B.C. landlords and tenants cheer move to record arbitration hearings

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Tenants and landlords have complained about arbitration hearings, which typically last one hour and are held by phone.DARRYL DYCK/THE CANADIAN PRESS

Tenants and landlords in B.C. who go through a dispute resolution hearing now have more recourse if they feel they have been treated unfairly.

Hearings are now being recorded, which means that there is an official record of what was said, and how people behaved during the process – including landlords, tenants and arbitrators. Housing advocates are celebrating the change, although they say work still needs to be done on fixing a process that has broken down in recent years.

Tenants and landlords have long complained about arbitration hearings, which typically last one hour and are held by phone. Until a few weeks ago, when the recordings went into effect, there was no record of the hearings – even though the decisions impact lives and livelihoods, whether it’s a tenant dealing with a nightmare landlord, or vice versa. Now, a copy of the recording can be requested from the Residential Tenancy Branch.

Dispute-resolution officers are not required to have a legal background, and parties only receive a written decision after the hearing. Recordings of the hearings had been previously prohibited and only allowed in special circumstances if advance permission had been given. If granted, the party requesting the recording had to hire a court report to attend the hearing, and then pay for transcripts for all parties.

“Tenants and landlords have been pushing for [recordings] for 20 years,” says Al Kemp, who has worked as a rental housing management consultant for 25 years. His clients include small landlords and large property managers, and he’s also executive director of the Manufactured Home Park Owners Alliance of BC.

The technology to record the thousands of hearings that are held each year was only developed in more recent years, he adds.

“But we kept pushing and technology did change … and so we’ve overcome that hurdle. Now, either party at a hearing can request a copy of the recording, and that’s what’s come into place, and so we all cheered.

“There are a few – and I want to stress, it’s a few – arbitrators who do not follow the proper process. They are supposed to listen to each party’s story in an informal environment and make a decision that’s legally binding.”

Tenants’ advocates and the Office of the Ombudsperson also supported the new move.

“It will help everybody concerned, the government, the courts, landlords, tenants, and people like myself, who serve and educate rental housing providers to know the facts,” Mr. Kemp said.

The recordings are one of 23 recommendations that came out of a 2018 provincial task force that was appointed by Premier John Horgan and chaired by MLA Spencer Chandra Herbert, whose West End constituents regularly complained about the dispute resolution process.

Renters make up half of Vancouver residents, and there are about 650,000 renters in the province. Unless someone wants to try to take their case to the Supreme Court, arbitration hearings are their only option when there is a dispute.

Mr. Chandra Herbert had heard the stories about tenants being treated rudely and spoken over by arbitrators, and decisions that seemed arbitrary, depending on the skill of the arbitrator.

“It’s an area of the Residential Tenancy Branch process I found incredibly frustrating because people can make mistakes, whether they be an arbitrator or someone who makes stuff up, whether it’s a landlord or a tenant.

“And without an ability to record what actually goes on, it can be incredibly unfair and justice cannot be served. There are a number of stories I have from constituents and people across the province that were treated unfairly. Maybe a key piece of evidence was rejected unfairly and yet they can’t prove it beyond hearsay.”

Mr. Chandra Herbert wants to see another recommendation from the task force become reality, and that’s elimination of a policy that allows age restrictions on rentals by strata corporations. Stratas provide a significant share of the secondary rental market in B.C.; however, they can also put restrictions on renting, including a no-kids ban.

“One thing that’s come to me recently and I’m trying to raise it up the pole, is a strata’s ability to ban families. Under our human rights rules and Residential Tenancy [Act] rules, you can’t discriminate based on age.

“I came across a young family looking to buy a condo, and they found condos that have rules that nobody under the age of 25 or 35 can live there. I understand it with seniors’ buildings. That seems reasonable. But if you are a young couple and you find out you are having a baby, you get evicted or you leave.

“That’s not the message we want to be sending.”

Quentin Wright is the executive director of non-profit Mole Hill Community Housing Society and he is grateful that hearings will be recorded, but he says there are other problems still to be addressed. A big problem in the past couple of years is the length it’s taking for serious cases to be heard. Mr. Wright had a problem tenant on his hands, a person who was harassing other tenants with abusive, racist language.

Because of its mandate, the society does its best to not evict its tenants. Doing drugs, for example, is not cause for eviction. But the problem tenant risked the well being of other tenants, so a line had been crossed.

“We have pretty strong policies about trying to retain tenancies, not evict people,” Mr. Wright says. “Every day we have people coming in here, suffering different forms of homelessness, super precarious housing situations.”

A growing backlog of cases at the Residential Tenancy Branch meant it took six months for his case to be heard, and to win the right to evict the tenant.

Mole Hill is a low-income housing project on city-owned land, a collection of 28 heritage houses that comprises 170 units of below-market housing for single people, families and seniors. The complex includes a daycare and a group home. They also lease out a couple of suites to people visiting from outside the city, undergoing heart surgery at St. Paul’s Hospital.

Mr. Wright attends about three or four hearings a year to settle disputes. He called the level of unpredictability “unbelievable.”

The new recordings should help maintain consistency of decisions and also help maintain standards. It’s been an unnecessarily stressful process for inexperienced tenants and small landlords who hadn’t prepared properly for a hearing.

Mr. Kemp said that the government should beef up funding for the RTB so that it can get through its bloated backlog. However, he’s not seeing enough action by government to fix the system, and amid a housing crisis.

“Prior to the pandemic, the branch had measures they had to meet, like if you applied for a hearing for unpaid rent, you were entitled to a hearing within four or six weeks. They were generally meeting those objectives. If it’s a monetary claim, it might be scheduled in three months, and that’s fine because there’s no time sensitivity.

“But what began to happen is hearings stretched out to three and four and five months. … Jump ahead from January, 2021 to today and the delay in getting hearings is as bad or worse than it’s ever been.

“There is a famous saying that ‘justice delayed is justice denied.’ That’s the major problem.”