Preparing for a Hearing

The Basics

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.

See section 6.6 of the RTB Rules of Procedure for more information.

Types of Evidence

Evidence is the collection of information and facts that is submitted in support of an application. You and your witnesses will have the chance to present oral evidence in the form of sworn or affirmed testimony during the hearing, but you should also submit relevant documentary and/or digital evidence in advance of the hearing. Here are some common examples of acceptable evidence:

• the tenancy agreement;
• condition inspection reports;
• other approved forms and notices;
• letters, emails, and text messages;
• receipts and estimates;
• sworn or unsworn written statements;
• photos, videos, and audio recordings; and
• internet research.

 

Digital Evidence

Parties can submit digital evidence using the following formats:

• USB Device / Memory Stick
• Compact Disk (CD)
• Digital Video Disk (DVD)

If you wish to rely on digital evidence at a hearing, you must confirm that the opposing party can access it. Once you have contacted the opposing party, they must reply with an answer as soon as possible.

When relying on digital evidence, you must also submit Residential Tenancy Branch (RTB) Form, Digital Evidence Details, which will ensure that you include the following required information:

• a description of the evidence;
• identification of photographs, such as a logical numbering system;
• a description of the contents of each digital file;
• a time code for the key point in each audio or video recording; and
• a statement as to the significance of each digital file.

See section 3.10 of the RTB Rules of Procedure for more information.

 

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Quality Evidence

When preparing for a dispute resolution hearing, your goal should be to gather and submit enough evidence to convince an arbitrator, on a balance of probabilities, to rule in your favour. The Residential Tenancy Branch considers quality evidence to be relevant, organized, clear, legible, authentic, and complete.

• Relevant. Submit enough evidence to prove your claims, without overwhelming the arbitrator with irrelevant or redundant details. Avoid submitting 12 photos when two will suffice.
• Organized. Evidence should be easily identifiable and searchable. Consider combining all your documentary evidence into a single PDF with numbered pages and an index. Your evidence should also be consistently labelled, such as “Bed bug photo 1” and “Bed bug photo 2”.
• Clear. There should be no debate about the evidence you submitted. The opposing party and RTB should receive identical copies of your evidence package.
• Legible. The arbitrator and opposing party should be able to easily decipher your evidence. Do not submit text documents that are unreadable, or photos that are blurry beyond recognition.
• Authentic. Be honest about the evidence you submit. Do not alter anything in an attempt to mislead the opposing party or arbitrator.
• Complete. Evidence must be a fair and accurate representation of the events depicted on it. An arbitrator may reject evidence if the video quality is poor, parts of an audio recording are missing, or the source is not credible.

See sections 3.6 and 3.7 of the RTB Rules of Procedure for more information.

 

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RESOURCE: Index of Evidence Template

An index can greatly improve an arbitrator’s ability to navigate your evidence. When preparing for a hearing, consider using this Index of Evidence Template to help you organize your evidence package.

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Role of the Advocate

Although designed for self-representation, the dispute resolution process can pose challenges for many tenants. For this reason, the Residential Tenancy Branch (RTB) allows “advocates” to provide assistance at hearings. For example, the Tenant Resource & Advisory Centre (TRAC) has a team of advocates who provide free legal representation to clients across BC.

According to Residential Tenancy Branch Policy Guideline 26, advocates can assist at dispute resolution in the following ways:

• by making legal arguments and submissions on behalf of a party;
• by presenting facts and evidence of the case and explaining how they relate to the law;
• by helping a party present their oral and documentary evidence;
• by asking questions to the party and their witnesses for the purpose of presenting evidence; and
• by cross-examining the other party and their witnesses with respect to their evidence.

 

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Witness / Client Preparation

When preparing for a hearing, try to come up with a set of questions for your witnesses/clients that will help establish the facts on which your case is built. You are not allowed to coach a witness/client by having them memorize a script, or by telling them what to say or not say, but you can help them communicate their side of the story in a clear and convincing manner.

Once you have a good starting list of questions, go over them with your witnesses/clients and make revisions from there. If at any point you receive an answer that you think could be detrimental to your case, you can change the wording of the question, or scrap it altogether. You may also want to prepare your witnesses/clients for some potential questions the opposing party may ask during cross-examination.

Once you have finalized your questions, try to go through them a few more times with your witnesses/clients. This can help reduce the chances of them freezing up or forgetting what they want to say on the day of the hearing.

