (the “Landlord”) pursuant to s. 49 of The Residential Tenancies Act, R.S.S. 1978, c. R-22, as am. S.S. 1992, c. 37 (the “Act”) from a decision of the Deputy Rentalsman (the “Rentalsman”) who, pursuant to s. 47 of the Act dismissed an application by the Landlord for a writ of possession. [2] The issues are whether all the tenants had proper notice of the termination of the tenancy and the hearing, whether the landlord could give notice of termination of the tenancy without any cause, and whether the Rentalsman could refuse to grant an order for writ of possession when there was an outstanding order of the Rentalsman which postdated the application in question. [3] The Landlord’s Notice of Appeal which was filed within the 30-day period set out the following: (a) The Rentalsman erred in law in holding that: (i) some type of cause should be behind any eviction; (ii) request for an order may be refused to be issued to landlord who is in contravention of an order from the Office of the Rentalsman; (iii) Statutory Condition 19 of Section 20 has application to termination of tenancy. [4] The material available for review is limited to the Notice of Appeal from the decision of the Deputy Rentalsman filed by the appellant and the documents filed and the decision of the Rentalsman. [5] The pertinent materials appear to be the following: (a) There is document with the title “Rental Agreement.” It provides in part the following: I/We Vern/Ivy/Richie Andres (“the tenant”), hereby offer to rent the property known as ... in the city of Yorkton, subject to the following conditions: 1. The cost of the rent will be $545.00 per month, payable monthly in advance on or before the 1st day of the month. 2. The term of this rental agreement will be for commencing on April 1-03 and terminating on 3. The premises will be occupied by no more than persons. 4. Vacating notice must be given calendar month prior to the expiration of this rental agreement, failing which this agreement will become monthly rental agreement subject to calendar month notice of termination.... Signed at Yorkton on this the day of March 2003 “V.R. Andres” ... “The Tenant” Witness Accepted on behalf of Richprop Investments Inc. on this the day of 20 On behalf of “the Landlord” (b) Notice to Tenant dated July 24, 2006 directed to Vern Andres, Ivy Andres and Richie Andres notifying them of the cancellation of their tenancy agreement with the Landlord no later than midnight, August 31, 2006 was served personally on Vern Andres on July 26, 2006 and on Ivy Andres on July 27, 2006. There is no evidence of service of the notice on Richie Andres. (c) The Application for Claim under the Act dated September 1, 2006 sets out the following persons as tenants: “Vern Richie Andres” and “Ivy Andres.” The Landlord’s application is claiming an order for possession based on Notice to Terminate Lease. The Landlord seeks writ of possession. (d) The Hearing Notice is directed to Vern Andres, Ivy Andres and Richie Andres. This hearing notice contains the following information: Notice to terminate served on 26/07/2006 (Day/Month/Year) hereby certify this claim to be correct Rusnak Balacko Kachur Rusnak Per: “Wayne M. Rusnak’ Wayne M. Rusnak, Q.C. The hearing was set for September 21, 2006. (d) letter dated September 13, 2006 and directed to Vern Andres, Ivy Andres and Richie Andres, and signed by Helen Burka, Manager (Rich-Prop Investments Inc.) provided as an enclosure copy of the Notice of Hearing and Claim, and further provided notice that the hearing would be held on September 21, 2006 at 2:30 p.m. This letter was placed in the mail addressed to the tenants on September 13, 2006 and posted on the main entrance to the rented premises on the same date. (e) The decision of the Deputy Rentalsman is dated September 26, 2006 and names Vern Andres and Ivy Andres as tenants. There is nothing in the decision relating in any way to Richie Andres. [6] Sections 22, 23 and 25 of the Act permit either landlord or tenant to terminate monthly tenancy. [7] These sections provide as follows: 22(1) ... monthly ... tenancy may, unless otherwise mutually agreed upon between the landlord and the tenant, be terminated by the landlord or the tenant upon written notice to the other, which notice shall: (a) meet the requirements of section 23; (b) be given in the manner prescribed by section 24, 25 or 26, as the case may be.... 23(1) notice of termination of tenancy agreement by landlord or tenant shall be in writing and shall: (a) be signed by the person giving the notice or by his duly authorized agent; (b) identify the premises in respect of which the notice is given; and (c) state the date on which the tenancy is to terminate.... 