Mar 23, 2021

Summary of Olson v Hergott

Olson v Hergott, 2021 SKQB 11 (CanLII)
Landlord and Tenant - Residential Tenancies Act, 2006 - Appeal
The appellants appealed the decision of a hearing officer to grant a writ of possession to the respondents, the landlords, pursuant to s. 72(1) of The Residential Tenancies Act, 2006 (RTA) (see: 2020 SKORT 2414). The parties had entered into a written lease for a fixed term of six months. At the conclusion of the term, the respondents decided not to renew the lease but the tenants did not accept the decision and remained in occupation of the rental unit. They continued to tender their rent, which the respondents refused to accept. In his decision, the hearing officer found as a fact that the male respondent did not get along with the male appellant. He concluded that the lease was valid and found that the appellants had not complied with its terms and were overholding, and the respondents were entitled to possession of the rental unit. The officer directed a writ of possession issue in their favour. The issues on the appeal were: 1) the appropriate standard of review; and 2) whether the hearing officer’s reasons were sufficient.
HELD: The appeal was allowed and the writ of possession struck out. The matter was remitted to the Office of Residential Tenancies (ORT) and it was directed to hold a new hearing before a different hearing officer. The appellants were to continue to pay rent into court or to the ORT as long as they continued to occupy the premises and while the next hearing or any appeal taken from it remained outstanding. The court found with respect to each issue that: 1) an appeal under s. 72(1) of the RTA was subject to the appellate standard of review; and 2) the hearing officer had not provided sufficient reasons to explain how and why he reached the conclusion he did. The court applied the functional approach to assessing the sufficiency of the reasons set out in R v R.E.M., 2008 SCC 51. The officer gave only a brief recitation of facts but failed to define the issues and address what the evidence was or what he relied upon to reach his conclusion. The file forwarded from the ORT contained numerous documents, but none of them were marked as exhibits or explained what meaning they had had for the hearing officer. The court recommended that hearing officers’ decisions should review the evidence, address any evidentiary conflicts, mark document as exhibits relied upon and explain why they decide as they do.