2006 Legislative Session: 2nd Session, 38th Parliament
THIRD READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 18th day of May, 2006
Ian D. Izard, Q.C., Law Clerk
HONOURABLE RICH COLEMAN
MINISTER OF FORESTS AND RANGE
AND MINISTER RESPONSIBLE FOR HOUSING
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Manufactured Home Park Tenancy Act
1 Section 1 of the Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77, is amended
(a) by repealing the definitions of "arbitration", "arbitrator" and "director" and substituting the following:
"director" means the director appointed under section 8 [appointment of director] and, in relation to a power, duty or function of the director given to an employee referred to in section 9 (2) or delegated to a person retained under that section, includes that employee or person; , and
(b) by adding the following definitions:
"application for dispute resolution" means an application to the director under section 51 (1) [determining disputes];
"dispute resolution proceeding" means a proceeding started by making an application under section 51 (1) [determining disputes]; .
2 Section 3 is amended by striking out "as a tenant,".
3 Sections 6 (2), 36 (2), 39 (5), 40 (5), 41 (6), 42 (5), 49 (1) and 59 (3) are amended by striking out "apply for arbitration" and substituting "make an application for dispute resolution".
4 Section 9 is repealed and the following substituted:
9 (1) The director is responsible for the administration and management of all matters and persons appointed or retained under this Act.
(2) Employees may be appointed under the Public Service Act, and the director may retain other persons, whom the director considers necessary to exercise the director's powers and perform the director's duties and functions under this Act.
(3) The director may establish and publish rules of procedure for the conduct of proceedings under Part 6 [Resolving Disputes].
(4) The director may not assign or delegate to the same person both the function of conducting investigations under section 88.1 [investigations] into a matter and the power to impose penalties under section 86.1 [administrative penalties] in relation to that matter.
(5) The director may do one or more of the following:
(a) provide information to landlords and tenants about their rights and obligations under this Act;
(b) help landlords and tenants resolve any dispute in relation to which an application for dispute resolution has been or may be made;
(c) publish, or otherwise make available to the public, decisions under Part 6 or summaries of them.
9.1 (1) The director may delegate to a person retained under section 9 (2) any of the director's powers, duties or functions under this Act, except the power under section 9 (3) and the power to delegate under this section.
(2) A delegation under subsection (1)
(a) may be cancelled,
(b) does not prevent the director from carrying out the delegated power, duty or function, and
(c) may be subject to the terms or conditions the director considers appropriate.
(3) If the director ceases to hold office, a delegation under this section continues in effect
(a) for the duration of the contract, or
(b) until cancelled by a succeeding director.
(4) A person who claims to be carrying out a power, duty or function delegated by the director under this section, on request, must produce evidence of the delegation.
5 Section 11 is amended
(a) by renumbering section 11 as section 11 (1),
(b) in subsection (1) by striking out everything before "must not be compelled" and substituting "The director and persons employed, engaged or retained under section 9 (2) [director's powers and duties]" and by striking out "or an arbitration", and
(c) by adding the following subsection:
(2) Despite subsection (1), the court may require the director to produce the record of a dispute resolution proceeding that is the subject of an application for judicial review under the Judicial Review Procedure Act.
6 Sections 14 (3) (d), 23 (c) and 59 (2) (b) are amended by striking out "arbitrator's order" and substituting "order of the director".
7 Section 24 (1) and (2) is amended by striking out "must not restrict access" and substituting "must not unreasonably restrict access".
8 Section 25 (2) is amended by striking out "unless the landlord consents to" and substituting "unless the landlord agrees in writing to".
9 Sections 27 (6), 28 (1) (b), 37 (1) (f), 40 (1) (k), 51 (4) (b), 57 (3), 58 (1), 59 (2), 60, 61 (1) and (2), 62, 63, 64 (2), 65 (2), 67 (1), 69 (1), 70 (1) and (3), 71 (1), 72 (2), 77 (1), 77.1 (2), 78 (1), 81 (i), 82 (1) (e) and (2) (e), 87 (3) and 89 (2) (q) are amended by striking out "an arbitrator" wherever it appears and substituting "the director".
