Kikals v. British Columbia (Residential Tenancy Branch)

Kikals v. British Columbia (Residential Tenancy Branch)

DRO Howell's refusal to grant a review despite the applicant's unforeseeable inability to attend and DRO Wakefield's ex parte decision that ignored equitable set-off and fundamental fairness amounted to a patently unreasonable exercise of discretion and breach of procedural fairness; both decisions are quashed and the matter must be remitted for a full reconsideration taking account of set-off, equitable principles and the applicable statutory provisions.

Citation
2009 BCSC 1642
Parties
Petitioner: Tracey Kikals; Dispute Resolution Officer: J. Wakefield; Dispute Resolution Officer: J. Howell; Tenant: Carter Neil Balzer; Tenant: Heather Dorthey Lippert
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
27 November 2009
Procedural Posture
Judicial Review / Judgment on Judicial Review
Outcome
Decisions of Dispute Resolution Officers Wakefield and Howell quashed; matter remitted for rehearing
Legal Topics
Privative Clause, Standard of Review, Procedural Fairness, Security Deposit Penalty, Set Off, Remittal
Source Language
English
Administrative Law Residential Tenancy Law Civil Procedure Equity Privative Clause Standard of Review Procedural Fairness Security Deposit Penalty +2 more

Case Brief

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Parties

Tracey Kikals

Petitioner

J. Wakefield

Dispute Resolution Officer

J. Howell

Dispute Resolution Officer

Carter Neil Balzer

Tenant

Heather Dorthey Lippert

Tenant

Procedural Posture

Judicial Review / Judgment on Judicial Review

Legal Issues

  1. 1 Whether the Dispute Resolution Officers' decisions were patently unreasonable
  2. 2 Whether the landlord's failure to comply with s.38(1) extinguished right to claim and triggered double-deposit penalty under s.38(6)
  3. 3 Whether the landlord was entitled to set-off cleaning costs against the security deposit

Ratio Decidendi

DRO Howell's refusal to grant a review despite the applicant's unforeseeable inability to attend and DRO Wakefield's ex parte decision that ignored equitable set-off and fundamental fairness amounted to a patently unreasonable exercise of discretion and breach of procedural fairness; both decisions are quashed and the matter must be remitted for a full reconsideration taking account of set-off, equitable principles and the applicable statutory provisions.

Court Disposition

Decisions of Dispute Resolution Officers Wakefield and Howell quashed; matter remitted for rehearing

Orders

  • Order quashing the decision of Dispute Resolution Officer J. Wakefield dated April 22, 2009
  • Order quashing the decision of Dispute Resolution Officer J. Howell dated July 3, 2009