Navigating the RTDRS: What lawyers and advocates should know

The Residential Tenancy Dispute Resolution Service (RTDRS) is a tribunal designed to provide a specialized, informal, and quick resolution process for residential tenancies disputes.  As many lawyers do not regularly practice in the area of residential tenancies law, the RTDRS may be an unfamiliar process to navigate. This article will provide an overview of the RTDRS process and highlight some important issues of which lawyers and other advocates should be aware.

Scope of the RTDRS

The RTDRS hears applications for claims under the Residential Tenancies Act. There are a number of remedies available at the RTDRS. Some of the most common remedies that we see at the Edmonton Community Legal Centre include: termination of the tenancy, rent abatement, damages for breach of the residential tenancy agreement and/or the Residential Tenancies Act (either by landlord or tenant), recovery of possession of the premises, recovery of rental arrears, recovery of damage deposit, and compensation for the costs of performing the landlord’s obligations. The RTDRS can make awards up to $25,000.00.

The RTDRS cannot hear matters not within the scope of the Residential Tenancies Act, which includes contract interpretation (other than interpreting residential tenancy agreements), arguments requiring interpretation of legislation other than the Residential Tenancies Act, and arguments involving constitutional or human rights issues (for more information on residential tenancies and human rights, see Sarah Eadie’s recent Access Review post).

The RTDRS also cannot hear claims brought by applicants who are not defined as landlords or tenants under the Residential Tenancies Act (such as tenants who live in the same premises as, and share living space with, their landlords; see s. 1 of the legislation).

Applications are heard by Tenancy Dispute Officers (TDOs). In our experience, TDOs have backgrounds as lawyers, retired judges, or professionals with significant experience in residential tenancies matters, but do not necessarily have law degrees.

Transfers

If a TDO determines that a matter scheduled to be heard is overly complex, involves a determination of issues of constitutionality or human rights, or cannot be heard in a timely manner, the application must be transferred to the courts (Residential Tenancies Dispute Resolution Service Regulation, Alta. Reg. 98/2006, s. 17). The applicant chooses to which court they would prefer the matter be transferred.

Appeals

Orders granted by TDOs are binding and enforceable. After a hearing has concluded, the RTDRS clerks will prepare any resulting order and provide a copy to each party. The order is not enforceable until the successful party physically takes it to the Court of Queen’s Bench, files it, and serves a filed copy on the other party. Once served, the order remains in force until it is set aside, a stay is granted, or until the conclusion of an appeal.

A decision by a TDO can only be appealed on errors of law or jurisdiction.  A decision cannot be appealed on fact unless the TDO made a finding of fact so egregious it amounts to an error of law. An appellant has only 30 days from the time the RTDRS order is “given” to appeal. To appeal an RTDRS order, an appellant must file a Notice of Appeal at the Court of Queen’s Bench, order and pay for a transcript of the RTDRS hearing (proof that it has been ordered must be filed at the Court of Queen’s Bench within 37 days of the original order), and file Affidavits of Service (both the respondent and the RTDRS must be served; this must also be done within 37 days of the original order, see Residential Tenancies Dispute Resolution Service Regulation, Alta. Reg. 98/2006, s. 23). As mentioned above, filing an appeal of the RTDRS decision does not stop the order from taking effect. To stay the order while an appeal is underway, an appellant must make a separate stay application at the Court of Queen’s Bench.

It costs $200.00 to file a Notice to Appeal. The Edmonton Community Legal Centre operates a fee waiver program if the applicant meets the program guidelines.

Procedure

The RTDRS in Edmonton is located at Unit 112, 10025 – 102A Avenue (just outside City Centre Mall near Churchill Square). Application packets are found online, and must be filed at the RTDRS. Instructions on the application package should be followed closely; no Affidavits are required, but the applicant should include their evidence in the application. In addition to the original, 3 copies of evidence are required when filing if there is one landlord (more if there are additional landlords). Once filed, the clerk at the RTDRS will give the applicant a hearing date. The filed application must be served on the respondent 3 clear days before the hearing. Tenants must serve their landlords either personally or by registered mail (unless they obtain an order for substitutional service from the RTDRS). Landlords may serve personally, by registered mail, or may post the application package to the door if the tenant is absent from the premises or is evading service (see section 57 of the Residential Tenancies Act).