10 Section 28 (1) is amended
(a) by striking out "if one of following" and substituting "if one of the following", and
(b) by adding the following paragraph:
(c) the tenancy agreement authorizes the assignment or sublease.
11 Section 36 is amended
(a) by repealing subsection (1) (a) and (b) and substituting the following:
(a) calculated in accordance with the regulations,
(b) ordered by the director on an application under subsection (3), or
(c) agreed to by the tenant in writing. ,
(b) in subsection (3) by striking out "a landlord may apply to an arbitrator for approval" and substituting "a landlord may request the director's approval" and by adding "by making an application for dispute resolution" after "subsection (1) (a)", and
(c) by repealing subsection (4).
12 Section 37 (1) (a) is amended by adding the following subparagraph:
(vi) section 43 [tenant may end tenancy early]; .
13 Section 38 (3) is repealed and the following substituted:
(3) If a landlord has failed to comply with a material term of the tenancy agreement and has not corrected the situation within a reasonable period after the tenant gives written notice of the failure, the tenant may end the tenancy effective on a date that is after the date the landlord receives the notice.
14 Sections 39 (4) (b), 40 (4), 41 (5), 42 (4), 47 (1) and 48 (2) are amended by striking out "by applying for arbitration" wherever it appears and substituting "by making an application for dispute resolution".
15 Section 40 (1) (h) is amended by striking out "written consent or the order of an arbitrator" and substituting "written consent or an order of the director".
16 Section 47 (2) is amended by striking out "order of possession under this section" and substituting "order of possession under this section to a tenant".
17 Sections 47 (2), 48 (3), 49 (2), 55 (1) to (3), 56 (1), 57 (2), 59 (1) and (3), 64 (1), 65 (1), 67 (2) and (3), 68, 70 (2), 71 (1.1) and (3) and 77.1 (1) are amended by striking out "An arbitrator" and substituting "The director".
18 Sections 47 (2), 48 (1), 56 (2), 58 (1), 62, 63, 64 (2) (a) and (b), 68, 69 (1) (b), 70 (1) (b), 71 (2) and (3), 74 (1) (b) (iii) and (4), 75 (3) and 77.1 (2) are amended by striking out "the arbitrator" wherever it appears and substituting "the director".
19 Section 48 is amended
(a) in subsection (1) by striking out "applies for arbitration" and substituting "makes an application for dispute resolution" and by striking out "order of possession of the manufactured home site if," and substituting "order of possession of the manufactured home site to the landlord if,", and
(b) by adding the following subsection:
(4) Despite section 54 [setting down dispute for hearing], in the circumstances described in subsection (2) (b), the director may, without holding a hearing,
(a) grant an order of possession to the landlord, and
(b) if the application is in relation to the non-payment of rent, grant an order requiring payment of that rent.
20 The following section is added:
49.1 (1) A landlord may make an application for dispute resolution requesting an order
(a) ending a tenancy because
(i) the manufactured home site is not capable of being occupied by a manufactured home, or
(ii) the tenancy agreement is otherwise frustrated, and
(b) granting the landlord an order of possession of the manufactured home site.
(2) If the director is satisfied that a manufactured home site is not capable of being occupied as a manufactured home site or the tenancy agreement is otherwise frustrated, the director may make an order
(a) deeming the tenancy agreement ended on the date the director considers that performance of the tenancy agreement became impossible, and
(b) specifying the effective date of the order of possession granted to the landlord.
21 The heading to Division 1 of Part 6 is repealed and the following substituted:
Division 1 -- Dispute Resolution Proceedings .
