Participating In a Hearing
Questioning Witnesses / Clients
BC tenants and landlords should be familiar with the Residential Tenancy Branch (RTB) – the department of the provincial government in charge of residential tenancy law. The RTB runs an administrative tribunal that can rule on or “adjudicate” legal disputes between tenants and landlords.
This service – known as “dispute resolution” – is similar to court in some respects, but offers a more affordable and accessible adjudication process. For example, the standard application fee is only $100, and most hearings are conducted over the phone with an arbitrator, rather than a judge. When tenants and landlords cannot resolve legal disputes on their own, the solution is rarely to hire a lawyer and go to court. The vast majority of rental disputes in BC must be adjudicated through the RTB’s dispute resolution process.
Key Resource: Rules of Procedure for Dispute Resolution
The Residential Tenancy Branch (RTB) adjudicates most rental disputes in BC, but there are some exceptions. If your tenancy is not covered by the Residential Tenancy Act (RTA) – or if it is covered, but the type of dispute falls outside the jurisdiction of the RTB – you may have to access a different tribunal or court. Here are the most common examples:
- Civil Resolution Tribunal. The RTB adjudicates disputes between tenants and landlords. If you have an issue with another tenant or occupant with whom you live, you can apply to the Civil Resolution Tribunal (CRT) for assistance. For example, one common living situation that is not covered under the jurisdiction of the RTB is where a “head-tenant” rents out bedrooms to their roommates. The CRT can handle monetary claims up to $5,000.
- Small Claims Court. For disputes that fall outside the jurisdiction of the RTB, but also exceed the limit at the CRT, Small Claims Court can handle claims between $5,001 and $35,000. In addition, if you are awarded monetary compensation through the RTB but your landlord refuses to pay, you will have to apply to Small Claims Court to enforce your monetary order.
- BC Supreme Court. Tenants and landlords are generally not allowed to bypass the RTB and ask the BC Supreme Court to adjudicate rental disputes. The RTB is considered an expert tribunal, which means the court shows a high level of deference in allowing it to resolve residential tenancy law matters. The BC Supreme Court only handles monetary claims over the RTB’s limit of $35,000. (There is one exception to this rule: if you are claiming 12 months’ rent as compensation under section 51(2) or 51.3 of the RTA, you can apply to the RTB even if the total compensation exceeds $35,000.)
- BC Human Rights Tribunal: The BC Human Rights Tribunal is responsible for accepting, screening, mediating, and adjudicating human rights complaints. If you have faced discrimination under section 10 of the BC Human Rights Code, you can contact the BC Human Rights Tribunal for assistance.
- Office of the Information and Privacy Commissioner for BC (OIPC BC): The OIPC BC provides independent oversight and enforcement of BC’s access and privacy laws. They also offer a series of guidance documents, including one titled, Private Sector Landlords and Tenants. If you have any concerns about your landlord’s collection of personal information, you can contact the OIPC BC for assistance.
Types of Orders
Arbitrators have the power to settle legal disputes on a range of topics. An arbitrator can:
- order your landlord to follow the law;
- order your landlord to pay you money, or “damages”;
- order your landlord to repair your rental unit;
- prevent your landlord from entering your rental unit;
- give you permission to change your locks;
- give you permission to withhold money from future rent payments; and
- cancel an eviction notice that your landlord has given you.
Multiple claims: Arbitrators can rule on multiple claims at the same hearing – as long as they are related and have been included as part of the same dispute resolution application. If you forget to list a claim on your application, or try to add an unrelated one, you may have to submit a second application for a separate hearing.
The rules about natural justice and procedural fairness apply to the dispute resolution process. According to Section 58 of the Administrative Tribunals Act, “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 also found that procedural fairness consists of two rights: the right to be heard and the right to an impartial hearing. Here are some examples of issues that may be considered breaches of procedural fairness:
- you were not given sufficient notice of a hearing and therefore could not attend or adequately prepare;
- the arbitrator did not allow you to speak or present your evidence;
- the arbitrator did not allow you to question the opposing party;
- the arbitrator relied on documentary evidence that you never received and therefore could not adequately respond to; and
- the arbitrator had a personal interest in the outcome of your hearing.
