Canada Judgment

Supreme Court of British Columbia

Erickson et al v. Smith

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Professional case brief

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Source document

01

Holding and result

Because the petitioners failed to serve the Residential Tenancy Board and the Attorney General as required by ss.15 and 16 of the Judicial Review Procedures Act, the application could not proceed on its merits and was adjourned to permit proper service, with liberty to set the matter down seven days after service.

Court disposition

Application adjourned for failure to serve required parties; liberty granted to set down after proper service; court remains seized.

Orders

  • Application adjourned to permit petitioners to serve the Residential Tenancy Board and the Attorney General pursuant to ss.15 and 16 of the Judicial Review Procedures Act.
  • Petitioners may set the matter down for hearing seven days from the date of service of the petition and notice of hearing on the Residential Tenancy Board and the Attorney General.
  • Because a re-hearing may be necessary, petitioners must also serve notice of the hearing on the respondent by registered mail.
  • The court remains seized of the matter.

02

Material facts

Parties

Mary Erickson & Glenn Turner

Petitioners Counsel: In Person

Noreen Smith

Respondent Counsel: No one Appearing

Amounts and remedies

  • Days to Set Down: 7

03

Procedural history

  1. Posture

    Judicial Review of Decision Under the Residential Tenancy Act / Application Heard in Part and Adjourned for Want of Proper Service of Notice

04

Questions and positions

Legal issues

Party arguments

Applicant
Petitioners sought judicial review of an arbitrator's decision under the Residential Tenancy Act and served the respondent by registered mail; they proceeded in person.
Respondent
Respondent filed an affidavit but did not appear at the hearing; no opposing oral argument was presented and no evidence was advanced that the statutory notice requirements to the Board or Attorney General had been met.

05

Court’s reasoning

  1. 01

    Judicial Review Procedures Act s.15(1)

    An application for judicial review in relation to the exercise of a statutory power requires service of notice and a copy of the petition on the person authorized to exercise the power.

  2. 02

    Judicial Review Procedures Act s.16(1)-(2)

    The Attorney General must be served with notice of an application for judicial review and is entitled to be heard in person or by counsel.

  3. 03

    Decision of the Court (2007 BCSC 165) applying ss.15 and 16 of the Judicial Review Procedures Act

    Failure to serve required parties is a jurisdictional prerequisite to a hearing on the merits and justifies adjournment to permit service.

06

Ratio, limits and disposition

Ratio decidendi

Because the petitioners failed to serve the Residential Tenancy Board and the Attorney General as required by ss.15 and 16 of the Judicial Review Procedures Act, the application could not proceed on its merits and was adjourned to permit proper service, with liberty to set the matter down seven days after service.

Court disposition

Application adjourned for failure to serve required parties; liberty granted to set down after proper service; court remains seized.

  • Application adjourned to permit petitioners to serve the Residential Tenancy Board and the Attorney General pursuant to ss.15 and 16 of the Judicial Review Procedures Act.
  • Petitioners may set the matter down for hearing seven days from the date of service of the petition and notice of hearing on the Residential Tenancy Board and the Attorney General.
  • Because a re-hearing may be necessary, petitioners must also serve notice of the hearing on the respondent by registered mail.
  • The court remains seized of the matter.

Source and reliance status

Supreme Court of British Columbia · 2 February 2007

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Judgment text

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Source document

Supreme Court of British Columbia

Judgment· 2 February 2007

2007 BCSC 165

2007 BCSC 165 Erickson et al v. Smith

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Erickson et al v. Smith, 2007 BCSC 165 Date: 20070202 Docket: S102450 Registry: New Westminster Between: MARY ERICKSON & GLENN TURNER Petitioners And

NOREEN SMITH Respondents Before: The Honourable Madam Justice C. J. Bruce Reasons for Judgment Counsel for Petitioners In Person Counsel for Respondents No one Appearing Date and Place of Trial/Hearing: January 30, 2007 New Westminster, B.C.

INTRODUCTION [1] This is an application by the Petitioners for judicial review of a decision of an arbitrator appointed pursuant to the Residential Tenancy Act S.B.C. 2002 c.

78. The Petitioners' application is pursuant to the Judicial Review Procedures Act R.S.B.C. c. 241. [2] The Petitioners properly served the Respondent with a copy of their petition and notice of the hearing of this matter by registered mail. [3] The matter came on for hearing before me on January 30, 2007. The Respondents failed to attend the hearing although they filed an affidavit in response to the petition. [4] Upon a review of the file, it has come to my attention that the Petitioners have failed to give notice of their application for judicial review to the Residential Tenancy Board and to the Attorney General. This prerequisite to a judicial review hearing is found in ss. 15 and 16 of the Judicial Review Procedures Act. These provisions provide as follows: s. 15(1) For an application for judicial review in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power: (a) must be served with notice of the application and a copy of the petition, and (b) may be a party to the application, at the person's option. s.16(1) The Attorney General must be served with notice of an application for judicial review and notice of an appeal from a decision of the court with respect to the application. (2) The Attorney General is entitled to be heard in person or by counsel at the hearing of the application or appeal.

DECISION [5] The Petitioners' failure to serve the proper parties to their application for judicial review is a prerequisite to a hearing of the application on its merits. Accordingly, I am adjourning the Petitioners' application for judicial review to allow them time to properly serve the Residential Tenancy Board and the Attorney General pursuant to ss. 15 and 16 of the Judicial Review Procedures Act. [6] The Petitioners shall be at liberty to set this matter down for hearing seven (7) days from the date of service of the petition and notice of hearing on the Residential Tenancy Board and the Attorney General. Because a re-hearing of this matter may be necessary, the Petitioners must also serve notice of the hearing on the Respondent by registered mail. [7] I remain seized of this matter. "C.J. Bruce, J." The Honourable Madam Justice C.J. Bruce

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Judicial Review Procedures Act, R.S.B.C. c.241, ss.15,16

Legislation

Legislation referenced in the available case record.

Residential Tenancy Act, S.B.C. 2002, c.78

Legislation

Legislation referenced in the available case record.

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