 

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Written Statements / Affidavits

 

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Previous Legal Decisions

 

Previous Court Decisions

Section 91 of the Residential Tenancy Act says that, “Except as modified or varied under this Act, the common law respecting landlords and tenants applies in British Columbia.” This means that arbitrators are legally required to consider relevant decisions from the BC Supreme Court and BC Court of Appeal. If there are any common law decisions – also known as case law – that you wish to rely on, you can serve those as part of your evidence package, in accordance with the Rules of Procedure.

While there is an argument to be made that case law is not actually evidence, and therefore does not have to comply with the rules about the timing and service of evidence, it is safest to treat case law as evidence so that there are no misunderstandings with the arbitrator.

 

Previous Dispute Resolution Decisions

Arbitrators are not bound by any precedent set by previous dispute resolution decisions. This means that two arbitrators could be presented with two similar cases and reach two different conclusions based on their respective interpretations of the law and evidence.

While arbitrators are not required to follow previous dispute resolution decisions, it can still be a good idea to include relevant and favourable decisions as part of your evidence package. For some arbitrators, it can be persuasive to see how their peers ruled on similar matters. This notion that previous RTB decisions can be persuasive, even if they are not precedential, has been referenced in case law such as Atira Property Management v. Richardson:

“While [prior RTB] decisions are not precedential, and each arbitrator is free to decide on his or her own interpretation, consistency in the approach to a particular right or provision may be of assistance in determining the reasonableness of a given outcome.”

To search for previous dispute resolution decisions, see the RTB webpage, Lookup past decisions made by arbitrators.

 

CanLII

CanLII is an online resource that can help you find relevant case law. When viewing the Residential Tenancy Act (RTA) on the CanLII website, you will notice a square speech-bubble and number to the right of each section. By clicking that icon, and then “Citing documents”, you will gain access to a list of cases – mostly from the BC Supreme Court and BC Court of Appeal – that have referenced that section of the RTA. From there, you can filter your results by jurisdiction, court/tribunal, and date. If you register for an account with CanLII, you can also use their “Lexbox”, which offers additional features such as the ability to save cases and set alerts.

 

 

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Monetary Orders

The Residential Tenancy Act (RTA) sometimes lists a specific statutory remedy for non-compliance with the law, such as a landlord having to pay double the amount of a deposit when they fail to comply with the rules for returning that deposit. But for disputes where there is no statutory remedy, you will have to use your best judgement and apply for whatever amount you think you deserve.

According to Residential Tenancy Branch (RTB) Policy Guideline 16, “The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred.” In other words, when someone is applying for a monetary order, they should ask themselves, “what amount of compensation would make me whole again?”

Policy Guideline 16 also mentions a four-part test that arbitrators use when adjudicating monetary order applications. When preparing your case, try to ensure that you have evidence supporting each of the following points:

1. a party to the tenancy agreement has failed to comply with the [law] or tenancy agreement;
2. loss or damage has resulted from this non-compliance;
3. the party who suffered the damage or loss can prove the amount of or value of the damage or loss; and
4. the party who suffered the damage or loss has acted reasonably to minimize or mitigate that damage or loss.

See section 7 of the RTA and RTB Policy Guideline 5 for more information.

Key Resource: When applying for a monetary order, you must submit Residential Tenancy Branch Form, Monetary Order Worksheet. This form will help you list your evidence, such as receipts and estimates, in a clear and organized manner.

 

Aggravated Damages

Aggravated damages are a more complicated type of monetary compensation for intangible damage or loss. According to RTB Policy Guideline 16:

“Aggravated damages may be awarded in situations where the wronged party cannot be fully compensated by an award for damage or loss with respect to property, money or services. Aggravated damages may be awarded in situations where significant damage or loss has been caused either deliberately or through negligence. Aggravated damages are rarely awarded and must specifically be asked for in the application.”

 

Enforcing a Monetary Order

The Residential Tenancy Branch (RTB) has the power to issue monetary orders, but they cannot enforce these orders. If your landlord refuses to pay, you will have to go to Small Claims Court to claim your money.

See TRAC’s webpage, Enforcing a Monetary Order, for more information.

 

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Written Submission

You will have to weigh some pros and cons when deciding whether to include a written submission as part of your evidence package. While there is no requirement to provide one, doing so can provide context to your evidence and help an arbitrator become familiar with your case in advance of the hearing. While this can be a positive, the downside of submitting a written submission is that you will have to serve it to the opposing party by your evidence deadline, which could help them prepare a more informed response to your argument. In addition, when writing a submission, you may have to make certain assumptions about how the hearing will unfold. In cases where the arbitrator’s decision could turn mostly on facts that are established through testimony, your submission could be undermined by that testimony if it ends up contradicting what you have written. If you have spent a significant amount of time on your written submission, it could feel like a waste if the arbitrator establishes different facts than the ones you relied on.