Standard of Proof and Onus of Proof
The standard of proof at dispute resolution is on a “balance of probabilities”. This means that arbitrators will consider a range of factors, such as the law, relevant evidence, and credibility, in order to reach a decision based on what they believe most likely occurred. The standard of proof at dispute resolution is therefore lower than the standard of proof at a criminal trial, where the defendant must be proven guilty beyond a reasonable doubt. When participating in the dispute resolution process, the goal is to present a clear and convincing argument that pushes your version of events beyond a 50% probability in the eyes of the arbitrator.
The onus of proof at dispute resolution is almost always on the applicant. In other words, the person making the claim and initiating the hearing usually has the primary responsibility to prove their case to the arbitrator. While this arrangement makes sense for most disputes, there is one major exception to this rule: when a tenant applies for dispute resolution to challenge an eviction notice, the onus of proof gets reversed and the landlord, as the respondent, must bear the primary responsibility to prove their case to the arbitrator.
See section 6.6 of the RTB Rules of Procedure for more information.
Arbitrators have the authority to conduct dispute resolution hearings as they see fit, but proceedings generally flow as follows:
- Arbitrator handles introductions
- Parties are sworn in or affirmed
- Arbitrator considers preliminary matters and procedural issues, such as service of documents
- Applicant presents evidence
- Respondent challenges applicant’s evidence through cross-examination
- Respondent presents evidence
- Applicant challenges respondent’s evidence through cross-examination
- Applicant makes closing argument
- Respondent makes closing argument
- Arbitrator concludes the hearing
Most dispute resolution hearings are scheduled for one hour, though arbitrators have discretion to extend a hearing beyond that length of time and/or adjourn it to a later date. It is important to remember that you are entitled to procedural fairness at dispute resolution, which includes the right to be heard. If an arbitrator attempts to end your hearing prematurely, without giving you adequate time to present your evidence and otherwise argue your case, you can request that the hearing be extended or adjourned.
At the start of a hearing, the arbitrator will introduce themselves and make both parties aware that the oral statements they provide will be under oath or affirmation. The arbitrator will also consider any preliminary matters and procedural issues that have been raised, including but not limited to:
- service of documents;
- adding a related matter;
- amending the application; and
Before connecting to the conference call, make sure to have a pen and paper or computer ready so you can take notes throughout the hearing. This will help you write down the names of everyone attending, come up with questions for cross-examination, and tweak your closing argument as the hearing progresses.
See section 7.7 of the Residential Tenancy Branch (RTB) Rules of Procedure for more information.
Requesting an Adjournment
According to the Residential Tenancy Branch Rules of Procedure, arbitrators will consider the following factors when considering a request to adjourn a hearing:
- the oral or written submissions of the parties;
- the likelihood of the adjournment resulting in a resolution;
- the degree to which the need for the adjournment arises out of the intentional actions or neglect of the party seeking the adjournment;
- whether the adjournment is required to provide a fair opportunity for a party to be heard; and
- the possible prejudice to each party.
See section 7.9 of the RTB Rules of Procedure for more information.
While it is important to submit documentary and/or digital evidence in advance of a hearing, it is equally important to provide cogent oral testimony at the hearing. For example, sworn or affirmed testimony from witnesses often carries more weight than written statements – even affidavits – since oral testimony can be tested through cross-examination. When providing oral testimony, or preparing a witness/client for oral testimony, try to keep the following in mind:
- speak at a steady pace and stay on topic;
- always tell the truth and avoid exaggerating;
- listen carefully and take your time before answering questions;
- ask for clarification if you do not understand a question; and
- stay calm and always act professionally towards the arbitrator and opposing party, regardless of how they are acting towards you.
Credibility is the trustworthiness of a person, and by extension, their testimony. In a legal proceeding, a witness’s credibility can be damaged if they provide testimony that is exaggerated, or inconsistent with documentary evidence or their previous testimony. When opposing parties give conflicting evidence, and there is no other evidence to support one side or the other, the arbitrator must decide which party to believe based on credibility.
