BC – Arbitrator’s decision set aside for lack of procedural fairness – #575

In Cyrenne v YWCA Metro Vancouver, 2021 BCSC 2406, Justice Baird of the British Columbia Supreme Court set aside a statutory arbitrator’s decision to grant an Order of Possession in a residential tenancies dispute under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). He found that the hearing lacked procedural fairness because the arbitrator failed: (i) to judicially consider an adjournment request (dismissing it out of hand); and (ii) to give the tenant a reasonable opportunity to fully present her case (e.g. cutting her off in the middle of her submissions after a “time limit” had expired). Although the Arbitration Act, SBC 2020, c 2 does not apply to RTA disputes, it is illustrative of what procedural fairness dictates in relation to fair hearings.

This case concerns the tenancy of a single mother (the “Tenant”) on a disability pension living with her 13-year old autistic son in a building owned by YWCA Metro Vancouver (YWCA”). YWCA received repeated noise complaints from other tenants over the span of eight months and issued multiple detailed warning letters. The problems were allegedly attributed to the Tenant’s son, whom the Tenant admitted was prone to episodic meltdowns. However, the Tenant also claimed that her disgruntled neighbours were overly sensitive; the noise complained of arose from normal everyday living or emanated from sources outside of her dwelling unit. As the situation failed to improve, YWCA issued a notice to terminate tenancy, which the Tenant disputed.

The Tenant submitted the dispute to an arbitrator under the RTA, who granted YWCA an Order of Possession. The Tenant sought a judicial review of the arbitrator’s decision, alleging that the RTA hearing lacked procedural fairness. Justice Baird found that procedural fairness was denied in at least two ways.

First, Justice Baird noted that the Tenant was suffering from significant stressors that made her unable to serve YWCA with the documentary evidence she wanted to rely on within the required 14-day time period. She provided two batches of documents, but the second was late. YWCA objected to the admission of the second batch on the ground that there would be inadequate time to consider and respond in advance of the hearing. The Tenant asked the arbitrator for an adjournment of the hearing to cure this problem, advising him that her failure to comply with the timelines was due, in part, to the significant recent upheaval in her personal life caused by a family law case.

The arbitrator denied the adjournment for reasons not addressed in his written reasons. There is no record of proceedings, which took place over the telephone. Instead, Justice Baird found that the arbitrator summarily dismissed the adjournment request because it would result in a delay in the hearing. Justice Baird found that this failure to judicially consider the adjournment application resulted in procedural unfairness. The informality of the arbitrator’s reasons for dismissal showed that the arbitrator effectively ignored the substance of the Tenant’s request. Justice Baird noted that all adjournments result in delay; “the usual question is whether a delay is necessary to do justice in the case even though it may be inconvenient” (para. 11). The arbitrator’s failure to even try to balance justice against convenience made his decision “arbitrary and unsustainable”.

Second, Justice Baird found that the arbitrator failed in his duty of fairness by refusing to give the Tenant a reasonable opportunity to present her case. At the hearing, before the Tenant had the time to respond specifically to all of the individual complaints lodged to support the eviction, the arbitrator interrupted her to say that they had “run out of time for the hearing” and that she would have to stop her testimony. He also refused to allow the Tenant to cross-examine YWCA’s witnesses because “the hearing was over”. The Tenant deposed in support of the judicial review application that YWCA spent at least twice as much time presenting its case than she was allowed. The Tenant stated that she was not permitted the opportunity to respond to the complaints specifically, including reference to corroborating written evidence included in her second batch of documents. The arbitrator did not rule on the admissibility of these records, and it only became clear to the Tenant upon a review of the arbitrator’s decision, that they had been excluded—rendering the Tenant’s abbreviated presentation at the hearing on those records “more or less meaningless”.

In short, Justice Baird found that the Tenant’s case was “given short shrift”—with the proceedings arbitrarily stopped on the basis of a 90-minute time-limit unilaterally declared by the arbitrator. In the result, the arbitrator’s decision was made speedily without properly considering the Tenant’s side of the story or giving her an opportunity to answer the case against her or to present her own. Justice Baird noted that the arbitrator’s decision make only glancing reference to the Tenant’s evidence, finding that “[t]his lopsided treatment of the evidence reflects upon the faulty procedure adopted by the arbitrator by which, essentially, the respondent [YWCA] seems to have received a fuller and more attentive audience” (para 21). In total:

[22] The principle that individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard. A decision maker’s reasons, in turn, should demonstrate that they have actually listened to the parties … The arbitrator’s reasons in the present case comprise no such demonstration but stand as confirmation, instead, that to a significant extent the hearing was unbalanced and one-sided.

Ultimately, Justice Baird found that the flaws in the conduct of the hearing rendered it unfair such that the result could not stand, even if the outcome of a fair hearing would be the same. This is because justice must not only be done but seen to be done. As such, the Court set aside the arbitrator’s decision and remitted the matter for a new hearing before a different arbitrator.

Contributor’s note:

Although this case was a judicial review of a decision under the dispute resolution procedure under the RTA, and the Arbitration Act does not apply these disputes (see section 58(5) of the RTA), it is still illustrative of what procedural fairness demands: fair and balanced procedures that allow parties the opportunity to fully present and their case, as well as to respond to the case against them. Strict adherence to time limits can still lead to procedural unfairness, especially if the arbitrator fails to consider the balance of justice against inconvenience and delay. It is likely that if this case were subject to the Arbitration Act, a Court could (and would) set aside the decision pursuant to section 58(1)(h) of the Act. Similarly, if this case were being considered for enforcement under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, a Court could (and would) refuse enforcement under Article V.