The Residential Tenancy Dispute Resolution Service (“RTDRS”) is a government agency in Alberta that provides a quick and cost-effective way to resolve disputes between landlords and tenants. The RTDRS can issue orders on various issues, including unpaid rent, damages, and eviction notices. While the vast majority of RTDRS orders are accepted by both parties, there are situations where one or both parties may disagree with the outcome and want to appeal the decision.
The appeal deadline for RTDRS orders is crucial for landlords and tenants. If a party misses the deadline to appeal, they may lose their right to challenge the RTDRS decision, which can have serious consequences. Therefore, it is essential for anyone considering an appeal to understand the appeal deadline and the process for filing an appeal. In a recent case, the Court of King’s Bench of Alberta denied an application for permission to extend an appeal deadline of an RTDRS decision, demonstrating that the Court will be firm in its application of the deadline.
Several pieces of legislation contain relevant provisions regarding appeal deadlines of RTDRS decisions. The Residential Tenancy Dispute Resolution Service Regulation includes the specific deadline and the filing requirements. Section 23(1) sets a 30-day deadline after an order is filed and section 28 specifies that if the deadline is missed, “the appeal shall be dismissed.” The Interpretation Act also includes the rules for calculating a deadline, informing the above. The relevant provisions include section 28(1), which provides for the definition of a holiday, and section 22(1) and 22(2), which specifies that if the deadline falls on a holiday or a day on which the court is not open during its regular hours of business, the appeal may be filed on the day next following on which the court is open for filing.
In other words, per the legislation, an appellant of an RTDRS order has 30 days to appeal, and this deadline does not include weekends or holidays. If a deadline lands on a weekend or holiday, the filing must be done on the following day which the court is open.
The calculation of the deadline was considered in the case of Afolabi v Wexcel Realty Management Ltd, where Honourable Justice M.A. Marion refused to permit an extension based on the interpretation of the above legislation.
The case involved Kehinde Olanipekun Afolabi and Olufunmilayo Mobolanle Afolabi, two tenants that had entered into a fixed term lease with Wexcel Realty Management Ltd. (“Wexcel”) with the term ending on April 30, 2022.
During the lease, Wexcel informed the tenants that the lease would not be extended as it intended to sell the property, and as a result, the tenants must vacate the premises when the lease expires. The tenants remained, so Wexcel began proceedings with the RTDRS regarding the failure to vacate. The tenants filed a cross-application for breaching the lease, in which they alleged that the landlord entered the premises and circulated photographs of the tenant’s child on the premises.
In May 2022, a tenancy dispute officer found that the tenants failed to vacate the premises and granted an “Unconditional Order” requiring their departure. In November 2022, a tenancy dispute officer dismissed the cross-application despite finding a breach of the lease (“November Order”). The officer “found that taking photographs of the minor was incidental to the Landlord’s legitimate purpose of hand-delivering a cheque to the Tenants and generating evidence of same.”
The November Order was filed in Court on November 25, 2022. The tenants sought to appeal this order on January 9, 2023, but they were told by the Clerk that the deadline had passed. The tenants then brought an application for permission to file a late Notice of Appeal.
Justice Marion dealt with two issues in his reasoning: (1) the start/end date of the deadline and (2) whether the tenants should be granted permission to file the Notice.
Justice Marion examined the requirements under section 23 of the Residential Tenancy Dispute Resolution Service Regulation regarding the first issue. He drew on the case of Scarlett v Wang to confirm that the filing of the November Order at the Court was the triggering event. As such, November 25, 2022, was the start date of the calculation.
He then applied section 22(7) of the Interpretation Act. Therefore, in his calculation, “the 30-day appeal window would have ended on December 25, 2022.” Lastly, he applied section 22(1) of the Interpretation Act, which allows a deadline to be extended to the next day if it lands on a holiday, which in this case was Christmas Day. As a result, by Justice Marion’s calculation, the official deadline was January 3, 2023, the next date when the court was open.
Since the tenants did not file by this deadline, Justice Marion found that “the Tenants have not complied with section 23(1)(a) of the Regulation.”
Turning to the second issue, Justice Marion examined the legislation and explored whether he had the discretion to permit the late filing of the Notice. He recognized that section 28 of the Residential Tenancy Dispute Resolution Service Regulation was worded so that “the appeal shall be dismissed” if the deadline is missed. The legislation does not permit discretion. He compared this wording to section 23(2), precisely drafted to provide the Court with discretion.
Justice Marion also noted that the Alberta Rules of Court gives the Court the general power to extend timelines. Still, considering the strict language of the Residential Tenancy Dispute Resolution Service Regulation, he concluded that he had “no authority under the Rules of Court to extend or vary the appeal period under section 23(1)(a) of the Regulation.”
Therefore, Justice Marion dismissed the application. This case informs tenants and landlords that a 30-day appeal deadline will be strictly applied.
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