25(1) notice to terminate monthly tenancy shall be given not later than the last day of any month of the tenancy to be effective on the last day of the immediately following month of the tenancy. [8] Service of the notice to terminate is governed by s. 60 of the Act. It reads in part as follows: 60(1) Except as otherwise provided in this Act or directed by the Rentalsman: (a) any notice or other document required or permitted to be served or delivered by landlord to tenant shall be served personally on the tenant or served by leaving copy with an adult person apparently residing in the premises of the tenant or shall be served on the tenant by ordinary mail; (b) any other notice or document required or permitted to be served or delivered pursuant to this Act is sufficiently served or delivered if served or delivered personally or sent by ordinary mail. [9] Notice to Tenant providing that the tenancy agreement was being cancelled by the Landlord effective August 31, 2006 was served personally on Vern Andres and Ivy Andres on July 26 and July 27 respectively. There is no evidence it was ever served on Richie Andres. However, pursuant to the provisions of s. 60, it appears to be permissible to serve an adult person apparently residing in the premises of the tenant. Accordingly there was no need to personally serve Richie Andres in the circumstances. It was served within the time permitted pursuant to s. 25(1) of the Act. [10] The tenants failed to vacate the premises in accordance with the Notice to Tenant and the Landlord applied to the Rentalsman for writ of possession. The application is governed by s. 47 of the Act which provides in part as follows: 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.... (1.1) Subject to subsection (5.1), if an application is made to the Rentalsman pursuant to subsection (1) ... the Rentalsman shall issue to the applicant written notice of hearing and the applicant shall serve that notice on those persons concerned with the matter that the Rentalsman may direct and in the manner the Rentalsman may direct. (1.2) The Rentalsman shall issue written notice of hearing and cause the notice to be served on all parties concerned with the matter where: (a) the Rentalsman becomes aware of possible contravention or failure to comply with this Act, the regulations, an order made pursuant to this Act or tenancy agreement; and (b) the Rentalsman determines that it is in the public interest to hold hearing. (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.... (b) shall hold hearing; (c) after holding hearing pursuant to clause (b), may make any order the Rentalsman considers just and equitable in the circumstances.... (2.1) For the purposes of hearing pursuant to clause (2)(b): (a) submission may be made: (i) orally, including by telephone; or (ii) in writing; and (b) another party to the hearing is to be given an opportunity to rebut submission mentioned in clause (a) at the time of the hearing, or at later time, and in the manner the Rentalsman considers appropriate. (3) Upon making an order under clause (c) of subsection (2), the Rentalsman shall provide copy of the order and copy of section 49 to each party involved in the matter in respect of which the order was made. (5.1) The Rentalsman may refuse to issue written notice of hearing to, or decline to make an order respecting, landlord who: (a) is in contravention of an order of the Rentalsman.... [11] notice of hearing directed to Vern Andres, Ivy Andres and Richie Andres was issued by the Rentalsman setting hearing date for September 21, 2006 at 2:30 p.m. [12] The Notice of Hearing and Claim were served by Helen Burka, the manager of the property in question by placing it in the mail at #18 336 Gladstone Avenue S. Yorkton, SK and by posting true copy of the Notice of Hearing and Claim on the main entrance to #18 336 Gladstone Avenue S. Yorkton, Sk both on September 13, 2006. [13] The Rentalsman proceeded with the hearing on September 21, 2006. No notes have been provided by the Rentalsman with respect to the hearing. The only evidence of what transpired is contained in the decision rendered. The decision states as follows: ... The Notice of Hearing was properly served. Evidence was presented or given by the following persons: Helen Burka for the Landlord and represented by Wayne Rusnak; Vernon Andres for the Tenants. Both parties appeared by way of telephone conference call. The tenants who are named in the decision are: Vernon and Ivy Andres. There is no reference whatsoever to Richie Andres, whose name appears on the tenancy agreement. [14] In Sylvestre v. Vu, 2004 SKQB 533 (CanLII), (2004), 260 Sask. R. 308 (Q.B.), Ball J. considered the issue of service of the notice of hearing. In Sylvestre, supra, the landlord placed the notice of eviction and notice of hearing