Civil Litigation
Landlord Arrested After Tenant is Deceptive About Service of Documents
July 30, 2024
When people find themselves involved in commercial or residential real estate litigation, they may be eager to move their position forward in order to have the court rule in their favour. However, this can often have the opposite effect. The courtroom is often seen as a bastion of truth, a place where facts reign supreme. Yet, the reality is far more complex. Lying under oath, or perjury, is a serious offense with severe legal consequences and even less obvious forms of deception, such as half-truths, omissions, and strategic misrepresentations can sway the outcome of a dispute.
In a recent decision from the Court of King’s Bench of Alberta, the Court was faced with a matter where one party failed to tell the truth in relation to serving important legal documents, resulting in serious consequences to the innocent party.
Property Owner Serves Eviction Notice on Tenant
In the case of Tieu v Layeghpour, the plaintiff, who owned a condominium (the “condo”), issued an eviction notice to the respondent who was renting the condo. This happened only a few weeks after the respondent moved in, however, the respondent moved out as directed on April 15, 2022. On April 12, 2022, the respondent filed a dispute with the Residential Tenancy Dispute Resolution Service (“RTDRS”), which was supposed to be followed by a telephone hearing on July 25, 2022.
The plaintiff said that she was serviced with a notice of the hearing on April 15, 2022 and has not seen the respondent since that date. However, the respondent claimed that he had served the plaintiff with additional court documents in both August and September 2022.
Plaintiff Ordered to Pay Respondent After Hearing
The initial hearing by the RTDRS resulted in a finding in favour of the respondent, as the plaintiff was ordered to pay him $1,550. The respondent then filed an Affidavit of Service on August 18, 2022, indicating that service of the decision was effected in person by himself on the plaintiff on August 2, 2022, at the condo address.
On August 30, 2022, the respondent filed an Application seeking financial disclosure from the plaintiff in order to enforce the judgement. This was followed by a second filing in September, where the respondent indicated that he had served the plaintiff with the Application.
Plaintiff Arrested After Failing to Appear at Court; Tells Court She Was Not Served With Previous Orders
After the respondent appeared in Court, he filed a third Affidavit of Service confirming he served the plaintiff with a copy of the Order requiring her to appear in Court. When the hearing occurred on September 29, 2022, the respondent asked the Court to find the plaintiff in contempt as she failed to appear.
The Court agreed that the plaintiff was in contempt and an officer from the Edmonton Police Service arrested the plaintiff on October 14, 2022. She was released three days later. It was at this time that the plaintiff told the Court she had not received any judgments or orders from the respondent. This led the plaintiff to file the most recent Application to be addressed, seeking to have the previous orders set aside.
Did the Respondent Actually Serve the Plaintiff?
The Court noted that, in order for contempt to be established, three elements must be established beyond a reasonable doubt. These elements were set out by the Supreme Court of Canada in 2015:
1. The Order must state clearly and unequivocally what should and should not be done;
2. The party alleged to have breached the order must have had actual knowledge of it; and
3. The party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.
The Court added that the Alberta Evidence Act states that, in order to introduce an electronic record as evidence, the burden of proving its authenticity belongs to the person introducing it. This relates to the evidence introduced by the respondent. In this case, the plaintiff said that she could not have received the judgments and orders in question because she does not actually live at the address the respondent said service was effected at. In fact, the person in the photo presented by the respondent to support the Affidavit of Service was actually someone who did payroll work for the plaintiff. The person also stated that the photo was taken weeks after the respondent indicated that it was taken.
The Court questioned why the respondent decided to attempt service on “seemingly random days” rather than doing so through registered mail or confirming via text messages. The Court also asked why the respondent did not text the plaintiff to see where she would be on the days service was alleged to have occurred.
Court Not Satisfied That Service Occurred; Respondent Ordered to Pay Damages
The Court concluded that the respondent failed to prove that services had been effected on any of the three days in question. Accordingly, the Court set aside the contempt order that had been issued against the plaintiff. The Court also acknowledged that the respondent came to the Court seeking “extraordinary relief” of having the plaintiff arrested along with $1,000 in costs, “knowing that he did not actually serve” the plaintiff.
The Court found that “certain misconduct during litigation that is reprehensible, scandalous, or outrageous warrant solicitor and client costs.” The Court pointed out that the plaintiff was held in jail for three days, which represented a “very serious attack on the integrity of our judicial system and on the dignity of” the plaintiff. Because of this, the Court ordered the respondent to pay $1,000 in damages as well as costs.
Let the Skilled Litigation Lawyers at DBB Law Represent You in Your Legal Dispute
The Calgary litigation lawyers at DBB Law combine decades of experience with professional service and strong client-lawyer relationships, providing our clients with legal advice and advocacy that they can trust. Whether you are dealing with landlord-tenant disputes, estate litigation, or employment law matters, our litigation lawyers will ensure that your interests are protected throughout courtroom proceedings. We will explain your options and guide you throughout the process until a resolution is reached. Contact us online or by phone at 403.252.9937 to speak with a member of our litigation team and learn how we can assist you.