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PROCEEDINGS - Mediation and arbitration

Monday, January 14, 2019 @ 10:35 AM  

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Application by the Chiodos, the petitioners, for judicial review of a decision of an arbitrator under a residential tenancy law enacted by the Westbank First Nation (WFN). This was the first judicial review brought in relation to WFN laws. The respondent Princess Enterprises (the landlord) was the owner and operator of a mobile home park located on WFN’s Tsinstikeptum Indian Reserve No 9. For the past 18 years, the petitioners had rented a pad at the mobile home park for their vacation home. On January 2, 2018, the landlord delivered to the petitioners a Notice to End a Residential Tenancy. The Notice anticipated that the petitioners’ tenancy would end on January 3, 2019. The petitioners submitted an application for arbitration. They subsequently submitted an amended application which was identical to the original application, save for a revised date and a completed “dispute address” box. The landlord raised a preliminary objection that the petitioners’ application for arbitration had not been submitted to the administrator within the 15-day time limit purportedly set by section 52.2(c) of the WFN Premises Law. The arbitrator found that the petitioners were out of time to challenge a notice to end a residential tenancy and therefore declined to address the petitioners’ challenge on its merits. The petitioners took the position that the arbitrator’s decision was substantially unreasonable. The landlord took the position that the petition should be dismissed on the ground that the petitioners unreasonably delayed in bringing it.

HELD: Application allowed. The petition was of obvious importance to the petitioners, who risked losing the vacation home they had had for over 18 years. It would have worked a significant unfairness to the petitioners to dismiss a meritorious application for judicial review on the basis of a delay that could not be characterized as inordinate. The arbitration decision contained no explanation of why the 15-day time limit in section 52.2(c) of the WFN Premises Law applied at all in this case. The Notice was not given pursuant to any of the provisions expressly captured by section 52.2(c). If the arbitrator considered that the 15-day time limit implicitly applied, she did not provide any analysis of how the WFN Premises Law might be interpreted to support such an outcome. Even assuming that a 15-day time limit applied to the petitioners’ application for arbitration, the arbitration decision was unreasonable in concluding that the petitioners’ application was filed out of time. The arbitrator started from the presumption that the revised application form submitted by the petitioners was a “second application” rather than an amendment of the original application. The arbitration decision contained no analysis to support such a characterization. The arbitration decision was unreasonable.

Chiodo v. Doe (c.o.b. Princess Enterprise), [2018] B.C.J. No. 3719, British Columbia Supreme Court, Horsman J., November 23, 2018. Digest No. TLD-January142019002