Landlording Advice - Arbitration

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Landlording Problems - Arbitration

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Q: I am emailing because no one in government or the RTO office has been able to answer my questions of concerns.
I am a landlord who filed a monetary claim for damages, against a security deposit, after my x-tenants breached a fixed term lease Aug-05. On the morning of said tele-hearing, due to circumstances not of my making or control, I was unable to take the arbitrators call. Although I contacted the RTO (front desk reception in Burnaby) within 4-minutes of the arbitrators voice mail, I was not able to penetrate the hearing in progress. I made 3 consecutive attempts within the first 45 minutes. Following which, at the recommendation of an RTO information officer, I faxed an explanation to the arbitrator with a respectful request for adjournment - without reply.
The same day, I emailed several government officials about my inability to access my hearing and suggested improvements to tele-hearings, which include direct access numbers and lines for both landlords and tenants. The Registrar emailed back that government was working on improvements, and I could file for a review of the arbitrator?s decision if I was not satisfied with the outcome.
A copy of the arbitrator?s decision was sent to the x-tenants who attended the tele-hearing only. I learned of the arbitrator?s decision (to dismiss my claim with liberty to reapply) when my tenants filed against me for return of double the damage deposit.
I immediately emailed the Registrar asking why I was not sent a copy of the arbitrator?s decision by post, when I was the party who paid the filing fee. I also stated that I would be filing for a review of the arbitrators decision (based on the Registrars advice) and asked, if the arbitrator does not change the decision from dismissed to adjourned, will I be forced to pay back to my x-tenants twice the amount of the security deposit, as the new filing will be more than 15 days from the end of tenancy?
The Registrar replied that she did not know why I did not receive the decision, perhaps it was lost in the mail. Further, she recommended that I not file for a review, but instead file for a new hearing to be heard in conjunction with my x-tenants, newly scheduled hearing. She stated that the arbitrator had dismissed with liberty to reapply, and as a result, I was entitled to file for a new hearing, based on my original claim.
I immediately cancelled my now filed, review of the arbitrator?s decision, and instead filed for a new hearing, as the Registrar recommended.
Following said hearing, I received by post, the arbitrators decision, awarding the x-tenants return of twice the damage deposit.
I immediately contacted an RTO information officer who stated that although my original filing was within 15-days, my new filing, Nov-05, was deemed filed more than 15-days from the end of tenancy. The RTO officer further stated:
1) Arbitrators do not mail copies of decisions to parties who do not attend hearings, even if the missing party paid the filing fee.
2) Landlords and tenants, who miss hearings, must call RTO if they want a copy of the arbitrator?s decision mailed.
3) When a landlord makes a claim to retain the damage deposit, and misses the scheduled hearing for reasons not of their making or control, said landlord must immediately file for a review of the arbitrators decision - regardless of the decision, else be held liable to pay back to the x-tenants, twice the amount of the security deposit.
As a landlord of 10 years, who follows the Act, I was more than surprized. These statements were in clear contradiction to the statements and recommendations made by the Registrar. I immediately went on-line to the RTO website for further information. After spending an afternoon reading the Act, policies and guidelines, searching for any pertinent information, I was unable to find any rulings, notices or warnings, that confirmed said statements 1-3 above.
I again contacted an RTO information officer. I reiterated the previous RTO discussion, and my concerns that these rulings are not listed on-line, anywhere in the Act, policies, and guidelines or printed materials supplied by RTO. The information officer?s response was simply:
4) Landlords and Tenants are expected to just know these rules.
5) The Registrars recommendations to you were wrong and could have hurt you.
I immediately filed for a review of the arbitrator?s decision, stating that I had cancelled a review based on wrongful advice taken from the Registrar. The arbitrator?s decision remained unchanged.
I emailed my concerns to the Registrar in early March-06, but have as yet, received no response.
I understand an arbitrator?s decision is final. A review can be requested, but only a justice of the Supreme Court has the power to overturn an arbitrator?s decision. Therefore, my questions of concern are as follows:
6) If the above said rulings exist, 1-3 above, could you please identify for me, their location in the Act?
7) Or if, as I have found, these rulings do not exist in the Act, can you please explain how their implementation is fair and just to both landlords and tenants.
8) And lastly, how landlords and tenants can be expected to know, understand, follow and be held accountable to these rulings, 1-3 above, when even the Registrar of the RTO was unaware of their existence.
Very much appreciated.
frustrated landlord
A: The provincial government is currently seeking a new Registrar for the Residential Tenancy Branch. I'm not sure when the position closes but, like you, I don't intend to be one of the candidates - it's a no-win position as far as I can see. The Registrar appoints Arbitrators. Arbitrators are not bound by decisions made by other Arbitrators; they apply the Act as they interpret it, based on the evidence and argument presented. This is a key part of the Act, found in seciton 64(2) which reads "An arbitrator must make each decision or order on the merits of the case as disclosed by the evidence admitted and is not bound to follow other arbitration decisions under this Act." Naturally, the arbitration process and system frequently is under fire, and many times for good reason as your missive illustrates. I for one wonder at the wisdom of the legislators giving jurisdiction for an Arbitrator to sit in judgment of himself, which I believe happens in a review where the Arbitrator's decision is presented back to him for examination. Similarly, I am concerned that Arbitrators' decisions aren't published, which has led many members of the public to question the transparency of the process and to lose faith in its application. I believe that copies of the decisions made by Arbitrators should all be published, and immediately made available to immediately interested parties. I don't think anyone involved in an arbitration hearing, aside from witnesses, should have to phone the RTB and request that a copy of the decision be mailed out to them, but I do believe that those who fail to attend or participate in hearings should be put to the strict test of establishing they could not attend or participate due to circumstances that genuinely could not be anticipated or that were completely beyond their control. In this regard, I've seen too many reviews come forward where the party could easily have made the effort to attend but didn't because he thought he'd win hands down. Upon discovering that he lost, or the case didn't go his way, the person files for review on the flimsiest of excuses - not reasons - and sometimes wins a rehearing when I don't think the circumstances warrant one. But for the most part, I agree with you. It ain't fun; it ain't pretty, but that's the way the system is as the moment. Maybe a new Registrar will change things.


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