On Shaky Ground: Fairness at the Residential Tenancy Branch

tags

Housing

Notes

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Authors’ Summary

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Introduction and Framework

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This report is an assessment of the current services provided by the Branch, with a specific focus on administrative fairness.

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The Branch is currently operated by the Ministry of Natural Gas Development. The Branch has been transferred across ministries five times in the past decade.

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the Branch’s total budget per adjudication is very small in relation to other comparable administrative decision-makers, despite the fact that the Branch has a broader mandate than the comparable tribunals. In short, the Branch must do more with significantly less money.

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“FOI request”), seeking documents relating to many aspects of the Branch’s operations. This request resulted in the pro- duction of just over 3,400 pages of material relating to topics such as the Branch’s policies and practices; its budget; complaints from the public; staff training; and a wide range of statistical data.

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Branch Function 1: PUBLIC EDUCATION

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experience using the Branch’s website commented that, due to the large volume of information on the website, and the text-dense nature of the site, the Branch’s online materials can be difficult to find.

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A huge amount of information is set out in the fact sheets and policy guidelines, and much of that information is very important to prepare for the dispute resolution process. The informa- tion is scattered throughout more than 80 documents that must essentially be searched by skimming the titles and descriptions.

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benefits of posting Branch decisions are not being realized be- cause of the limitations of the search interface.

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The Branch’s online/print material is inaccessible to those with language barriers, low literacy, limited computer skills, or lack of internet access

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Branch was reasonably responsive to input from community advocates about specific content problems that they have identified with its fact sheets and guidelines.

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Branch has also appeared reasonably willing to develop new guidelines and fact sheets to address inaccuracies or confusion, although the process for doing so has been very slow.

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Incomplete and inconsistent information from information officers

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Tenant stakeholders routinely field questions from callers who have already spoken to information officers, but who were not alerted to basic information that would have answered the callers’ questions. Information officers appear in such cases to have been referring callers to tenant stakeholder organizations rather than an- swering their questions directly.

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Inappropriate provision of legal advice by information officers

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Insufficient training and excessive workload for information officers

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period. There appears to be very little systematic training on the substance of the tenancy legislation. Instead, the training materials available have a distinctly administrative focus

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only a small number of information officers actually have a practice of intervening in a dispute at one party’s request by calling the other party to inform them about the law.

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PUBLIC EDUCATION CONCLUSION AND RECOMMENDATIONS

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Branch Function 2 ADJUDICATION

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dispute resolution by the Branch involves a conventional adversarial hearing process

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the Branch began implementing a system for tracking judicial review decisions in 2011 with continuing improvements into 2012.

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a 59% success rate on judicial re- views is high.

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sobering. In over 70% of the Branch decisions reviewed, the decision ex- hibited at least one objective problem with basic fairness. It is particularly concerning that nearly half of the Branch decisions we reviewed failed to contain a finding on each element of the legal test set out in the legislation,

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It does not make sense for both parties to be exchanging evidence on the same date, since a respondent’s evidence must respond to that of the applicant.

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RELIANCE ON TELECONFERENCE TECHNOLOGY

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Among the PRIVATE LANDLORD STAKEHOLDERS we spoke to, the ROMS BC took the view that the move toward teleconference hearings has been an entirely positive development.

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The NON-PROFIT HOUSING STAKEHOLDERS we spoke to were not convinced that in- person hearings are desirable in all cases.

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TENANT STAKEHOLDERS had primarily negative feedback about the move toward telephone hearings,

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Technical difficulties associated with phone hearings

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Negative impact on the quality of adjudication

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Problems with assessing evidence

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cases where the arbitrator is missing documents, or one of the parties is missing evidence submitted by the other side.

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on the phone, it is much more difficult (and sometimes impossible) to ensure that the parties and the arbitrator all have the same package of docu- mentary evidence

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not possible to present physical evidence (such as a damaged personal possession) at a phone hearing.

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Accessibility problems in telephone hearings

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ARBITRATORS’ APPROACH TO HEARINGS

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Arbitrator conduct and lack of accountability

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Nearly all of the tenant stakeholders we spoke to reported having experienced rudeness and a lack of courtesy from arbitrators.

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because teleconference hearings are not recorded, there is little ac- countability

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Landlord stakeholders were not entirely satisfied with arbitrators’ conduct of hearings, either.

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PUBLIC COMPLAINTS TO THE BRANCH MIRROR THE STAKEHOLDERS’ CONCERNS

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BRANCH WRITTEN DECISIONS

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primary concern about the Branch’s operations was inconsistency in the substance of arbitrators’ decision-making.

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Judicial perspective: Branch reasons found to be inadequate

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Judicial perspective: Arbitrators make serious errors in applying the legislation

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Review of Branch decisions revealed basic errors

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TRAINING FOR ARBITRATORS

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ARBITRATION CONCLUSION AND RECOMMENDATIONS

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Branch Function 3 ENFORCEMENT

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ENFORCEMENT POWERS OF THE BRANCH

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legislation empowers the Branch to conduct investigations for the purpose of ensur- ing compliance. The Branch’s investigative powers are broad; there is no statutory limitation on what the Branch can investigate, or how, provided that the purpose of the investigation is to ensure compliance with the legislation.

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The Branch may issue an administrative penalty against a party that has contravened the legislation or breached an order of the Branch. These penalties can be up to $5000 per day

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where certain legislative provisions are breached, these breaches can be prosecuted as offences.

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Staff would be hired to exercise the investigation powers in the legislation,

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BRANCH POLICIES ON ENFORCEMENT

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To date the Branch has not actually imple- mented any policies regarding offences and investigations.

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IN PRACTICE: USE OF BRANCH ENFORCEMENT POWERS

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To date, the Branch has never made use of the offence provisions of the Residential Tenancy Act and the Manufactured Home Park Tenancy Act. No one has ever been charged with an offence under either Act.

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the Branch has exercised its investigation and administrative penalty powers in only one case.

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Branch also specifically found that the landlord had acted deliberately in failing to abide by the Branch’s order.

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Branch reached a negotiated agreement with the landlord instead of enforcing the administrative penalty. This agreement says the Branch will waive the entire $115,000 administrative penalty

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ENFORCEMENT CONCLUSION AND RECOMMENDATIONS

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CONCLUSION

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Finally, the Branch needs increased financial resources to meaningfully improve its standards of administrative fairness. With a budget per adjudication of between 10% and 20% of comparable administrative decision-makers, the Branch is currently being asked to do the impossible, and it is no surprise that it is struggling to do so.

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Appendix 1: Acknowledgements

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Appendix 2 – Branch Decision Review Methodology

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