22 Section 51 is amended
(a) in subsection (1) by striking out everything before paragraph (a) and substituting "Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a dispute with the person's landlord or tenant in respect of any of the following:",
(b) by repealing subsection (2) and substituting the following:
(2) Except as provided in subsection (4), if the director receives an application under subsection (1), the director must determine the dispute unless
(a) the claim is for more than the monetary limit for claims under the Small Claims Act,
(b) the application was not made within the applicable period specified under this Act, or
(c) the dispute is linked substantially to a matter that is before the Supreme Court. ,
(c) in subsection (3) by striking out "submitted to arbitration" and substituting "submitted for determination by the director", and
(d) in subsection (5) by striking out "an arbitration under this Act." and substituting "a dispute resolution proceeding."
23 Section 52 is amended
(a) by repealing subsection (1),
(b) in subsection (2) by striking out "An application for arbitration" and substituting "An application for dispute resolution",
(c) in subsection (2) (a) by striking out "the approved form," and substituting "the applicable approved form,",
(d) in subsection (2) (b) by striking out "of the arbitration" and substituting "of the dispute resolution proceeding",
(e) by repealing subsection (3) and substituting the following:
(3) A person who makes an application for dispute resolution must give a copy of the application to the other party within 3 days of making the application, or within a different period specified by the director. ,
(f) in subsection (5) by striking out "an application for arbitration" and substituting "an application for dispute resolution", and
(g) by repealing subsection (5) (a) and substituting the following:
(a) in the director's opinion, the application does not disclose a dispute that may be determined under this Part, .
24 Section 53 is amended
(a) in subsection (1) by striking out "by which an application for arbitration must be filed, it must be filed" and substituting "by which an application for dispute resolution must be made, it must be made",
(b) in subsection (2) by striking out "if an application for arbitration is not filed" and substituting "if an application for dispute resolution is not made", and
(c) by repealing subsection (3) and substituting the following:
(3) If an application for dispute resolution is made by a landlord or tenant within the applicable limitation period under this Act, the other party to the dispute may make an application for dispute resolution in respect of a different dispute between the same parties after the applicable limitation period but before the dispute resolution proceeding in respect of the first application is concluded.
25 Section 54 is repealed and the following substituted:
54 If an application for dispute resolution is properly completed and is accepted by the director, the director must set the matter down for a hearing and,
(a) if the hearing is to be oral, specify the date, time and place of the hearing, and
(b) if the hearing is to be in writing, specify when written submissions are due.
26 Section 55 is amended
(a) in subsection (1) by striking out "to arbitrate" and substituting "to determine",
(b) by repealing subsection (1) (a) and substituting the following:
(a) disputes in relation to which the director has accepted an application for dispute resolution, and ,
(c) by repealing subsection (4) and substituting the following:
(4) The director may dismiss all or part of an application for dispute resolution if
(a) there are no reasonable grounds for the application or part,
(b) the application or part does not disclose a dispute that may be determined under this Part, or
(c) the application or part is frivolous or an abuse of the dispute resolution process. , and
(d) by repealing subsection (5).
27 Section 56 (2) is amended by striking out "during arbitration proceedings," and substituting "during dispute resolution proceedings,".
28 Section 57 is amended
(a) by repealing subsection (1),
(b) in subsection (2) by striking out "other arbitration decisions under this Act." and substituting "other decisions under this Part.",
(c) by repealing subsection (3) (c) and substituting the following:
(c) amend an application for dispute resolution or permit an application for dispute resolution to be amended. , and
(d) by repealing subsection (4) and substituting the following:
(4) If, in the director's opinion, another tenant of a landlord who is a party to a dispute resolution proceeding will be or is likely to be materially affected by the determination of the dispute, the director may
(a) order that the other tenant be given notice of the proceeding, and
(b) provide that other tenant with an opportunity to be heard in the proceeding.
29 Sections 65 (1) and 72 (1) and (7) are amended by striking out "party to an arbitration" and substituting "party to a dispute resolution proceeding".
30 Section 66 is amended
(a) in subsections (1) and (2) by striking out "applications for arbitration" and substituting "applications for dispute resolution",
(b) in subsection (1) by striking out "schedule the arbitrations to be heard by a single arbitrator at the same time." and substituting "hear the disputes at the same time.", and
(c) in subsection (2) by striking out "schedule the arbitrations to be heard by a single arbitrator." and substituting "hear the disputes together."
