A party may raise a procedural fairness issue for the first time on judicial review where that party could not reasonably have identified and raised the issue before the original decision-maker

The uncontroverted evidence on judicial review demonstrated that the landlords had not been provided with a copy of particulars of the tenants’ claim for compensation prior to a hearing at the Residential Tenancy Branch. The tenants had provided written particulars to the adjudicator. The factual issues raised in the particulars went to the core of the tenants’ claim and the adjudicator’s subsequent decision. The landlords were entitled to raise procedural fairness on judicial review despite not raising the issue before the adjudicator because the landlords could not reasonably have identified at the hearing that they had not been provided with the particulars.

Administrative law – Decisions reviewed – Residential Tenancy office – Landlord and tenant – Residential tenancy agreements – Judicial review – Procedural requirements and fairness – Standard of review – Correctness

Althwal v. Johnson, [2023] B.C.J. No. 2367, 2023 BCCA 460, British Columbia Court of Appeal, December 8, 2023, M.E. Saunders, S. Stromberg-Stein and R.A. Skolrood JJ.A.

On judicial review, the landlords challenged the order of an adjudicator of the Residential Tenancy Branch. The adjudicator had granted the tenants a monetary award of $24,000 because the landlords had failed to occupy the rental unit within a reasonable amount of time after serving the tenants with a two-month notice to end tenancy. The adjudicator held that the landlords had failed to show extenuating circumstances to justify the delay. In their reasons, the adjudicator stated that neither party raised any concerns regarding the service of the application for dispute resolution or documentary evidence.

The landlords brought a petition for judicial review. The original petition did not raise procedural fairness. However, through the petition proceeding, the landlords discovered that the tenants had provided handwritten particulars to the adjudicator before the hearing, but had not provided the particulars to the landlords. The landlords amended their petition, and filed uncontroverted evidence establishing that they had not been provided with the particulars before the hearing.

The chambers judge dismissed the petition. On the procedural fairness question, the chambers judge held that it would have been plain to the landlords at the hearing that the hearing was about a compensation claim related to the landlords’ failure to occupy the rental unit within a reasonable period of time. Having failed to object before the adjudicator, the landlords could not now raise the issue on judicial review.

The landlords appealed on the question of procedural fairness. The Court of Appeal allowed the appeal and remitted the matter back to the Residential Tenancy Branch for a rehearing on the merits.

There is a well-established rule that issues of procedural fairness cannot be raised for the first time on judicial review if the party reasonably could have raised the issue or objected before the original decision-maker. The rationale for this rule is that a timely objection before the original decision-maker allows the decision-maker an opportunity to address the issue before any prejudice occurs. A party cannot strategically choose not to object and then wait to use the issue as a basis to challenge the decision if they are unhappy with the result.

However, the court has discretion to permit a party to raise a new issue on judicial review, including where a party was practically precluded from objecting to an issue below and where no prejudice accrues to the other party.

A party cannot be expected to raise an issue of procedural fairness until that party is aware of the relevant information, and until it is reasonable to expect the party to raise an objection. Determining whether it is reasonable to expect a party to raise an objection at the original hearing requires an assessment of the party’s circumstances, the hearing procedure, and the nature of the procedural fairness issue.

The Court of Appeal held that it would be unreasonable in this case to expect the landlords to have identified and raised the notice issue at the hearing before the adjudicator. The landlords were self-represented at the hearing, which took place by telephone. There is no evidence that the landlords were aware of the existence of the particulars until the particulars were produced during the judicial review proceeding.

With respect to the substantive procedural fairness issue, the Court of Appeal held that the landlords were entitled to full participatory rights, of which the right to notice is an inextricable part. There was “no question” that the landlords were entitled to know, before the hearing, the basis of the tenants’ claim and the remedies the tenants were seeking. The documents the tenants provided to the landlords were “manifestly insufficient” given the landlords’ right to know the case against them. Further, the lack of notice had an “unmistakable impact” on the fairness and outcome of the proceedings. The Landlords were not afforded the opportunity to provide evidence respecting why the landlords were not able to move into the rental unit in a timely manner, which was fundamental to the issues raised by the tenants in the particulars and, ultimately, to the adjudicator’s decision.

This case was digested by Emilie LeDuc, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Emilie LeDuc at eleduc@harpergrey.com.

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