Review Considerations &
Judicial Reviews
and how we can help with them
What are Review Considerations and Judicial Reviews?
The Residential Tenancy Branch (RTB) conducts one-hour telephone hearings where landlords and tenants are expected to call-in remotely, present all of the evidence that they have uploaded prior to the hearing to an arbitrator (over the phone), argue why they should get the relief they are looking for, all within a 20-minute period. The RTB makes its decisions based on the parties' evidence uploaded before the hearing and any submissions made within that one-hour hearing.
Naturally, some decisions are going to contain mistakes, while the outcome in others may be unreasonable. In some cases, the RTB's decision may be so flawed that it warrants review by the courts. We can assist you with that process.
While the RTB offers an internal review process called "review consideration", this process is limited to challenging a RTB decision on only three grounds. These are:
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You were unable to attend the telephone hearing due to unexpected circumstances beyond your control;
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You have new and relevant evidence that was not available at the time of the original hearing; or,
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You have evidence that the original decision was obtained by fraud, i.e. information presented at the original hearing was false, and the person submitting the information knew that it was false, but that information was in any event used to get the desired outcome.
Unfortunately, very few decisions are successful at the review consideration stage the RTB, as the grounds are very, very limited. If a decision does not fit into one of these grounds, a party may consider judicially reviewing the RTB's decision to the Supreme Court of British Columbia.
It is important to recognize that a judicial review is not another chance to re-argue your case before a judge. Instead, it allows either a tenant or a landlord to point out any errors in law or procedure that an arbitrator may have made that renders the decision patently unreasonable.
As this process is more complicated than conducting an RTB hearing and also requires an understanding of the applicable case-law, we recommend that you seek legal advice at a minimum before proceeding with a judicial review, as Supreme Court proceedings are subject to court-ordered costs.
If you think you require assistance, you can get in touch with us here.
How we can help.
Judicial reviews are significantly more technical than RTB proceedings and there is a common misconception that a judicial review is a chance to re-argue your case before a judge. In reality, a judicial review is an opportunity for a party to request that a Supreme Court judge evaluate the RTB's decision and either confirm the RTB's decision or identify how an arbitrator acted outside of their jurisdiction, setting aside the decision. This all sounds very abstract, so let's give an example:
You and your landlord attend an RTB hearing because of a rent increase that you are disputing. The RTB allows your dispute AND orders your landlord not to increase the rent for the next five (5) years. While your landlord accepts that the immediate rent increase was denied, they believe that restricting rent increases for the next five (5) years is unreasonable and not something that the arbitrator could have reasonably ordered under the Residential Tenancy Act, so they file a judicial review.
In this example, a judge on judicial review would need to determine whether an arbitrator had the authority (under the Residential Tenancy Act) to make an order preventing your landlord from increasing the rent for five (5) years. To do that, the party seeking a judicial review can only rely on the documents and submissions that were made at the RTB's one-hour telephone hearing and will need to outline the legal basis setting out why they believe the RTB's decision to meet the legal threshold of patent unreasonableness.
If the judge finds that the arbitrator did have authority to make their order, the judge will dismiss the judicial review and the RTB's order against this hypothetical landlord would stand. If the judge finds that the arbitrator did not have authority to make such an order, they may send the dispute back to the RTB to be re-heard.
Advancing a judicial review is easier and more cost effective if you have submitted all of the evidence and provided written submissions that outline your position before RTB at the initial hearing with them. Since judicial reviews are more complex than RTB hearings, we recommend that you seek legal advice before filing a judicial review.
If you think you require assistance, you can get in touch with us here.