31 Section 67 is amended
(a) in subsection (1) by striking out "an arbitration hearing" and substituting "a hearing under this Division", and
(b) in subsection (4) by striking out "party to an arbitration" and substituting "party to a dispute resolution proceeding".
32 Section 68 (b) is amended by striking out "the arbitration." and substituting "the dispute resolution proceeding."
33 Section 69 is amended
(a) in subsection (1) by striking out "arbitrator's own initiative," and substituting "director's own initiative,",
(b) in subsection (1) (a) by striking out "an arbitration hearing or proceeding" and substituting "a hearing under this Division", and
(c) in subsection (1) (b) by striking out "subject matter of the arbitration." and substituting "subject matter of the dispute."
34 Section 70 (2) is amended by striking out "in an arbitration," and substituting "in a dispute resolution proceeding,".
35 Section 71 (1.1) (a) is amended by striking out "arbitrator's own initiative," and substituting "director's own initiative,".
36 Section 71.1 is repealed and the following substituted:
71.1 Sections 1, 44, 48, 56 to 58 and 61 of the Administrative Tribunals Act apply to the director as if the director were a tribunal and to dispute resolution proceedings under Division 1 of this Part and reviews under Division 2 of this Part.
37 Section 72 is amended
(a) in subsections (1) and (2) (c) by striking out "the arbitrator's decision or order" and substituting "the director's decision or order",
(b) by repealing subsection (6), and
(c) in subsection (7) by striking out "the arbitration." and substituting "the proceedings."
38 Sections 72 (3) and (5), 73 and 74 (1) are amended by striking out "an arbitrator's decision or order" and substituting "a decision or order of the director".
39 Section 73 (a) (iii) is amended by striking out "or 49 [landlord's application for order ending tenancy early];" and substituting ", 49 [application for order ending tenancy early] or 49.1 [order of possession: tenancy frustrated];".
40 Section 74 is amended
(a) in subsection (1) by striking out "the arbitrator designated to conduct the review may" and substituting "the director may", and
(b) in subsection (3) by striking out "The arbitrator designated to review a decision or an order may order that the decision or order be suspended," and substituting "The director may order that a decision or order in relation to which a review has been requested be suspended,".
41 Section 75 is amended by repealing subsections (1) and (2) and substituting the following:
(1) Unless the director dismisses or refuses to consider an application for a review under section 74, the director must review the decision or order.
(2) The director may conduct a review
(a) based solely on the record of the original dispute resolution proceeding and the written submissions of the parties, if any,
(b) by reconvening the original hearing, or
(c) by holding a new hearing.
42 Section 76 is repealed.
43 The heading to Division 3 of Part 6 is amended by striking out "Arbitration" and substituting "Director's".
44 Section 77 (1) (a) is amended by striking out "the arbitrator's decision or order" and substituting "the director's decision or order".
45 Section 77.1 is amended
(a) in subsection (1) by striking out "an arbitration proceeding under Division 1 of this Part or a review under Division 2 of this Part" and substituting "a dispute resolution proceeding under Division 1 of this Part or in a review under Division 2 of this Part", and
(b) in subsection (2) by striking out "under this Act".
46 Section 78 (2) (a) is amended by striking out "the arbitrator's decision or order" and substituting "the director's decision or order".
47 Division 4 of Part 6 is repealed.
48 Section 82 is amended
(a) in subsection (1) by striking out everything before "when required to be given" and substituting "An application for dispute resolution or a decision of the director to proceed with a review under Division 2 of Part 6,",
(b) in subsection (2) striking out "or 49 [landlord's application for order ending tenancy early]" and substituting ", 49 [application for order ending tenancy early] or 49.1 [order of possession: tenancy frustrated]", and
(c) by adding the following subsection:
(3) A notice under section 86.21 [notice of administrative penalty] must be given in a manner referred to in subsection (1).