in an envelope which he slipped under the back door of the residential premises, and on the same day mailed the notice of hearing to the tenant by regular mail. Ball J. said the following on the issue of service at para 10: ... The notice of hearing must be personally served on the tenant, served in compliance with directions pursuant to s. 47(1.1) of the Act, or served in accordance with the provisions of s. 60 of the Act. The requirements for notice are based on the rules of natural justice which entitle person whose rights may be affected by hearing to receive reasonable notice of that hearing and an opportunity to be heard.... [15] Even though the decision states that the Notice of Hearing was properly served, that cannot be the end of the matter given that there is nothing in the file which would indicate any directions having been given to the Landlord with respect to service other than personal service. Ivy Andres did not appear at the hearing, nor did Richie Andres and the decision does not even identify Richie Andres as being one of the tenants. More is required to ensure service of and notice to all the tenants. [16] Subsection 60(5.1) permits the Rentalsman to order that service is sufficient, even if not in compliance with the Act if, in the opinion of the Rentalsman, the notice or other document came to the attention of the person to be served. Here, there are no notes, nor is there anything in the decision which would permit me to conclude that the issue of service on Ivy and Richie was ever considered by the Rentalsman. In my view the matter must be returned to the Rentalsman for a rehearing upon proof of service of the hearing on all of the tenants. [17] While that disposes of the appeal, there are some other matters which are the subject of the Notice of Appeal and which merit obiter comment. [18] The decision was rendered September 26, 2006. It provides in part as follows: The Tenant, Vernon Andres ... also made mention that he is disabled and his parking closer to the door of the complex was because of those physical problems. The Tenants are no longer parking in visitor or firelane spaces. The Landlord takes the position that this is monthly tenancy and that landlord simply has to provide the proper full calender month’s notice and the tenancy should end. The Landlord has fulfilled those basic requirements. ... am of the opinion that some type of cause should be behind any eviction. If there is no good reason to end tenancy, then why would you want to evict someone if you are in the business of renting. One hesitates to say, but is must be for improper reasons. The thrust of [the Act] as stated in the Saskatchewan Court of Appeal case of Reich v. Lohse (1994) 1994 CanLII 4691 (SK CA), 123 Sask. R. 114 is to ... “provide tenants with some security of tenure.” With those considerations come the ability to order what is “just and equitable” in Section 47(2)(c) of the Act. The only reason provided to this hearing to end the tenancy was because of improper parking and the Tenants are not doing that anymore. It would not seem fair to evict on those grounds alone. ... Lastly, Statutory Condition 19 of Section 20 of the Act states that if party wishes to terminate tenancy because of breach of term of the agreement or Section 20 of the Act, then written notice must be provided to allow the other party reasonable period of time to remedy the problem. In this situation, the written lease did not mention parking stalls but it must be subsequent or implied agreement to park in designated places only. Otherwise, if not term, then tenants can park anywhere on the grounds. The Act allows written, verbal and implied tenancy agreements. The Tenant was not given any written notification of any breach and therefore the Landlord had not complied with the legislation to be able to terminate and take possession of the rental premises. [19] This leads to the question whether the Landlord must prove that it would be just and equitable to grant writ of possession. The Rentalsman has found as fact that the Landlord has satisfied the basic requirements of the Act to terminate monthly tenancy. [20] In Sturgess v. Gladmer Developments Ltd., [1975] S.J. No. 46 (QL) (D.C.), McIntyre D.C.J. said the following in relation to subsection 35(3), the predecessor to s. 47, as follows at paras. 19 ... must determine if the mere giving of notice of termination based on [an] alleged contravention of the policy of the landlord is sufficient to permit the landlord to obtain writ of possession. 