Administrative law – Landlord and tenant – Residential tenancy agreements – Termination – Arbitration – Limitations – Extension of time – Judicial review – Natural justice – Procedural requirements and fairness
Sullivan v. Strata Plan BCS-251,  B.C.J. No. 1350, British Columbia Court of Appeal, June 17, 2005, Ryan, Mackenzie and Low JJ.A.
In the course of a dispute between Sullivan and the Strata Corporation, the Strata posted a notice to terminate tenancy on the door of Sullivan’s suite. Sullivan responded by applying for arbitration. She represented herself at the hearing. The arbitrator held that Sullivan failed to apply for arbitration within the requisite time limit and was therefore presumed to have accepted that her tenancy terminated on the effective date stated in the notice. The arbitrator’s reasons made no mention of Sullivan’s request for an extension of time. Sullivan applied for judicial review to the Supreme Court but this was dismissed.
The Court of Appeal reviewed the “approved form” provided by the Residential Tenancy Office to give notice to end a tenancy. This form was not designed specifically for use by a strata corporation and contained many provisions irrelevant to tenancies ended under the Strata Property Act, S.B.C. 2002, c. 78. Another “approved form” was used by Sullivan in her application for arbitration. The Court noted that these forms must be very confusing, both to strata corporations and to tenants. In reviewing the Application for Arbitration form, the Court found that the code used by Sullivan in requesting an arbitration was defined to include “an order setting aside a notice to end a tenancy given for cause, and/or in exceptional circumstances, extending the time in which the application for such an order may be made”. Sullivan argued that the arbitrator had dismissed her application without considering any request for an extension of time. The arbitrator’s reasons did not contain any reference to a request for an extension of time. The Court noted that Sullivan would not have been able to proceed to a hearing without an extension and that she had appeared at the hearing ready to argue her case. In the Court’s view, the question of an extension of time ought to have been canvassed with her at the hearing and it was unfair to the lay litigant for the arbitrator not to have done so. The Court concluded that Sullivan did not have a proper hearing and ordered that the matter be remitted back to arbitration for a hearing on the issues.
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