 

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RESOURCE: Written Submission Template

You can use this Written Submission Template as a reference or starting point for your own submission, or a submission you are writing on behalf of a client. This template outlines a hypothetical dispute and should not be viewed as an example of a successful submission. The purpose of the template is to show you one possible way to structure a submission in a clear and organized manner.

 

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7 Day Orders of Possession

Residential Tenancy Branch Policy Guideline 54 says that the standard effective date for an Order of Possession is seven days. When disputing an eviction notice, it can be prudent to request adequate time to move – in the event that you lose the hearing. For example, you can explain to the arbitrator that you have children, pets, or a disability that will make it challenging to find new housing and move on short notice. Similarly, you can explain how a longer move-out deadline would not cause significant hardship to the landlord. For example, if it is already the middle of the month, you can argue that, realistically, your landlord will not be able to find new tenants before the start of the next month. Payment of rent can also be a key factor in an arbitrator’s decision to extend a move-out deadline. If you are all caught up on your rent payments, and can continue to pay rent going forward, try to use that as a justification for a more reasonable move-out deadline.

Exception: For an eviction notice for an expedited hearing under section 56 of the Residential Tenancy Act, the standard effective date for an Order of Possession is two days.

 

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RESOURCE: Request for Appropriate Time to Move Template

7 days the standard effective date for an Order of Possession. When disputing an eviction notice, consider using this Request for Appropriate Time to Move Template to remind the arbitrator that they have discretion to extend the deadline in cases where it makes sense for the tenant, and would not cause significant hardship to the landlord.

 

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Key Legal Principles

While dispute resolution is a less formal legal proceeding than court, arbitrators and judges still consider many of the same legal principles when making decisions. This section provides a brief overview of five principles that commonly show up in dispute resolution decisions. If you think that a legal principle applies to your situation, bring it to the attention of the arbitrator; do not assume that they will automatically consider it.

 

Res Judicata

The principle of “res judicata” prevents a party from pursuing a claim that has already been decided. For example, if an arbitrator rules that your dispute does not fall under the Residential Tenancy Act, you are not allowed to apply for a second hearing to re-argue your case. If you do, the new arbitrator will look at the previous arbitrator’s decision and dismiss your application because the issue of jurisdiction is res judicata.

 

Contra Proferentem

The principle of “contra proferentem” says that when a term in a contract is ambiguous, it should be interpreted against the interests of the party who drafted it. For example, if a tenancy agreement broadly states that “the tenant must pay for utilities”, the landlord may struggle to argue that the tenant owes money for any specific utility, such as heat or electricity, since the term is so ambiguous.

 

Waiver

The principle of “waiver” relates to the voluntary surrender of known contractual rights. According to RTB Policy Guideline 11, there are two types of waiver:

1. Express Waiver. The tenant and landlord clearly and unequivocally agree to waive a right. For example, they sign and date an agreement to cancel an eviction notice and reinstate the tenancy.
2. Implied Waiver. The tenant or landlord waives a right through their actions or behaviour. For example, if a landlord accepts rent for the period after the effective date of an eviction notice, they may have reinstated the tenancy and canceled the notice. (One exception to this rule is when a landlord accepts rent for “use and occupancy only”. In this scenario, the landlord has most likely protected themselves against reinstating the tenancy.)

 

Estoppel

The principle of “estoppel” prevents a party from arguing something or asserting a right that contradicts their previous behaviour. It is meant to prevent someone from being unjustly wronged by the inconsistencies of another person’s words or actions. For example, if a tenant regularly e-transfers rent a day or two late over an extended period, and the landlord never communicates any issues with this arrangement, then the landlord may not have grounds to suddenly evict the tenant for repeated late payment of rent. In other words, if there has been an established trend of the landlord acquiescing to late payments of rent, they may be estopped from issuing a One Month Notice for Cause for repeated late payment of rent.

 

Statutory Interpretation

The principle of “statutory interpretation” refers to how courts read, interpret, and apply legislation. More specifically, there is a “modern principle” of statutory interpretation that the Supreme Court of Canada, in Rizzo & Rizzo Shoes Ltd., identified as its preferred approach:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Furthermore, section 8 of the Interpretation Act says that:

“Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” 

In a residential tenancy law context, case law such as Berry and Kloet has established that the RTA was created to confer a benefit upon tenants that would not otherwise exist. This means that if you feel there is ambiguity in the language of the RTA, you can put forward a statutory interpretation argument that the arbitrator should interpret that ambiguity in favour of the tenant.