Fraud is a Five Letter Word
|Authority||Residential Tenancy Branch|
Sienna and her partner took their landlord to arbitration after being refused credit on their rent in exchange for major improvements they had done to their rented property.
The arbitrator dismissed Sienna’s claim based on the landlord’s testimony that Sienna had failed to provide the landlord with proper notice of her claim. Sienna could not immediately prove the landlord had been properly served but went home and found the parcel tracking number for the hearing package she sent. Proof in hand, Sienna returned to the Residential Tenancy Branch and requested a review of the decision on the grounds that the decision had been obtained by fraud.
The RTB dismissed the application, on the basis that the tracking number was not new evidence and the onus was on Sienna to allege and prove new and material facts that were not available to them at the time of the hearing.
Sienna contacted us, frustrated that she was not given the opportunity to demonstrate that the RTB had been manipulated by a fraudulent statement from the landlord. We decided to investigate.
The Residential Tenancy Act authorizes the review of a decision in any one of the following circumstances: a party was unable to attend the hearing because of circumstances that could not be anticipated and were beyond the party’s control; a party has new and relevant evidence that was not available at the time of the original hearing; or, a party has evidence that the decision or order was obtained by fraud.
In view of the fact that new and relevant evidence, and evidence that a decision was obtained by fraud were separate grounds on which a review may be conducted, we could not reconcile the RTB’s decision or a related RTB policy. The policy stated that in order to demonstrate fraud:
…the party alleging fraud must allege and prove new and material facts, or newly discovered and material facts, which were not known to the applicant at the time of the hearing…
We asked the RTB to explain their position many times. The RTB’s explanation was based in a belief that in that absence of a requirement for new evidence, allegations of fraud would enable the parties to re-argue matters that were decided in the original hearing. Sienna abandoned the RTB process and took her landlord to court. We continued our investigation, concerned about what appeared to be an inconsistency between the Residential Tenancy Act and the RTB’s policy.
Eventually, after many letters, phone calls and meetings, the RTB recognized the problem and amended its policy. The amended guideline now states that evidence of fraud is a separate ground for review, as stated in the Residential Tenancy Act.
|Category||Housing and Property|