Landlord and Tenant – Residential Tenancy Act – Arbitrator's Jurisdiction
Emily Mak for Jennifer Adamson

This was a petition under the B.C. Judicial Review Procedure Act challenging a decision made by an arbitrator under the B.C. Residential Tenancy Act. The arbitrator had ordered that the landlord was entitled to enter and retake possession of the premises and that the tenant pay some $400 in utility charges. The petition alleged that the arbitrator did not have the jurisdiction to decide the dispute, that the arbitrator's actions in failing to adjourn the hearing to allow consideration of whether the tenant was entitled to deduct the cost of certain emergency repairs from the rent allegedly owing were patently unreasonable, that the arbitrator's order regarding unpaid utilities were beyond the scope of the proceedings, and that the petitioner had generally not received a fair hearing.

The court agreed that the arbitrator did not have jurisdiction to decide the matter. Subsection 55(2) of the Residential Tenancy Act sets out three preconditions before a landlord may request repossession of premises, including that the landlord has provided a notice to end the tenancy to the tenant. The arbitrator had specifically stated in her reasons that she could not determine whether such a notice had been delivered. Therefore, the court found that the preconditions under s. 55(2) had not been met and allowed the petition on that basis. However, the court went on to say that the failure to adjourn the hearing to address issues relating to deduction of emergency repair costs resulted in a denial to the tenant of a fair hearing, and that since unpaid utilities were not the subject of the landlord's notice to end the tenancy nor the application for dispute resolution, the arbitrator lacked jurisdiction on those further bases, as well.