Erickson et al v. Smith
- Citation
- 2007 BCSC 165
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 2 February 2007
- Posture
- Judicial Review of Decision Under the Residential Tenancy Act / Application Heard in Part and Adjourned for Want of Proper Service of Notice
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 2 February 2007
- Posture
- Judicial Review of Decision Under the Residential Tenancy Act / Application Heard in Part and Adjourned for Want of Proper Service of Notice
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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 PersonNoreen Smith
Respondent Counsel: No one AppearingAmounts and remedies
- Days to Set Down: 7
03
Procedural history
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
- 01
Whether the petitioners complied with mandatory service requirements under ss.15 and 16 of the Judicial Review Procedures Act
- 02
Whether the hearing could proceed on the merits despite failure to serve the Residential Tenancy Board and the Attorney General
- 03
Appropriate remedy for failure to effect required service
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
Legal principles
- 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.
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Supreme Court of British Columbia
Judgment· 2 February 2007
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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