By Samrah Mian, CLAS Articling Student

Dispute resolution hearings at the Residential Tenancy Branch are notoriously quick and, oftentimes, very messy. Emotions run high, people talk over each other, and many feel unable to fairly present their case. Arbitrators at the Branch are tasked with presiding over multiple telephone hearings every day and may sift through hundreds of pages of submitted evidence for every case. Meanwhile, the stakes are high. These hearings determine matters as life changing as urgent evictions and awards for costs that number into tens of thousands of dollars.

CLAS urged the Branch to start recording hearings in 2013 in a report called On Shaky Ground, in our recommendations to the Rental Housing Task Force in 2018, and during countless meetings with Branch officials and Housing Ministers over the years. Other tenant organizations, landlords, advocates, organizations, and even cities have been demanding this change for more than a decade.

Back then, if parties wanted their hearings recorded, they would undertake the onerous process of hiring a court reporter in advance of the hearing and at a significant cost. Not only were hearings not recorded by the Branch, but people attending a hearing are forbidden from recording it themselves to this very day.

Last month, the Residential Tenancy Branch announced that their dispute resolution hearings will finally be recorded. But the devil is in the details, unfortunately. The move was initially celebrated by tenant advocates. Unfortunately, while the Branch did commit to recording hearings, they created barriers in accessing the recordings of hearing and have gone so far as to implement rules that could stop their own arbitrators from listening to them during review consideration; an internal appeal where a second arbitrator checks the initial decision to see if it contains any errors.

What is the significance of recorded hearings?

Fairness in legal processes is a fundamental principle of this country’s justice system. It contains rights such as the right to be heard, the right to a logical procedure, the right to know a case against you, and a well-reasoned decision at the end (see our blog post on this topic for more information).

The practice of recording hearings in some form or another facilitates procedural fairness and is so widespread that it’s an anomaly to find a legal decision maker who does not record their hearings. From the courts of British Columbia to specialized bodies such as the Human Rights Tribunal and the Mental Health Review Board, hearings are regularly recorded and are usually simple to access.

A party in a hearing would struggle to say their right to procedural fairness was violated if an audio recording is not available, especially in cases where they weren’t treated fairly by a decision maker. For instance, they’ll have trouble proving that a decision maker wouldn’t let them speak during the hearing if there is nothing to rely on except the written decision. A decision maker is unlikely to admit that they interrupted someone’s testimony or that they wouldn’t let them ask questions of a pivotal witness in their own decision.

When a decision is rendered by a decision maker and a person has exhausted all internal review procedures, they have the option to go to BC Supreme Court so a judge can review the decision to make sure it was fair. A decision must be patently unreasonable or procedurally unfair for a judge to mark it as invalid. Not only are judges burdened by the predicament about fairness, but deciding whether the decision was patently unreasonable can also be challenging without a recording of the hearing.  In cases where a judge must decide whether they should believe a decision maker or an aggrieved party, the odds are stacked against the party unless a recording is available. When a decision states that a party contradicted themselves or didn’t clarify the meaning of the reports they submitted, should this always be believed without any proof such as a recording or transcript of the hearing itself?

As previously mentioned, the Branch allowed people to hire a court reporter prior to the hearing, but the absurdity lies in how difficult it was to predict in advance that a person’s procedural fairness rights would be breached to such a degree that a recording would be required for a BC Supreme Court review.

The absence of recordings has plagued tenants and landlords for years. The Branch’s move was undeniably overdue.

What good is a recording if no one hears it?

If a person wants to contest a decision issued after a hearing, they may apply for review consideration; a process where the initial decision is reviewed and, if an error is found, a new decision is issued. The review consideration takes place by way of written submissions and only a new arbitrator can adjudicate the application. The review consideration process is currently restricted to changing the decision only for the following reasons: a party couldn’t attend the hearing due to circumstances beyond their control, a party has new evidence that wasn’t available at the time of the hearing, or if the decision was obtained by fraud (new reasons for review were introduced but have not yet become active as described below).

The current method for accessing recordings has created a roadblock for those pursuing review consideration. This is seen in rule 6.12 of the Branch’s Rules of Procedure:

Due to practical and operational limitations, unless there are extraordinary circumstances, a person may only request a recording 20 days after the arbitrator concludes the dispute resolution hearing. The fact that a party intends to apply for review consideration, clarification or correction is not considered an extraordinary circumstance.[1]

This timeframe for requesting the recording is arbitrary and unnecessarily long, and the Branch has not provided an explanation for the wait time.

