Atchison v. British Columbia (Residential Tenancy Act, Dispute Resolution Officers)

Atchison v. British Columbia (Residential Tenancy Act, Dispute Resolution Officers)

The court held that s.90(a) creates a rebuttable presumption of receipt and that Officer Senay acted patently unreasonably by applying the deeming provision as conclusive without considering uncontradicted evidence that the petitioners only opened an envelope addressed to 'Resident' on January 7, 2008; additionally...

Source-derived case information.

Citation
2008 BCSC 1015
Parties
Petitioner: Danica Atchison; Petitioner: Kevin Huchuk; Respondent Dispute Resolution Officer: P. Senay; Respondent Dispute Resolution Officer: J. Howell; Respondent Landlord: Alexsander Makarewicz
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
31 July 2008
Procedural Posture
Judicial Review / Reasons for Judgment (application for Judicial Review; Remittal)
Outcome
Orders of the Dispute Resolution Officers dated November 23, 2007 and January 23, 2008 set aside and matter remitted to the Director for a new hearing.
Legal Topics
Service of Documents, Deeming Provision, Natural Justice, Standard of Review, Privative Clause, Remittal
Source Language
english
Administrative Law Residential Tenancy Law Procedural Fairness Service of Documents Deeming Provision Natural Justice Standard of Review Privative Clause +1 more

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Parties

Danica Atchison

Petitioner

Kevin Huchuk

Petitioner

P. Senay

Respondent Dispute Resolution Officer

J. Howell

Respondent Dispute Resolution Officer

Alexsander Makarewicz

Respondent Landlord

Procedural Posture

Judicial Review / Reasons for Judgment (application for Judicial Review; Remittal)

Legal Issues

  1. 1 Whether the deeming provision in s.90(a) creates a conclusive or rebuttable presumption of receipt
  2. 2 Whether the Dispute Resolution Officer's application of s.90(a) was patently unreasonable
  3. 3 Whether service by mail complied with s.88 requirements (address including name)

Ratio Decidendi

The court held that s.90(a) creates a rebuttable presumption of receipt and that Officer Senay acted patently unreasonably by applying the deeming provision as conclusive without considering uncontradicted evidence that the petitioners only opened an envelope addressed to 'Resident' on January 7, 2008; additionally service did not comply with s.88 because the envelope lacked the recipients' names; accordingly the orders were set aside and the matter remitted for a new hearing.

Court Disposition

Orders of the Dispute Resolution Officers dated November 23, 2007 and January 23, 2008 set aside and matter remitted to the Director for a new hearing.

Orders

  • Set aside the orders of the Dispute Resolution Officers dated November 23, 2007 and January 23, 2008
  • Remit the matter to the Director of the Residential Tenancy Branch for a new hearing at which both the landlord and the petitioners may present their cases