The application by a tenant (“Ganitano”) for judicial review of a decision and Order of a residential tenancy dispute resolution officer dismissing Ganitano’s application to dispute a 10-day notice and one-month notice to end tenancy was allowed where the Court found there were a number of procedurally significant problems in the Hearing which infringed Ganitano’s right to be heard on the application

Administrative law – Decisions of administrative tribunals – Residential Tenancy office – Adjudication – Landlord and tenant – Residential tenancy agreements – Termination – Hearings – Conduct of hearings – Failure to provide transcript of hearing – Judicial review – Procedural requirements and fairness – Limitations

Ganitano v. Metro Vancouver Housing Corp., [2009] B.C.J. No. 1186, British Columbia Supreme Court, June 15, 2009, A.W. MacKenzie J.

Following a Dispute Resolution Hearing, the dispute resolution officer made an Order which required Ganitano to vacate the apartment she had lived in for 25 years. The tenant had applied for dispute resolution to cancel a 10-day notice and one-month notice provided following a delay in paying rent due to financial difficulties. Ganitano was given a Hearing date and instructions as to how the Application would proceed by way of teleconference call. On the Hearing date, when Ganitano attempted to call in, she was not connected to the correct Hearing until approximately 11 minutes into the Hearing, which lasted a total of 20 minutes, due to a technical problem with the teleconference lines. The officer had waited approximately five minutes for Ganitano to join the Hearing and then began the Hearing without her. When Ganitano joined the Hearing, she was told by the officer, who did not identify herself, that as she had not disputed the 10-day notice or paid the rent on time, there was no reason not to grant the Order of possession requested by the Housing Corporation. The officer dismissed Ganitano’s Application to dispute the 10-day notice because it was out of time as it had been filed approximately one week after the deadline. The officer further concluded that the Application would not have been successful in any event because the tenant did not pay the balance of rent by the deadline. The officer then issued an Order of Possession requiring Ganitano to vacate the apartment. Ganitano sought judicial review of this decision, seeking to have her tenancy re-instated or, alternatively, to have her Application remitted for a Hearing before a new dispute resolution officer.

The Court allowed Ganitano’s Application and the matter was remitted for a Hearing, in person, before another dispute resolution officer. The Court held that the officer was required to observe a high degree of procedural fairness in adjudicating the application because the Hearing resembled the judicial process as it was an adjudicative setting, there was no internal appeal from the decision or Order and the decision and Order were very important to Ganitano. In this case, several procedurally significant problems, including technical problems with the teleconference line and the lack of a record of the Hearing, infringed Ganitano’s right to be heard on the Application. The Court held that it was unnecessary to decide whether the officer made a jurisdictional error as procedural unfairness arose from the technical telephone problems that resulted in Ganitano’s absence for approximately one-half of the Hearing. The Court found that the equities favoured granting Ganitano relief from forfeiture because of the violation of procedural fairness.

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