Once an applicant has received their hearing package from the Residential Tenancy Branch (RTB), they must ensure that the respondent is served with both the hearing package and the applicant’s evidence within the prescribed deadlines. In turn, a respondent must submit to the RTB and serve the applicant with their evidence as soon as possible and, in any event, no later than 7 clear days before the scheduled hearing. At the hearing, both parties should also be able to provide proof of service at the request of the arbitrator.
Leading up to the hearing, the RTB accepts evidence both in paper form and digital form. Physical evidence (ex. a beer bottle that one party tossed at another) will not be accepted. Where possible, all evidence should be submitted in one single evidence package. All documents to be relied on as evidence must be clear and legible. Parties need not submit original documents and may rely on copies unless otherwise directed by the arbitrator.
Digital evidence is restricted to photographs, audio recordings and video recordings. Digital evidence must be accompanied by a printed description including a (1) table of contents, (2) identification of photographs (with a numbering or lettering system), (3) a statement for each digital file describing its contents, (4) a time code for the key point in each audio or video recording and (5) a statement as to the significance of each digital file. The party submitting the digital evidence will have to ensure that the opposing party is able to access this evidence. Otherwise, the arbitrator may determine that the digital evidence will not be considered. When submitting digital evidence, it is recommended that the party in question complete and submit the RTB’s Digital Evidence Details form.
Where an applicant is having difficulty serving the respondent using standard service methods, the applicant may apply to the RTB for an order for substituted service. The application must show that they made reasonable attempts to serve the respondent or provide evidence that shows the other party is unlikely to receive the intended documents if served using standard service methods. An application for substituted service may also be made at the hearing but, if presented at this time, may result in an adjournment.
The third type of evidence accepted by the RTB is testimonial evidence made by the parties and their witnesses during the hearing. Parties will have to ensure that their witnesses are informed of the scheduled date and time of the hearing and will have to ensure their participation. If an important witness refuses to attend the hearing or to provide evidence otherwise, either party may make a written request to the RTB to issue a summons. Such request should be made as soon as possible before the hearing and should (1) state the name and address of the witness, (2) provide the reason the witness is required to attend and give evidence, (3) describe efforts made to have the witness attend the hearing, (4) describe the documents or things, if any, which are required for the hearing and (5) provide the reason why such documents or other things are relevant. The party requesting the summons must provide the witness with compensation for the reasonable cost of giving that evidence.
While it may seem evident, applicants should ensure that the entirety of their claim is included in their application. For instance, when making a claim for property damage caused by a tenant, if a landlord intends to withhold all or a part of their tenant’s security deposit, they must state this in their application. The arbitrator can deny any remedy or relief sought at the hearing that was not included in the application. If an applicant realizes that their application is incomplete, they may amend their application, provided that the amended application is received by the respondent(s) not less than 14 clear days before the hearing. Otherwise, the applicant will have to seek permission from the arbitrator at the beginning of the hearing to allow the application to be amended.
At any point in time, but not later than three days before the scheduled hearing, the parties may agree to have the hearing rescheduled by providing their written consent to the RTB. If an agreement cannot be reached before this time, either party or a party’s agent may make a request at the hearing to have it adjourned to a later date. In such circumstances, the arbitrator will decide at the beginning of the hearing whether the circumstances warrant an adjournment.
A respondent may make a counterclaim against the applicant by filing their own Application for Dispute Resolution. The issues identified in the cross-application must be related to the issues identified in the original application and the respondent making the cross-application must identify the application they are countering.
Any cross-application must be made as soon as possible such that the opposing party receives both the hearing package and the evidence in support of the cross-application not later than 14 clear days before the hearing. The cross-applicant must submit the evidence to the RTB at the same time as the application is submitted, if submitted in person, or within three business days of submitting the application, if submitted online. The cross-applicant must also serve the opposing party with the evidence in support of cross-application at the same time as the hearing package which must be served within 3 days of it being made available by the RTB.
Last revised: April 17, 2016
- When submitting your evidence to the Residential Tenancy Branch (RTB) for consideration, it can be extremely helpful if you draft written submissions to accompany your evidence. The written submissions can consist of a factual summary of your case that makes specific reference to each piece of evidence that you submitted. The purpose of such a document is to provide the arbitrator with an overview of your case that they can refer back to when grappling with the issues to be decided. You may wish to retain a lawyer to assist you with drafting your written submissions.
- It is not enough to simply serve or arrange to have served your tenant. You should always ensure that you have sufficient evidence of this service. For example, if you serve your tenant with documents in person, you could have an independent witness accompany you. This witness could then submit a sworn statement attesting to the fact that service took place. When serving documents by registered mail, proof of service could be as simple as submitting the receipt from Canada Post and printing out the tracking results. Where possible, the most reliable service method is usually registered mail.
- In situations where you require testimony from a witness who refuses to partake in the dispute resolution hearing, you may request that the RTB issue a summons to this witness. However, before doing so, you should weigh the pros and cons carefully, as an uncooperative witness may also refuse to provide favourable testimony for your case if this witness is essentially forced to testify.
- When calculating the deadlines for service, you should always consider the deemed service provisions. For example, if your dispute resolution hearing is scheduled for April 30th and, as the respondent, you are planning to serve your evidence by registered mail to the applicant, you should mail your evidence by April 17th. In this case, your evidence will be deemed served on April 22nd– a clear 7 days before the date of the hearing.