A Tribunal That Lost the Trust of the Population it Serves

Disputes between landlords and residential tenants in British Columbia Canada are heard and resolved by the Residential Tenancy Board (RTB). The RTB is mandated by a piece of legislation called the Residential Tenancy Act, as well as some other legislative acts that place the tribunal within the Provincial judicial system.

Trust within any judicial system varies with experience. However, the RTB suffers from very low trust from both types of users: tenants and landlords. The lack of trust arises from a variety of factors that have one common theme: a lack of accountability.

Context

A quick look at the home page of the RTB provides no reference to a governing Ministry. Such a link is essential because not everyone citizen will realize that the BC government directory lists Ministries, Departments, Branches, etc. The online government directory indicates that the RTB is within the Ministry of the Attorney General.

The lack of a bottom-up link to the governing Ministry is a minor annoyance for those familiar with the BC Directory. However, looking at two other Ministry examples (Ministry of Children and Family Development or the Ministry of Climate and Climate Change Strategy) shows a chronic lack of accountability within the RTB. Each are fully represented within the Directory: name, positions, phone numbers and emails.

Even the David Eby, the Attorney General of BC is listed. Sure, I blocked out their family names and phone numbers in the screen shot. I don’t really know why I did that. You could follow the link and find any of those details.

But information regarding any employee of the RTB is conspicuously absent. It should be noted that not only is the rank-n-file (Arbitrators, Adjucators, Information Officers, etc) absent, but also absent is the management to whom the rank-n-file answers. This absence of who is actually responsible for running the Tribunal detracts from trust by the public.

Information Leaks

Tyee: 2011

With scarcity of information on the RTB from the Province, we need to look elsewhere to discover how this Tribunal operates. Ten years ago a former Dispute Resolution Officer (DRO) agreed to speak with a reporter for the Tyee, but only anonymously.

The former DRO spoke of the isolation within which the arbitrators worked, and the hurried expectation imposed on them by the management. The DROs are discouraged from interacting with each other or contacting the participants in the dispute resolution process. They’re required to complete a dispute hearing in an hour regardless if the participants had a chance to adequately present their case.

They reported that knowledge of the law was not a requirement for acquiring the job position. The DROs had no choice over the cases assigned to them. Hence there was no opportunity to develop an expertise is any particular type of landlord-tenant dispute, or to provide a consistent application of the Residential Tenancy Act (RTA) from one case to the next.

In fact, the DROs are discouraged from spending valuable time researching Judicial Reviews or even looking into the relevant piece of legislation: the RTA. They’re also discouraged from spending extra time understanding details in nuanced cases like many landlord-tenant disputes can develop into.

When an insider’s story shows the RTB prioritizing quantity over quality, it is no surprise that the public has lost trust.

indeed.com Employee Reviews: 2012

The list of reviews by former employees was less informative than the entry from the investigative journalist. Nevertheless, independence of the DROs (from each other and from management) was confirmed, as was the workload: 3 hearing per day.

Law Student Job Application Forum: 2015

Canadian law students discuss applying for three open positions as arbitrators in the RTB. They confirm that instead of the job postings requiring a legal background, the RTB will consider “some formal post-secondary level course work.” yet, the salary maxes out at $79k / year (2015) which is less than what a lawyer in the second year of their career makes.

Another contributor to this forum notes that the position is “exempt” which means that it’s a non-union position and not subject to cost of living raises or overtime, but strictly salary.

The people making decisions that critically affect the lives of landlords and tenants are encouraged to prioritize quantity over quality, discouraged from spending the time to understand nuanced cases, and are underpaid without COLA relative to similar professionals handling comparably serious matters. The workers at the front lines have not been given the resources to earn the trust of the public. A motivation for the secrecy in the BC Personnel Directory is not surprising.

Provincial Rental Housing Task Force: 2018

The early Task Force recommendation was to replace a previously allowable 2% above inflation rent increase, with an unspecified increase based on an RTB application following completed maintenance.

In December 2018, the Rental Housing Task Force presented it’s final report detailing 23 recommendations. Of the 23 recommendations, 14 were concrete and measurable, and nine were not. Of the nine that were not measurable:

• 3 were “work with” some group
• 3 were “investigate” or “review” a topic
• 3 were to make something “more clear”

Five of the recommendations are equally beneficial to both landlords and tenants, Another five are beneficial to landlords, and seven are beneficial to tenants. Half of the remaining six can be characterized as addressing general community needs such as short-term vs long-term rentals (i.e. AirBnB) or including market segments such as non-profit, supportive, and manufactured homes under the RTA umbrella.

