Alberta landlords association

Alberta Residential Tenancy Dispute Resolution service

PDF Version: Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done

Case Commented On: Abougouche v Miller, 2015 ABQB 724 (CanLII)

As the recently-appointed Master in Chambers, James R. Farrington, clearly and concisely sets out in Abougouche v Miller, there is no way for a tenant to have an order made by the Residential Tenancy Dispute Resolution Service (RTDRS) set aside if a tenant fails to appear at the hearing before a Tenancy Dispute Officer because the tenant did not receive actual notice of that hearing. The tenant cannot go back to the Tenancy Dispute Officer; that person only has the power to correct typographic, grammatical, arithmetic or other similar errors in their orders, clarify their orders, and deal with obvious errors or inadvertent omissions in their orders (Residential Tenancy Dispute Resolution Service Regulation (RTDRS Reg), Alta Reg 98/2006, section 19(1)). The tenant cannot apply to the only body with the power to cancel or vary an RTDRS order — the Court of Queen’s Bench (sections 23(1) and 25(1)(b) RTDRS Reg) — because new evidence is not permitted on appeals (section 25(1) RTDRS Reg) and evidence about service in technical compliance with the regulations but inappropriate nonetheless would be evidence that was not before the Tenancy Dispute Office, i.e., new evidence. So a tenant — even a tenant as apparently well-prepared with legal arguments as the self-represented tenant was in this case — has no opportunity to be heard on the merits. Worse, a tenant like Ms. Miller, who appears to have vacated the rented premises because of significant deficiencies, including internal flooding, seems to be set up by the Residential Tenancies Act (RTA), SA 2004, c R-17.1. That Act allows her landlord to serve notice of a RTDRS hearing on her by posting it on the rented premises that she vacated, even if the landlord knows the tenant has vacated those premises, even if she vacated for good reasons, and even if the landlord is still in regular communication with the tenant by email and text messages about the deficiencies in the rented premises (section 57(3) RTA).

Ms. Miller rented premises from Mr. Abougouche on or about March 1, 2015. Various concerns about the condition of the premises and the payment of rent arose during the short tenancy. When the premises were damaged by internal flooding on September 7, 2015, the tenant left. Master Farrington found that it was clear that rent was not paid for at least one month (at para 6), although he does not indicate if this was before or after the flooding.

The landlord applied to the RTDRS. He served the tenant with notice of the RTDRS hearing by posting the required documents on the rented premises on October 5, 2015. This is allowed by section 57 RTA if the tenant has vacated the premises:

57 (3) If a landlord is unable to effect service on a tenant by reason of the tenant’s absence from the premises or by reason of the tenant’s evading service, service may be effected

(a) on any adult person who apparently resides with the tenant, or

(b) by posting the notice, order or document in a conspicuous place on some part of the premises (emphasis added).

Source: ablawg.ca
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