While part one of my blog post discussed the British Columbia Residential Tenancy Branch’s (“RTB”) internal review process for its decisions, part two of this post will walk through the Judicial Review process that may be pursued if you are a landlord or tenant who has received an RTB decision that you feel made a significant error in law, fact, or hearing procedure.
What is a Judicial Review?
A Judicial Review is a Petition to the Supreme Court of British Columbia to review an RTB arbitrator’s decision and/or hearing procedures. A Judicial Review is not an appeal. It is not another chance for a second hearing. It is the narrow window, bestowed upon the Court by the legislature, in which the Court can supervise the RTB’s jurisdiction. A Petition to the Court is a document that summarizes the dispute that was before the RTB, the hearing that was held, the decision received, and the remedy being sought from the Court (e.g. typically to set aside the RTB arbitrator’s decision/order and schedule a new hearing). A Petition is accompanied by an Affidavit which is a sworn statement outlining the facts and documents relevant to the Judicial Review. Apart from any sworn statements you may want to make about hearing procedures, it is the RTB / Attorney General that will file an Affidavit containing the official “record” of the documentary materials that were before the arbitrator when they made their decision. As such, it is important that the RTB and the Attorney General be served with your Petition for Judicial Review.
A Judicial Review is not a process that should be pursued simply because you were unsuccessful. The threshold to disturb an RTB decision is exceptionally high and there are limited circumstances where a Judicial Review is appropriate. The Court can only set aside an RTB decision if it is found to be procedurally unfair, patently unreasonable, or blatantly incorrect. Disagreeing with a decision is not grounds for a Judicial Review.
Before deciding whether to pursue a Judicial Review, it would be prudent to review the audio recording of your hearing before the RTB. The purpose of making audio recordings available to parties and their authorized representatives is to help them better understand what transpired at the hearing, and make informed decisions if they are considering bringing a Judicial Review of an arbitrator’s decision or order. A party to a dispute resolution hearing may request a copy of the audio recording of their hearing by completing and submitting RTB Form 54 to RTB. Specific instructions with respect to how to complete and submit the form can be found on the form itself. Recordings are not released until 20 days after a final decision is made.
To be clear, the Court cannot change the arbitrator’s original decision. The Court can only review the process the arbitrator used to reach a decision and any mistakes they made in applying the law. The Court may confirm the arbitrator’s original decision or set it aside and order a new hearing. As such, even if you are successful in your Judicial Review Petition, it is not guaranteed that you will win a new hearing at the RTB (should a new hearing be ordered).
How Much is this Going to Cost Me?
The Supreme Court requires a $200.00 filing fee to apply for a Judicial Review.
The Clock is Running
There is a 60-day time limit to file a Petition for Judicial Review, although this time limit may be extended by the Court. When deciding whether to grant an extension, the Court will consider the amount of time that has gone by and the reason for missing the deadline.
Getting Your Day in Court
Once you have filed and served your documents, you need to obtain a date for your Petition to be heard by the Court. In order to do this, you will need to estimate how long you think it will take for the Court to listen to your case based on how complex your case is and how many respondents are involved. You should also consult with the other parties or their lawyer(s) to estimate the time required and to mutually agree on potential dates.
Given the complexity of a Judicial Review, it is advisable that you obtain legal advice before commencing such an application.
For further assistance with residential tenancy matters, please contact Andrea E. Fammartino or a member of our Residential Tenancy group.
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