20 am of the view that something more than the mere giving of notice of termination is required and that must give meaning to the words “make such order as consider just and equitable”.... [21] Justice McIntyre found that no injustice or inequity would result to the landlord if the tenancy continued; whereas writ of possession would be unjust and inequitable to the tenant. [22] In Schoonover v. Caswell, 1997 CanLII 11401 (SK QB), [1997] W.W.R. 558; (1997), 157 Sask. R. 241 (Q.B.), Klebuc J. (as he then was) considered the Gladmer decision, supra, and found nothing in it to support the proposition that in all cases the landlord must prove that the issuance of writ of possession would be just and equitable. Klebuc J. concluded in Schoonover, supra, that the rentalsman had erred in law by requiring the landlord to prove on balance of probabilities that the issuance of the requested writ of possession was just and equitable. [23] This issue was also considered directly by Justice Foley in Leddy v. Turanich Acquisitions Management Inc., 2004 SKQB 153 (CanLII); (2004), 251 Sask. R. 81 (Q.B.) who said the following at paras. [7] In my opinion, for the reasons which follow, the Rentalsman erred in law in his adoption and application of Sturgess v. Gladmer, in his insistence on reasons being given for the Landlord’s termination and in any event in his conclusion that the “consistently late rent payments” were, in the circumstances of this case, breach of the terms of the tenancy. [8] The Landlord in its initial application to the Rentalsman and in its claim as certified, asserted that it had served notice to terminate on the Tenant on December 31, 2003 requiring the Tenant to vacate by January 31, 2004 and, as the Tenant refused to vacate, it was entitled to an order for possession. For the Landlord to succeed on this claim it would have been obliged to demonstrate to the Rentalsman at the hearing that: (a) the tenancy agreement was one for monthly tenancy such that notice provisions of s. 25(1) are applicable; (b) written notice was served on the Tenant “not later than the last day of any month of the tenancy to be effective on the last day of the immediately following month of the tenancy”; and (c) the notice contained the minimum requirements of s. 23(1) namely, signed with the premises identified and the date set out upon which the termination is effective. [9] These provisions do not require the Landlord to have cause or disclose cause. [24] agree with the views expressed by Foley J. [25] few additional issues remain. There is written rental agreement, but the evidence would indicate that it was signed by only one tenant and not by the Landlord. The statutory conditions set out in s. 20 of the Act were not included in the rental agreement. [26] And finally, after the notice to vacate was served on the tenants they brought an application pursuant to the Act concerning certain repairs to the premises. The hearing was held and the decision was rendered on that application prior to the hearing on the question of the right of the Landlord to obtain writ of possession. Is the Rentalsman entitled to refuse to issue writ of possession, relying on subsection 47(5.1) of the Act on the basis that the Landlord is in contravention of an order of the Rentalsman in these circumstances? What is the relevance of the Landlord’s assertion that it did not have notice of this hearing? [27] Neither the Landlord nor the tenant were in position to address these issues on the hearing of the appeal. [28] I direct that the matter be remitted to the Rentalsman for a rehearing upon proof of service of the Notice of Hearing on all of the tenants. [29] There will be no order as to costs.
This is an appeal by the landlord pursuant to s. 49 of The Residential Tenancies Act from a decision of the Deputy Rentalsman who, pursuant to s. 47 of the Act dismissed an application by the landlord for a writ of possession. HELD: The matter will be remitted to the Rentalsman for a rehearing upon proof of service of the Notice of Hearing on all of the tenants.  1) The tenants who are named in the decision are Vernon and Ivy. There is no reference to Richie whose name appears on the tenancy agreement. 2) Even though the decision states that the Notice of Hearing was properly served, that cannot be the end of the matter given that there is nothing in the file which would indicate any directions having been given to the landlord with respect to service other than personal service. Ivy and Richie did not appear at the hearing and the decision does not even identify Richie as being one of the tenants. More is required to ensure service of and notice to all the tenants. 3) There are no notes nor is there anything in the decision which would permit the Court to conclude that the issue of service on Ivy and Richie was ever considered by the Rentalsman. The matter must be returned to the Rentalsman for a rehearing upon proof of service of the hearing on all of the tenants.