QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 252 Date: 2012 06 22 Docket: QB 80 of 2012 Judicial Centre: Moose Jaw BETWEEN: ROB GREY and STEPHANIE GREY and KEN STOROZUK and THE DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Norma E. Brunanski for the Appellants Ken Storozuk representing himself JUDGMENT SCHWANN J. June 22, 2012 [1] The tenants, Rob Grey and Stephanie Grey, appeal the decision of a hearing officer under s. 72 of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 (the Act). They contend the hearing officer, who rendered her decision on May 31, 2012, committed several errors of law and seek to have the matter remitted back for re-hearing. [2] The record on this appeal is comprised of the notice of appeal, the decision of the hearing officer and the hearing officer's file which includes documents filed by the parties along with file endorsements and notes. [3] The basic facts are these. The parties executed one year written residential lease on August 23, 2011. Rent was fixed at $1,100 per month payable on the first of each month. [4] By letter of April 1, 2012 the landlord gave the tenants 30 day notice of eviction for non payment of rent. The tenants were permitted to remain in the premises until the end of May provided they paid the balance owing on the March rent ($100) along with the full monthly rent for May. This notice was followed by subsequent letter of April 16th wherein the landlord demanded an immediate (24 hour) eviction from the premises. No grounds were specified in this letter nor did the tenants vacate the premises. [5] Its not completely clear from the file what, if anything the tenants paid in response to the April letters. Nevertheless, the landlord proceeded with an application for possession claiming rent arrears of $1,200 (May rent plus $100 for April). The tenants were given notice of hearing and the hearing proceeded before hearing officer on May 31, 2012. Both parties attended. [6] Based on the evidence before her, the hearing officer was satisfied the landlord's claim for non-payment of rent had been established and that an order for possession was warranted. The decision provided: "Nevertheless, the Landlord is willing to accommodate the Tenant and it is just and equitable to defer the Order for Possession, but only on the basis that the Tenant honour her commitment to pay the arrears and future rent. In lieu of an immediate Order for Possession, conclude that it is just and equitable to provide that an Order for Possession will issue immediately upon the Tenant failing to make the payments specified herein." [7] The so-called accommodation referred to above was payment of $800 by May 31, 2012 with further payment of $1,500 on or before June 15, 2012. In default of payment an order of possession was to issue. According to the landlord, neither amount was paid. The within appeal was filed before the order for possession issued and it has stayed execution of the order pending appeal. [8] While the tenants do not dispute that rent is owing, they contend an infestation of bed bugs in the residential premises has made it uninhabitable and forced them to incur personal expense to address this problem. Those facts, they submit, should have been considered by the hearing officer in the exercise of her ‘just and equitable’ discretion. Further, as the tenants had filed separate claim under the Act few days prior to the date of the hearing, the two claims should have been heard together they submit. [9] The third ground of appeal failure to properly serve was abandoned on appeal. [10] In Menke Holdings Ltd. Ritchie, 2000 SKQB 168 (CanLII), 197 Sask.R. 81 Batyton, J. made the following observations concerning the role and jurisdiction of this court on appeal: [15] conclude by commenting briefly on the role and jurisdiction of this Court in appeals from the decisions of the Rentalsman. The Act itself is clear that only errors of law or jurisdiction are appealable. As well, the case law limits the court to supervisory role. Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 117 D.L.R. (4th) (Sask. C.A.). Section 47(2)(c) of the Act provides the Rentalsman with the discretion to make decisions that he "considers just and equitable in the circumstances". Considerable deference will be extended to the Rentalsman by the court provided this discretion is exercised properly and judicially. McKay v. R.E.V. Ventures, [1997] S.J. No. 94 (Sask. Q.B.); Schoonover v. Caswell (1997), 1997 CanLII 11400 (SK QB), 154 Sask. R. 186 (Sask. Q.B.), Schoonover v. Caswell, 1997 CanLII 11401 (SK QB), [1997] W.W.R. 558 (Sask. Q.B.), Jimmy v. Namerind Housing Corp., 1999 SKQB 12 (CanLII), [1999] S.J. No. 534 (Sask. Q.B.). Menke elaborated upon the “just and equitable” discretion conferred upon hearing officers in adopting this court’s decision in Schoonover v. Caswell (1997), 1997 CanLII 11401 (SK QB), 157 Sask.R. 241 (QB). 16 Klebuc J. in Schoonover v. Caswell, supra, observed that the "just and equitable" provisions enable the Rentalsman to subject the exercise of legal rights to equitable considerations which may make it unjust or inequitable to insist on legal rights or exercise them in particular way. The court must bear this factor in mind when reviewing the legality of decisions and conclusions reached by the Rentalsman. [11] The tenants sought to file affidavit evidence in support of their appeal. As s. 72 appeal is an appeal on the record, affidavit evidence, as general rule, is inadmissible.