The last three recommendations

• implement and strengthen a process for administrative penalty complaints
• improve fairness and consistency by recording all hearings
• improve procedural fairness by including more grounds for review.

are a step in the right direction for rebuilding public trust, but none of the three goes far enough. The results of investigations following administrative penalty complaints need to be tracked in a database and that database needs to be searchable by the public.

The phone recordings should be made available to the participants in the hearing. When the recordings show that the arbitrator acted contrary to the Act, the recording should be used to, at a minimum, educate the decision maker; and in cases where the error is severe or a part of a repeated pattern, to deliver discipline up to termination.

BC Justices are appointed for life; Tribunal arbitrators are not. Overturned decisions of BC Justices are available to the public. Although the Review judgements, and initial court filings, of Tribunal decisions are available to the public through the BC Supreme Court records, the original Tribunal decisions are not. They should be and they should be searchable by the arbitrator’s name.

Currently, the only grounds for judicial review are “procedural fairness” and a narrow application of the definition of “correctness.” A Tribunal Appeal is only allowed when there is new evidence or in situations of fraud. The Appeal must be filed in as short a window as three days of having received the decision (depending on the nature of the application). In other words, new evidence, or the evidence of fraud, must be discovered within three days of receiving the decision. Even considering the lead time required for the pre-hearing service of evidence, there is only a two week window for the discovery of new evidence to be actionable. Given the near impossibility to meet the requirements of an application for Review, it is not surprising that trust by the public is quite low.

Statistics

The Province of British Columbia budgeted $8.4 million for the fiscal year following March 2017. In Sept 2017 another $7 million was added to relieve the backlog at the RTB. That original $8.4M funded 29 (underpaid and overworked) arbitrators. Given 3 hearings a day and 10 stat holidays, the RTB can handle 21,750 dispute hearings, which is about 1 hearing for every 14 information calls from landlords or tenants. Did the number of dispute hearings double when the Province allocated another $7M in Sept 2017?

Comparative Privacy Concerns

If my tenant has a drunk driving conviction in British Columbia, a quick internet search will reveal the details. If they’ve been convicted of assault, that criminal judgement is available for public viewing. If they’ve lost a civil case, as the defendant or the plaintiff, I can view that judgement. But if they’ve been evicted due to failing to pay rent, those records are withheld from public viewing for reasons of privacy.

Privacy. There is nothing inherent in an eviction that causes it to require a shield of privacy that would be absent in a drunk driving conviction, a criminal conviction for assault, or a civil monetary judgement for breach of contract. None of these examples offer privacy to the defendant, or in the last example to either litigant. In fact the breach of contract example is exactly the same as a judgement for eviction save for the specific type of contract.

Trust in the Tribunal that decides residential tenancy disputes can be increased by making public decisions in much the same way that judgements are publicly available for civil and criminal matters.

The necessity of housing distinguishes RTB decisions from these other civil and criminal judgements, as does the likelihood that any citizen would be pulled into a dispute resolution. For example, privacy would have a prevailing public good for the tenant if a tenant prevailed where a landlord failed to maintain the rental property, or for a landlord if a landlord prevailed when the tenant failed to pay rent.

In either case, associating the prevailing party’s name with the corresponding judicial proceeding could unduly influence the prevailing landlord from subsequently re-renting their suite. It could also negatively effect the prevailing tenant’s future rental applications to new potential landlords.

To avoid negative repercussions of enforcing one’s own rights, a reasonable compromise would be to only disclose publicly the identity of the losing party. To handle situations of unfortunate circumstance: landlord or tenant, only disclose the details of cases when the losing party has lost the same type of case at least twice.

Modifications to Increase Trustworthiness

I’ll mention a few further modifications that would enhance trust by the public:

• publicly identify participants who repeatedly lose at RTB Tribunal Hearings.
• make Tribunal decisions searchable by the arbitrator’s name, and include, instances of Appeal or Review for each decision.
• publicly publish periodic reports of aggregate decision data; e.g. monthly press releases and database updates, of how many Dispute Resolution Applications of each type were made and what the associated decision was.

The 3 changes proposed by the Task Force that hint at accountability may expose catalysts of distrust, but they do not remove, or even dull, the thorn of indifference. Improving fairness and strengthening a complaint process can help identify and catalogue systemic injustices within the RTB. However these new policies are not a feedback mechanism with enough teeth, or any teeth, to institute accountability on the agents who make decisions about such intimate parts of one’s life as where one lays their head to rest. When the public is informed of

• participants who manipulate and abuse the system,
• arbitrators who fail to accurately interpret the law, and
• consistency of decisions from one application to another

some trust by the public, and in the Tribunal, will be restored.