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Judge overturns eviction of disabled man and child, 6, on SAID

The hearing officer’s discretion is not simply that of a beleaguered bureaucrat, charged with making quick decisions, akin to a baseball umpire calling balls and strikes: Saskatoon judge
'The hearings were carried out as if they came before the hearing officer on an assembly line, with time limits for each hearing,' said Justice Elson, adding that the hearing officer had conducted 19 hearings that day.

SASKATOON – A Saskatoon Court of King’s Bench judge has overturned the eviction of a disabled man and his six-year-old grandson on social assistance.

The hearing officer didn’t listen to the tenant, hung up on the tenant, and took the viewpoint of the landlord, ruled Justice Richard Elson in Saskatoon Court of King’s Bench. Justice Elson also ordered a new hearing be held with a different hearing officer.

The hearing officer who ordered the eviction of Robert and his grandson conducted 19 hearings that day, court heard.

“The hearings were carried out as if they came before the hearing officer on an assembly line, with time limits for each hearing,” said Justice Elson.

The imposition of strict or semi-strict time limits – particularly in the face of serious and potentially momentous decision-making responsibility – was a denial of procedural fairness, said Justice Elson.

“Had the tenant been given the opportunity he deserved, he could have enlightened the hearing officer about the details in the evidence that would inform the justice and equity of the order he could make,” said Justice Elson in his April written decision. “Instead, the hearing abruptly ended. As mentioned under the previous heading, this action not only defied the principles of procedural fairness, it also betrayed the hearing officer’s disregard for his obligation to exercise the judicial discretion called for by s. 70(6).”

In addition, at the time of the hearing, there were no arrears in rent anymore, which had prompted the Saskatoon property management company to ask the Saskatchewan Office of Residential Tenancies (SKORT) for an eviction hearing against Robert.

Court heard that Robert fell two weeks behind on his rent and the property manager asked SKORT for an eviction hearing. By the time of the hearing, however, Robert had paid his rent in full and was no longer in arrears. The property manager told the court that they still wanted the eviction notice as a precaution.

“The tenant appeals the Decision on two grounds,” said Justice Elson. “First, he contends that the hearing officer – Randall King – denied him his right to procedural fairness by failing to provide him an adequate opportunity to present evidence related to his case. Secondly, and on a related ground, the tenant posits that the hearing officer failed to give fair and due regard for the ‘just and equitable’ consideration set out in s. 70(6) of the RTA.

“The Tenant was forthright in describing his difficulties paying the rent,” continued Justice Elson. “He advised he makes no excuses, but is struggling right now. He was apologetic to both the Landlord and me. He advises that he has serious health issues, and he also notes that he is caring for his young grandchild. He states that he has been informed by his worker that Social Services will make arrangements to pay the rent directly to the Landlord. He advises that he is only receiving $1,400.00 per month, which makes it hard to make ends meet.”

In his affidavit to the court, Robert said, “After I was reconnected, I was able to provide some evidence. I told the Hearing Officer that I live in the Rental Unit with my 6-year-old grandson, that I have disabilities that cause me difficulties in my day-to-day life, that I receive $1,470 from the SAID program and $520 from the Canada Child Benefit program each month, and that I want to keep paying rent and stay in the Rental Unit, and that if I am evicted, I don’t know where I could go with my grandson, and we would be homeless.

“I was not able to get into detail about my disabilities or my recent difficulties paying rent, because I kept getting interrupted by the Landlord’s agent and the Hearing Officer. I tried to tell the Hearing Officer that I had more to say, and that I wasn’t agreeable to the Landlord’s proposal, but the Hearing Officer hung up on me mid-sentence.”

After the hearing officer hung up on Robert, he emailed asking for a rehearing.

In his affidavit, Robert said he had an acquired brain injury from a 2010 pedestrian/vehicle collision as well as multiple hernias and stomach/digestive issues following complications from gall bladder surgery in 2016. This latter condition has resulted in further surgery, including hernia surgery in April 2023, which incapacitated him for a few months.

He also explained the circumstances that caused him to fall behind in his rent for a unit he has occupied since March 2020. After his 2023 surgery, he lived with his sister for a few months during his recovery. During this time, he understood that his roommate would pay the rent. When he returned to the apartment in June 2023, he discovered the roommate had failed to pay the rent for May. After that, Robert struggled to keep his rent current. He fell behind when his benefit payment schedule no longer matched the schedule for rent payments.

“The lessons hearing officers must draw from these authorities are clear,” said Justice Elson. “When making an order under s. 70(6), a hearing officer must exercise his or her discretion and, in doing so, must have regard to whether it is just and equitable to make the order.

“It must also be remembered that the hearing officer’s discretion is not simply that of a beleaguered bureaucrat, charged with making quick decisions, akin to a baseball umpire calling balls and strikes. Rather, it is a discretion that must be exercised judicially and in keeping with the rule of law.”