1.1: What these rules do
1.2: Purpose and intention of these rules
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided

Case Summary

The tenant, Barlow, alleged that the Residential Tenancies Dispute Resolution Service (“RTDRS”) did not follow the rules of natural justice in determining a dispute with his landlord. While away from the rental premises for work, the tenant was substitutionally served an RTDRS Application filed by Mr. Hewitt. The tenant only received notice from a friend by telephone. The tenant called RTDRS and explained that he was away at work, and stated that Mr. Hewitt was not the landlord. The unsigned lease showed a Ms. Hewitt-Guimienny as the landlord and it was Ms. Hewitt-Guimienny who had been collecting rent. The clerk at RTDRS advised that no proof of ownership was needed by an Applicant, but further advised that the RTDRS hearing could be rescheduled if Barlow sent a letter explaining the issue. Barlow faxed a letter to the RTDRS and was later advised that a notice to reschedule would or should be mailed to him. A month later, he returned to the rental premises and found that the locks had been changed.

The tenant learned that the Hearing had proceeded in his absence and without notice, contrary to what was advised by the RTDRS clerk. He applied to the Court of Queen’s Bench for a stay of enforcement of the RTDRS Order. Master Robertson considered whether Rule 9.15 was available to set aside the Order, but held that, without legislative changes, the Rule is not available to a Master in Chambers to set aside a decision of the RTDRS. However, a re-hearing is possible when RTDRS has failed to follow the rules of natural justice. Under Rule 9.16, an Application to set aside under Rule 9.15 is to be brought before the Justice or Master who granted the original Order. Similarly, the Application to seek a re-hearing should be brought before the same Tenancy Dispute Officer. However, Master Robertson directed the matter back to the RTDRS and ordered that it be heard by someone different to avoid further complications. Master Robertson also ordered a Stay of Enforcement of the Order as the rules of natural justice had not been followed.

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