Any evidence that is acquired after filing of the application can be sent to the RTDRS and the respondent before the hearing. Generally, evidence should be provided at least 24 hours in advance of the hearing. If a respondent would like to submit any evidence to the RTDRS, they must do so 24 hours in advance, and provide copies to the applicant. The TDO may allow evidence not submitted prior to be submitted during the hearing, but this is not guaranteed and is sometimes refused.

It is important to note that the RTDRS is not bound by the rules of evidence. Letters could be accepted for the truth of their content without oral evidence from their authors, witnesses may give testimony via telephone, and parties may be allowed to alter their evidence during the hearing (such as a landlord correcting a rental ledger).

A respondent may file a counter-application against the applicant. Given the short timelines for service, the clerk will likely give the respondent/counter-applicant a different hearing date. It is within the TDO’s discretion to adjourn the applicant’s hearing so that both applications can be heard at the same time, or to hear both applications separately at their scheduled times. It is common practice at the RTDRS for some aspects of a tenancy to be heard and adjudicated on separately from other aspects of the same tenancy.

Hearings occur at the RTDRS location. On the day of the hearing, the parties should check in with the clerk at the front desk and then wait in the waiting area. There are small offices available in the waiting area should the parties wish to negotiate prior to the hearing. The clerk or TDO will call the parties into a hearing room. In the hearing room, the TDO will sit at the main desk, and the parties will sit around a conference table. Hearings are recorded. On occasion, the TDO may not be physically present in the hearing room and may preside by telephone or video conference. Witnesses are sworn in, and are generally excluded from the hearing until it is time for their testimony.

The conduct of the hearing is informal. In our experience, the TDOs will usually ask the parties if they have had an opportunity to negotiate, and will, usually, willingly give the parties an opportunity to negotiate prior to the commencement of the hearing. If the parties are not willing to or cannot settle their matter, then the hearing will commence. Some TDOs follow closely the traditional court process, including examination-in-chief, cross-examination, submissions, etc. Other TDOs prefer a more organic process, identifying and targeting issues without strict procedure as to witness testimony or evidence. After all submissions, the TDO will render a decision and provide a written order to the parties. Hearings are normally scheduled for 30 minutes unless additional time is sought by the applicant (generally no more than one half day).

Representation

Lawyers and advocates should be prepared for both an informal and a more structured process, as the conduct of the hearing is within the discretion of the TDO. The RTDRS is rarely like the traditional court process; however, lawyers should be careful not to misread the process and miss an opportunity to make submissions or call additional evidence. Even though the RTDRS is designed to be easily navigated by a self-represented litigant, there are opportunities to make legal arguments and refer to case law.

Lawyers, articling students, law students, and agents can represent parties at the RTDRS.

Costs

It costs $75.00 to file an application at the RTDRS. The Edmonton Community Legal Centre operates a fee waiver program if the applicant meets the program guidelines.

If an applicant is successful, the TDO may order that the respondent pay their filing fee, photocopying, service fees, travel, etc. Costs awarded where an agent attends on the applicant’s behalf are $75.00 (if the agent does not work for the party), and $100.00 if the successful applicant was represented by counsel (these costs are outlined in Rule 19.3 of the RTDRS Rules of Practice and Procedure).

Conclusion

Although the RTDRS is a quick and easy process designed for self-represented litigants, the issues can actually be more complex than they originally appear. In addition, decisions made by TDOs can have a significant impact on clients—decisions can include orders to pay up to $25,000, for example, or can be for immediate eviction. Lawyers and advocates are encouraged to take on cases that appear before the RTDRS. It is an interesting and dynamic place to represent clients and can help lawyers and advocates develop oral advocacy skills. It is also an excellent way to provide pro bono services to clients, as it usually requires less preparation and time commitment than a court trial and can make a huge difference in our clients’ lives.

For more information on the RTDRS’s Rules of Practice and Procedure, visit here.