BRADEN EQUITIES INC v MILLAR

The landlord applied to terminate a tenancy under the Residential Tenancies Act, SA 2004, c R-17.1 (the “RTA”). Although the RTA permits such an Application to be brought in the Court of King’s Bench, once the Applicant chose to proceed in that Court, they were required to comply with its Rules. The Court found that it did not do so, citing improper service, commencement in the wrong judicial centre, evidentiary deficiencies and improper claims for fees and costs.

The Applicant purported to serve the Application by posting it to the rental premises. This was insufficient under the Rules which require personal service unless there is a substitutional service order.

The Applicant also improperly filed the matter in Edmonton rather than Red Deer. The Court held that Red Deer was the proper judicial centre because the rental property was located there, the responding tenant lived there, and, under Rule 3.3(2), the Applicant’s relevant place of business was the one nearest to the events in issue. The Court emphasized the judicial centre rules ensure fairness, particularly in housing cases involving potentially vulnerable respondents.

Rule 3.8(2) confines affidavits to the affiant’s personal knowledge or to evidence they could give at trial. The Applicant relied on evidence from an administrator about the condition of the premises based on information and records created by the site manager. The Court found that evidence to be inadmissible hearsay. It rejected the submission that the evidence was admissible under the business records exception, since the records were created specifically for the eviction process and were not routine records carrying the necessary indicia of reliability.

The Applicant sought $850 in costs but did not provide a Bill of Costs or invoices. The Applicant relied on a lease clause requiring the tenant to indemnify the owner for legal costs incurred in enforcing payment or recovering possession after default. However, the Court held that the clause fell short of the clear language required to support solicitor-and-own-client costs.

Rule 10.33(1)(b) requires the Court to consider proportionality when awarding costs. Pursuant to Rule 10.42, if a matter could have been heard in the Court of Justice, costs are generally limited to 75% of Column 1 of Schedule C. Rules 10.33(2)(e) and (f) allow the Court to vary or deny costs due to irregularities or contraventions to the Rules. Considering the Applicant’s improper service, commencement in the wrong judicial centre, and reliance on inadmissible hearsay, the Court denied to award costs to the Applicant.

Under Rule 10.31(5), the Court may award costs to a self-represented litigant in appropriate circumstances. The Court ordered the Applicant to pay $250 in costs to the Respondent, to be offset against her August rent, for the inconvenience of requiring her to travel to the wrong jurisdiction in Edmonton instead of Red Deer on short notice with her young child.

The Court also rejected the Applicant’s proposed consent Order, as it would permit termination of the lease and eviction without notice or a further Court application. Instead, it ordered payment of the outstanding base rent for July and August, less the $250 costs offset, and granted the landlord leave to reapply in the event of future defaults.