J. 2003 SKQB 223 Q.B.G. A.D. 2003 No. 516 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GRANT ROBERTS and McCALLUM PROPERTY MANAGEMENT LTD. and OFFICE OF THE RENTALSMAN RESPONDENT Grant Roberts appearing for himself A.M. Tetu for the respondent, McCallum Property Management JUDGMENT GEREIN C.J.Q.B. May 12, 2003 [1] This is an appeal by a tenant against a decision awarding his former landlord $1,245.00. The appeal questions the correctness of the award and the validity of the notice of the hearing. need deal only with the latter. [2] When the tenant vacated his rented premises there was dispute about what constituted proper notice. In consequence, the landlord applied to the Office of the Rentalsman for determination of the issue. notice of hearing, returnable January 9, 2003, was purportedly sent to the tenant by registered mail and delivered on November 28, 2002. This conclusion is based on Canada Post document which states an item was delivered to the customer on November 28, 2002. The item is not described and the customer is not named. The document does state the item was signed for by one J. Moller Warmedal who is not the tenant. [3] In fact, the tenant never did receive the notice. Rather, his father became aware of it on December 31, 2002, and contacted his son who was then absent from the country. The father appeared at the hearing and objected to the service of the notice of hearing. The Deputy Rentalsman refused to give effect to the objection; proceeded with the hearing; and made the award of $1,245.00. [4] In her written decision the Deputy Rentalsman made these comments about service of the notice of hearing. hearing was held on January 9, 2003 at Saskatoon, Saskatchewan. The Hearing Notice was served by registered mail to the Tenant’s workplace. Someone other than the Tenant signed for the registered mail. The Tenant’s father attended the hearing indicating that the Tenant was out of the country. The Tenant was not seeking an adjournment and the Tenant’s father, Robert Buirds, indicated that he was acting as the Tenant’s agent only in so far as to argue that the Tenant had not been properly served. Mr. Buirds indicated he has communicated with the Tenant several times regarding the Landlord’s claim. Mr. Buird further indicated that the Tenant was aware of the Landlord’s claim. The Hearing Notice sets out that the Landlord’s application is to be served personally or by registered mail. The purpose of requiring this type of service is two fold; firstly to ensure that the Tenant is aware of the date, time and place of the hearing and secondly to ensure that the Tenant is aware of the particulars of the Landlord’s claim. find in the circumstances of this case that these purposes for services (sic) have been met. The Tenant obviously was aware of the date, time and place of the hearing as well as the particulars of the Landlord’s claim. ruled that the hearing would proceed. In proceeding as she did, the Deputy Rentalsman acted pursuant to s. 60 of The Residential Tenancies Act, S.S., c. R-22, the relevant portions of which are the following. 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. (2) Service of notice or other document pursuant to this Act or the regulations may be proved by affidavit of the person effecting such service and there shall be exhibited to the affidavit copy or duplicate of the notice or other document. (5) Where notice or other document is served by sending it by ordinary mail, it shall be deemed to have been served on the third day after the date of the mailing of the notice or document. (5.1) Notwithstanding that service of notice or other document does not comply with this Act, the Rentalsman may order that the service is sufficient if, in the opinion of the Rentalsman, the notice or other document came to the attention of the person to be served. (5.2) Notwithstanding that person is deemed to have been served pursuant to subsection (5), that person may bring evidence to prove that he or she was not served or was served on later date. [5] Section 60 is concerned with the method of service. It sets out how service is to be effected and s. 60 (5.1) empowers the Rentalsman to validate defective service provided the notice came to the attention of the person to be served. Despite the landlord’s failure to strictly comply with s. 60(1)(a), the tenant did receive notice of the particulars of the claim and the place and time of the hearing. Accordingly, no reversible error occurred when the Deputy Rentalsman held that the purposes for service had been met. [6] However, that is not the end of the matter. The Office of the Rentalsman has decreed that there must be at least ten days notice of claim for an order such as that obtained in this instance. This is set forth on the back of the hearing notice in these words. landlord claim for any other type of order must be served either (a) personally on the tenant(s) at least 10 days before the hearing or by Registered Mail and obtaining Delivery Confirmation that clearly shows that the tenant(s) has signed for and accepted the notice at least 10 days before the hearing. [7] Section 60(5.1) of the Act does not speak to abridging the time for service and no such authority is to be found elsewhere. In fact, the Deputy Rentalsman never addressed the subject. [8] In this instance, the tenant received notice of the hearing on December 31, 2002. That day and the day of the hearing must be excluded in calculating the notice period. See s. 24(4) of The Interpretation Act, S.S., c. I-11.2. It follows that in this case the tenant received only eight days notice. He was entitled to insist on ten days notice and by denying him that period of notice the Deputy Rentalsman committed an error in law. [9] In the result, the appeal is allowed; the award is set aside; and it is ordered that there be a new hearing on a date to be fixed by the Rentalsman. There will be no costs.
An appeal of an award of $1,245. The tenant's father contacted him about the hearing while he was out of the country. The father appeared at the hearing and objected to service of the hearing notice. HELD: The appeal was allowed. The award was set aside and a new hearing was ordered. The Deputy Rentalsman committed an error in law by denying 10 days notice. The Landlord and Tenant Act s.60(5.1) empowers the Rentalsman to validate a defective service provided the notice came to the attention of the person to be served. The day the notice was received and the day of the hearing must be excluded in calculating the notice period (Interpretation Act s.24(4)). In this case the tenant received only 8 days notice. No costs.