Jan 24, 2013

An inadequate appeal process for tenants means a bumpy ride for everyone


(Co-authored by Kendra Milne and Jess Hadley, staff lawyers at the Community Legal Assistance Society)

Earlier this week, we read with interest Kathy Tomlinson’s January 21st CBC Go Public story, Landlords ‘powerless’ as tenants get free ride, which investigates one family of tenants who have apparently taken advantage of several successive landlords.  In her article, Ms. Tomlinson quotes Al Kemp (of Rental Owners & Managers Society of BC) as blaming an overly sympathetic appeal process in which, he says, the courts seem willing to let tenants stay regardless of their circumstances:  “They don’t have to provide any documentation. They just say my landlord wants me out and I want to stay.”

As staff at a non-profit law office, we assist hundreds of tenants a year, many of whom face imminent eviction and homelessness.  Our first response to Ms. Tomlinson’s story is to correct the impression that the tenants she writes about are anything close to the norm.   Just as there are a minority of abusive landlords out there who provide shoddy and unsafe accommodation, fail to do repairs, and issue eviction notices in bad faith, there are, undoubtedly, unscrupulous tenants.  But in our experience, most tenants are law-abiding, do their best to pay their rent, and try to get along.   There are hundreds of thousands of tenants in this province, and dozens of them face eviction every day for highly sympathetic reasons.   Their income is interrupted so they can’t pay rent; their housing subsidy is cut off; their landlord decides it needs them out in order to do renovations.  Tenants facing eviction should not all be tarred by Ms. Tomlinson’s brush.

We also want to challenge Ms. Tomlinson’s claim that the problems she describes are caused by an overly-lenient appeal process.   In fact, it’s quite the opposite.  We currently have a remarkably limited appeal process under the Residential Tenancy Act, and it is precisely this fact that necessitates the court’s involvement in evictions.  The legislation gives tenants only extremely narrow rights of review, meaning that there is absolutely no avenue of appeal where an arbitration hearing is unfair, or where the arbitrator gets the facts or law seriously wrong.  These problems can only be corrected by the court.  And this is true even for eviction orders, despite the fact that such orders routinely require tenants to leave their home in an incredibly short 48-hour time window.  Even worse, the Act provides absolutely no way for a tenant to get an extension on a 48-hour eviction order.

It’s in this context that tenants are forced to turn to the highly formalized and inaccessible processes of the BC Supreme Court to try and get more time to move, or to fix serious problems with an arbitrator’s decision.  (Our office has a plain language self-help guide explaining the process:  you can see for yourself how complex it is by clicking here.)  Because eviction orders are often effective on 48 hours’ notice, there is often no time for tenants to formally notify landlords they are starting a Supreme Court process.  All this puts a serious burden on the judges of the BC Supreme Court, who must decide hastily-assembled and often confusing or incomplete applications by tenants, often without hearing anything from the landlords – all the while knowing that their decision will determine whether or not someone becomes homeless.

We’re sure that many tenants putting their case before the Supreme Court have legitimate reasons to get a time extension or to have their eviction order set aside. We’re equally sure that some tenants make unmeritorious applications.  Given the severe challenges tenants face in preparing Supreme Court documentation, and the lack of legal aid for eviction cases, we suspect that in many cases it must be extremely difficult for the court to tell whether or not a tenant’s case has merit.  And while we don’t know exactly what happened in court in the case Ms. Tomlinson describes, it’s not surprising, in our view, that judges faced with this type of application may sometimes err on the side of giving the tenant more time. No judge wants to issue an order that causes someone to become homeless, particularly when the decision must be made hastily and without adequate information.  Clearly, such a process isn’t fair to anyone – landlords, tenants, or the courts.

In our view, the problems Ms. Tomlinson writes about can only be addressed by creating a meaningful and accessible appeal process under the Residential Tenancy Act, so that tenants are not faced with 48-hour eviction orders (or other high-impact orders) that cannot be challenged via any means other than an urgent application to BC Supreme Court. Weakening the already ineffective appeal processes in the Act will only make things worse.

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