Each party should be given a chance to present evidence at a hearing. When it is your turn to speak to the arbitrator, here are some general suggestions to keep in mind:
- Always refer to your most important evidence, as some arbitrators will only consider evidence they were directed to during the hearing.
- Do not assume the arbitrator is an expert on everything; walk them through your evidence and explain how it supports the claims you are trying to prove.
- Refer to specific page numbers and paragraphs in your evidence package, pausing briefly if you sense the arbitrator needs time to find the correct spot.
- Speak at a pace that will allow the arbitrator to take notes and absorb what you are saying. If they are having trouble following along, be patient and willing to provide clarification.
- If the opposing party interrupts you while presenting evidence, do not engage with them; the arbitrator should handle the situation and allow you to finish speaking.
Questioning Witnesses / Clients
When questioning one of your witnesses/clients, try to frame your questions in a way that encourages detailed and meaningful responses. The goal is to ask open-ended questions that allow the witness/client to explain their side of the story in their own words. Here are some examples:
- What did you do after you found the bedbugs in your rental unit?
- Can you describe the conversation you had with your landlord about the broken sink?
- How did you feel when your landlord illegally entered your rental unit?
Remember to listen closely to the answers being provided. If one of your witnesses/clients leaves out important information, try to ask a follow-up question that will remind them to provide the missing testimony before moving on to the next question.
Exclusion of Witnesses
If a witness is attending a hearing with you from the same location, they should leave the room until the arbitrator is ready for them. Similarly, if a witness has agreed to participate by phone, the arbitrator will decide when to add them to the conference call. The reason witnesses are excluded from most of the proceedings is to ensure that they are not influenced by other testimony.
The arbitrator should give you an opportunity to question the other party’s evidence, including oral testimony. When conducting a cross-examination, avoid asking questions to which you do not know the answer, as well as questions that allow for open-ended responses. The goal is to ask leading questions that get the other party or one of their witnesses to endorse certain statements about the evidence. Here are some examples:
- After the tenancy ended, you re-rented the unit to someone else, correct?
- On May 14th, you received a letter from the tenant, right?
- You accepted rent after the effective date of the eviction notice, didn’t you?
There are two general objectives that you hope to achieve through cross-examination:
- Challenge evidence. Discredit the opposing party’s claims by identifying gaps, inconsistencies, errors, and exaggerations in their evidence.
- Challenge credibility. Discredit the opposing party’s claims by showing that they or their witnesses are being dishonest, have a lack of knowledge, or are clearly mistaken.
The closing argument is your chance to tie everything together and explain to the arbitrator how the facts, law and evidence support the claims you are trying to prove. Here are some general suggestions to keep in mind:
- At the start, briefly restate the claims you are trying to prove and any remedies you are seeking.
- Summarize the most important evidence that came out during the hearing, without repeating anything in too much detail.
- Identify any missing evidence from the opposing party’s case, especially if they have the onus of proof.
- Point out any contradictions exposed during cross-examination that might undermine the landlord’s evidence.
- Explain how the law applies to the facts that have been established through testimony and other evidence. If there is relevant case law that you have submitted, this is the time to explain how it supports your case.
- It is generally inappropriate to raise new issues or refer to facts that did not come out earlier in the hearing. If the arbitrator allows the opposing party to do this, ask for an opportunity to respond to their statements.
Going into your hearing, you should have a general idea of how you would like to summarize your case when providing a closing argument. But dispute resolution hearings can be unpredictable, so be prepared to adapt your closing argument based on the testimony that comes out during the hearing.
The Arbitrator’s Decision
The Residential Tenancy Act says that an arbitrator’s decision must:
- be in writing;
- be signed and dated;
- include the reasons for the decision; and
- be given within 30 days.
If you participate in a dispute resolution hearing related to an urgent matter, such as an eviction notice, you can generally expect to receive the decision well in advance of the 30-day deadline. However, arbitrators may sometimes take the full 30 days, or even longer, to produce a decision. If an arbitrator exceeds the 30-day deadline, their decision is still valid and must be obeyed.