(Williams v. Elite Property Management Ltd. 2012 SKQB 215 (CanLII), [2012] S.J. No. 345 (QL) at para 16) [12] have reviewed the affidavit of Robert Grey. At least half of it is recitation of facts with the balance consisting of Mr. Grey’s interpretation of how the hearing proceeded and difficulties he encountered advancing argument before the hearing officer. As previously stated, an appeal under s. 72 to this court is an appeal on the record alone based on an alleged error of law or jurisdiction; it is not fresh hearing. For this reason, the portions of his affidavit which are factual in nature and go to his substantive argument (i.e. the existence of and efforts made to combat bed bugs) are not admissible and will be disregarded. The portions, however, which relate to legal error will be taken into consideration. [13] The principal argument advanced by the tenants, put simply, is that in both deciding the merits of the landlord's application and in fashioning an appropriate remedy the hearing officer failed to take into account the alleged bed bug infestation, associated problems and expenses incurred. Subsections 70(6) and (11) are relied upon as sources of equitable discretionary authority available to the hearing officer which should have been considered and appropriately applied. [14] Section 70(6) clothes hearing officer with discretionary authority. The language of the provision is broad and unconstrained which suggests an intention to confer on hearing officers expansive discretionary authority exercisable "having regard to the objects and purposes of the Act and the facts presented in evidence." (Kensington Developments Inc. Huntley 2011 SKQB 386 (CanLII), [2011] S.J. No. 635 (QL); see also Williams) [15] Subsection 70(11) confers similarly worded discretionary authority exercisable where landlord seeks possession of rental unit. It provides: 70 (11) In any application by landlord for possession of rental unit, the tenant may also request an order of relief pursuant to this section and hearing officer may grant that relief if it appears to the hearing officer that: (c) the landlord has contravened provision of the tenancy agreement or has contravened any standard condition; [16] The tenants submit of s.70(11)(c) applies to their situation. They argue the landlord failed to ensure the residential premises were habitable and in so doing contravened the tenancy agreement. Section 70(11) contemplates relief for tenant if warranted on the facts. As observed in Williams at para 27: 27 ... Where notice to end the tenancy has been given as result of the tenant's non‑payment of rent, relief may be given to the tenant if the hearing officer is satisfied that it is just and equitable for such relief to be given. Subsection 70(12)(a) provides that such relief can include relief regarding payment of rent. [17] While there is little doubt the hearing officer has authority to invoke equitable principles and considerations, it does not necessarily follow that they must accede to tenant's position. Clearly, their authority is discretionary, not directory. Nevertheless, "armed with such jurisdiction, it is incumbent upon hearing officers both to consider whether to use it and, if so, to use it in judicial fashion". (Williams, para 28) [18] There is nothing in the decision appealed from to suggest the hearing officer either considered the evidence or argument put forth by the tenants. The decision is wholly silent on such matters. hearing officer, exercising judicial function, has duty to give meaningful reasons for the decision rendered. Gunn J. in Machiskinic v. Chen 2011 SKQB 39 (CanLII), 368 Sask.R. 169 said as follows at para 45: 45 So far as the duty to give reasons extends to setting forth the facts, the tribunal was not required, just as judges are not required, to refer to all of the evidence bearing upon fact in controversy: Woolaston v. Minister of Manpower and Immigration, 1972 CanLII (SCC), [1973] S.C.R. 102, supra. The mere failure to mention particular portion of the evidence, then, does not in itself amount to disregard or oversight. That said, it is commonplace among judicial and quasi‑judicial decision‑makers, whether explicitly or implicitly required to give reasons setting forth the facts and explaining the basis for their decisions, to refer to those portions of the evidence having significant probative value in relation to fact in controversy, particularly those portions with opposing force or weight, for it is here where the case on the facts rises or falls on balance. [Emphasis Added] [19] It is not apparent from the decision appealed from whether the hearing officer considered the tenant's evidence, made findings of fact in that regard or for that matter considered whether equitable jurisdiction should be invoked in the circumstances before her. As such I find the reasons inadequate to allow for meaningful review of the decision and for this reason the matter must be remitted back to the hearing officer for re‑hearing. [20] Having concluded the appeal should succeed for the reasons given, find it unnecessary to determine if the hearing officer erred in not considering the tenant's and the landlord's applications at the same time. The Act addresses powers, procedure, evidentiary issues, and to some extent scheduling, in sections 73-78. Notably, there is nothing in these provisions either prohibiting or requiring the director to schedule multiple applications relating to the same dispute to the same hearing date. To that extent, scheduling appears to be purely administrative function. In any event, the simple fact tenant’s application is not formally before hearing officer at the same time as landlord’s application does not bar hearing officer from either considering the facts put forth by the tenant (provided they relate to the landlord’s dispute) nor to give effect to the tenant’s facts and arguments in rendering decision and formulating an appropriate order. (see s. 70(11)) [21] The appeal is allowed. The decision of the hearing officer is set aside and the matter remitted back to the hearing officer for a re-hearing. J. L.M. SCHWANN
The tenants appealed a decision of a hearing officer under s. 72 of The Residential Tenancies Act. The hearing officer determined that the landlord's claim for non-payment of rent had been established and that an order for possession as warranted. The hearing officer directed that the order of possession would be deferred if the tenant paid the rent that was owing and future rent. The tenants argued that the hearing officer erred in not considering that the premises were infested with bed bugs and the tenants had been forced to incur personal expense to remedy the problem. They sought to adduce new evidence by affidavit on this point at the appeal. HELD: The Court declined to admit the affidavit evidence about bed bugs. However, the matter was remitted to the hearing officer for rehearing because the reasons provided by the hearing officer were deficient. The Court held that it was impossible to tell whether the hearing officer considered the tenants' evidence at the hearing, made findings of fact in that regard or whether equitable jurisdiction should be invoked in this situation. The reasons are inadequate to allow a meaningful review of the decision.