I Disagree with my Decision

The Basics

Residential Tenancy Branch Review Consideration

For a $50 application fee, a party can ask the Residential Tenancy Branch (RTB) to review a decision they have lost. This is not a chance to simply re-argue a case, as reviews are only granted in limited circumstances. According to the Residential Tenancy Act (RTA), these are the eligible grounds on which a party can apply for a Review Consideration:

1. a party was unable to attend any part of a hearing for reasons unanticipated and beyond their control (e.g. phone disconnection issues);
2. a party has new and relevant evidence that was not available at the time of the original hearing;
3. a party has evidence that the decision or order was obtained by fraud;
4. a party, due to circumstances that could not be anticipated and were beyond their control, submitted material evidence after the deadline, but before the original hearing, and that evidence was not before the arbitrator at the original hearing (e.g. hospitalization);
5. there was an administrative, procedural, or technical error that materially affected the result of the original hearing (e.g. documents uploaded to the wrong file);
6. the arbitrator did not determine an issue that they were required to determine; and
7. the arbitrator determined an issue that they did not have jurisdiction to determine.

The RTB has the power to conduct a review on its own initiative, rather than waiting for a party to apply.

See section 79 of the RTA for more information.

Deadlines

There are different application deadlines, depending on the nature of the dispute. For the following types of decisions, there is a two-day deadline from the time the person receives the decision:

• unreasonable withholding of consent to assign or sublet;
• eviction for non-payment of rent;
• order of possession for the tenant or the landlord; and
• application to end a tenancy early.

For the following types of decisions, there is a five-day deadline from the time the person receives the decision:

• repairs or maintenance;
• services or facilities; and
• any eviction notice other than one for non-payment of rent.

For all other types of decisions, there is a 15-day deadline from the time the person receives the decision. See section 80 of the RTA for more information.

Residential Tenancy Branch Correction and Clarification

If a decision is unclear or contains a mistake, a party can submit Residential Tenancy Branch (RTB) Form, Request for Correction or Request for Clarification, free of charge. The applicant does not have to notify the other party of this application, unless the arbitrator instructs them to do so.

For some types of issues, such as the following, there is a 15-day deadline to apply from the date the decision was received:

• the decision is too difficult to understand or ambiguous and needs to be clarified;
• the decision contains an obvious error; or
• the decision accidentally left something out.

For other types of issues, such as the following, the 15-day deadline may not apply:

• the decision has a typo;
• the decision has grammatical errors; or
• the decision has a math error.

See RTB Policy Guideline 25 and section 78 of the Residential Tenancy Act (RTA) for more information.

BC Supreme Court Judicial Review

If you receive a dispute resolution decision that you think is unfair, but does not fit the criteria for a Residential Tenancy Branch (RTB) Review Consideration, you might have to consider a Judicial Review application through BC Supreme Court. The fee to apply for a Judicial Review is $200 and the deadline is 60 days from the date of the decision.

The standard of review for Judicial Review applications is quite high, due to the fact that the RTB has exclusive jurisdiction over disputes under the Residential Tenancy Act. The BC Supreme Court considers the RTB an expert tribunal, which means that in the vast majority of cases, a judge can only intervene and set aside an RTB decision if there was a denial of procedural fairness or a patently unreasonable error:

1. Procedural Unfairness. Section 58 of the Administrative Tribunals Act says that “questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly.” The BC Supreme Court has found that procedural fairness consists of two rights: the right to be heard and the right to an impartial hearing.
2. Patent Unreasonableness. Section 58 of the Administrative Tribunals Act says that a finding of fact or law or an exercise of discretion by the RTB can only be interfered with by the court if it is patently unreasonable. A discretionary decision is patently unreasonable if it:

• is exercised arbitrarily or in bad faith;
• is exercised for an improper purpose;
• is based entirely or predominantly on irrelevant factors; or
• fails to take statutory requirements into account.

If a BC Supreme Court judge finds a decision to be procedurally unfair or patently unreasonable, they will usually refer the matter back to the RTB and order that another hearing be held. This means that even if you are successful with a Judicial Review application, there is no guarantee that you will win your new dispute resolution hearing at the RTB.

Key Resource: The Judicial Review process is much more complicated than the dispute resolution process. If you think you have received a decision that is procedurally unfair or patently unreasonable, TRAC’s Housing Law Clinic can provide free legal advice and/or representation regarding Judicial Review applications. See TRAC’s webpage, Legal Representation, for more information on how to speak to a TRAC lawyer about your case.

Key Resource: The Community Legal Assistance Society (CLAS) is non-profit organization that provides free legal advice and/or representation regarding Judicial Review applications. If you are a tenant whose housing is at risk because you unfairly lost a dispute resolution hearing, a CLAS lawyer might be able to help. See CLAS’s webpage, Losing Your Housing, for more information on how to speak to a CLAS lawyer about your case. CLAS also offers an online Judicial Review Self-Help Guide.

Office of the Ombudsperson Complaint

You can file a complaint with the Office of the Ombudsperson if you think that the Residential Tenancy Branch has treated you unfairly. The Ombudsperson investigates provincial government ministries and agencies to ensure fairness. Filing a complaint will not change the outcome of your hearing, but may help future tenants avoid unfair treatment.

• The Office of the Ombudsperson – How to make a complaint
• Community Legal Assistance Society – Residential Tenancy Branch Ombudsperson Complaint Kit