The deadline for filing an application for review consideration can range from two to 15 days depending on the circumstances. If the wait takes 20 days and, applying for review consideration isn’t considered extraordinary enough to expedite the delivery, then the audio recorded by the Branch cannot be submitted as part of the evidence for review consideration  If a party applies for review consideration on the ground that the decision was obtained by fraud based on what a party said during the hearing, crucial evidence that could prove this allegation  may not be available.

Even if a party obtained the recording early and managed to send it in with their review consideration application, the Branch has taken the extra step to confirm that the new arbitrator should not listen to it:

Arbitrators will not listen to a recording when making a decision on an application for a

review consideration, clarification or correction, except where it would result in a breach

of the principles of natural justice not to listen to it. [2]

Arguably, declining to listen to a recording when one is available violates the principles of natural justice but, it is left to an arbitrator to decide whether they will listen to the recording or not. The Branch seemingly has gone to great lengths to prevent fairness at the review consideration level.

This refusal to listen is also contradictory with their new messaging and can undermine the Branch’s commitments to ensure fairness and accessibility that were made last year. In 2021, the government announced that people will be allowed to apply to the branch of review consideration for other reasons other than the three set out above. One of these reasons is “when it is clear an error has been made, rather than having to go to the courts.” This means that arbitrators should consider fairness issues more generally since there is already another process for simple errors that need fixing: review correction. However, this new ground for review consideration has limited use if the Branch has forbidden their own arbitrators from listening to the audio recording of the hearing which produced the decision they are supposed to be reviewing.

The motivation to fix own errors in-house is a good strategy because the alternative is for the decision to be reviewed by the courts who have the power to turn over decisions for a broader set of reasons. Many other tribunals also have their own “appeal” decision maker which gives them the ability to review the tribunal’s own decisions. This internal appeal process can save money and time all around, and saves people from resorting to lengthy and expensive cases in court. However, if the Branch prohibits an arbitrator from accessing a recording, the matter will likely be filed in court anyway – a place where recordings of RTB hearing are admissible.

Currently, anyone who wishes to contest their hearing decision (based on issues that the review arbitrator isn’t allowed to address) or contest the review consideration decision through a judicial review must go to court. Waiting 20 days to obtain the recording can become a serious hurdle. Many documents may be filed, served, and paid for before a recording is delivered, and a lawyer would be better positioned to give more fulsome or concrete advice on a party’s chances of success this critical piece of evidence was available.

Another benefit to having the recording available quickly is because evidence in a judicial review is provided through affidavits. Parties often have different accounts of what happened during the hearing in these affidavits, but judge has no real opportunity to test this evidence without parties making additional requests to the judge (e.g. making applications to cross-examine an affidavit). Parties could avoid unnecessary disagreement and these court applications if they had access to recorded hearings earlier in the judicial review process.

Several other processes and policies are also undermined by this omission. Most evictions ordered by the Branch give landlords the right to kick out their tenants in 48 hours. The recording could be a key part of evidence when someone applies for an emergency pause on their eviction at court. This delay can also result in unnecessary litigation filed by parties who strongly believed that they were treated unfairly, but who may change their mind after receiving a legal opinion from a lawyer who was able to listen to the recording and advise against it. Lastly, the Branch’s goals in restoring more confidence in the process and promoting good conduct are moot if arbitrators know that the recording may never see the light of day – or at least, that it won’t be released quickly enough to be adjudicated.

In their original announcement, the Branch said that they had previously “not recorded dispute-resolution hearings, which made it difficult for parties who felt they were not treated fairly to challenge a decision.” The 20-day waiting period will result in the same amount of fuss and complication which makes challenging decisions still difficult. The Branch has already taken the first step by recorded hearings, but could save a lot more time, money, and effort on the part of many people by pressing the send button and allowing them to hear it.

[1] Residential Tenancy Branch, Rules of Procedure (Rule 6.12 Use of Recordings).

[2] Residential Tenancy Branch, Rules of Procedure (Rule 6.12 Use of Recordings).