FLOOD v BAKER, 2017 ABQB 757

Graesser J

1.2: Purpose and intention of these rules
3.15: Originating application for judicial review

Case Summary

The Defendants appealed a Decision of the Alberta Residential Tenancy Dispute Resolution Services (“RTDRS”). The Defendants owned an apartment which they had leased to the Plaintiff on a fixed term lease for a term expiring on May 31, 2017. The Plaintiff gave notice that she would be leaving a month early in mid-March of 2017. The Defendants denied her request to leave early, as they believed that they could hold the Plaintiff to the terms of the lease. The Plaintiff vacated the apartment on May 1, 2017 and, in response, the Defendants refused to return the Plaintiff’s security deposit.

The Plaintiff commenced proceedings for the return of the security deposit ($1,800.00). The Dispute Officer at the RTDRS Hearing found that the Defendants had failed to mitigate their damages and therefore awarded the Plaintiff her security deposit of $1,800.00 plus $75.00 in Costs. The Defendants attempted to Appeal the Decision of the RTDRS by providing new evidence as to when the Defendants had commenced efforts to mitigate.

Graesser J. found that, under the procedure for an Appeal under the Residential Tenancies Dispute Resolution Service Regulation, AR 98/2006 (“RTDRS Regulation”), the Alberta Court of Queen’s Bench (“ABQB”) is not entitled to review questions of mixed fact and law. Justice Graesser emphasized that questions of mixed fact and law cannot be heard on appeal unless the question contains an extricable legal question.

Graesser J. held that the ABQB did not have jurisdiction to hear the matter, and stated that the Appellants could have applied for Judicial Review of the RTDRS’ Decision by filing an Originating Application under Rule 3.15 of the Rules. Although the Appellants had failed to bring such an Application; His Lordship noted that the test in a Judicial Review would have been on the evidence heard by the Dispute Officer and whether or not the Dispute Officer’s Decision was within the range of justifiable possible outcomes. Justice Graesser observed that the Decision met the test. Justice Graesser concluded that, because the Court did not have the jurisdiction to hear the matter, the Appeal was dismissed.

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