49 Part 7 is amended by adding the following division:
Division 2.1 -- Administrative Penalties
86.1 (1) Subject to the regulations, the director may order a person to pay a monetary penalty if the director is satisfied on a balance of probabilities that the person has
(a) contravened a provision of this Act or the regulations, or
(b) failed to comply with a decision or order of the director.
(2) Before the director imposes an administrative penalty on a person, the director must
(a) give the person an opportunity to be heard, and
(b) consider all the following:
(i) previous enforcement actions for contraventions of a similar nature by the person;
(ii) the gravity and magnitude of the contravention;
(iii) the extent of the harm to others resulting from the contravention;
(iv) whether the contravention was repeated or continuous;
(v) whether the contravention was deliberate;
(vi) any economic benefit derived by the person from the contravention;
(vii) the person's efforts to correct the contravention.
(3) A penalty imposed under this section must be paid within the prescribed time.
(4) Instead of enforcing a penalty under subsection (1), the director, subject to the regulations, may enter into an agreement with the person who would otherwise be liable for the penalty.
(5) An agreement under subsection (4) may provide, in accordance with the regulations, for the reduction or cancellation of the penalty subject to the terms and conditions the director considers necessary or desirable.
(6) An agreement under subsection (4) must specify the time for performing the terms and conditions and, if the person fails to perform those terms and conditions by the date specified, the penalty ordered under subsection (1) is due and payable on the date of the failure.
(7) Neither the director's decision whether to enter into an agreement under subsection (4), nor the terms and conditions of such an agreement, may be the subject of an application for dispute resolution.
(8) If a corporation contravenes the Act or the regulations or fails to comply with a decision or order as described under subsection (1), an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the contravention or failure is also liable under this section even though the corporation is liable for or pays a monetary penalty under this section.
86.11 (1) A person who has been charged with an offence under this Act may not be subject to an administrative penalty in respect of the circumstances that gave rise to the charge.
(2) If the director imposes an administrative penalty on or enters into an agreement with a person, a prosecution for an offence under this Act in respect of the contravention or failure may not be brought against the person.
86.2 (1) A monetary penalty imposed under section 86.1 (1) may not exceed $5 000.
(2) If a contravention or failure referred to in section 86.1 (1) occurs over more than one day or continues for more than one day, separate monetary penalties, each not exceeding the maximum under subsection (1) of this section, may be imposed for each day the contravention or failure continues.
86.21 If the director imposes an administrative penalty on a person, the director must give to the person a notice specifying each of the following:
(a) the contravention or failure to which the penalty relates;
(b) the amount of the penalty;
(c) the date by which the penalty must be paid;
(d) the person's right to have the director reconsider the decision imposing the penalty.
86.3 (1) A person who receives a notice under section 86.21 may apply to the director for a review of the matters set out in the notice.
(2) Division 2 [Review of Decisions and Orders] of Part 6 applies to a review referred to in subsection (1).
86.31 (1) An administrative penalty imposed under this Division is a debt due to the government.
(2) If a person fails to pay an administrative penalty as required by a notice under section 86.21 and the time for requesting a review under section 86.3 has expired, the director may file a certificate in a court that has jurisdiction and, upon filing, the certificate has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court with which it is filed.
(3) A certificate under subsection (2) must be in the approved form, be signed by the director and set out
(a) the name of the person who is liable for the penalty,
(b) the contravention or failure in relation to which the penalty is imposed, and
(c) the amount of the penalty.
50 Section 87 (1) is amended
(a) by renumbering paragraph (a) as paragraph (a.1), and
(b) by adding the following paragraph:
(a) section 13 (1), (2) or (3) [requirements for tenancy agreements]; .
51 The following section is added:
88.1 (1) The director may conduct investigations to ensure compliance with this Act and the regulations whether or not the director has accepted an application for dispute resolution in relation to the matter.
(2) If an investigation is conducted, the director must make reasonable efforts to give the person under investigation an opportunity to respond.
52 Section 89 (2) is amended
(a) by repealing paragraph (j) and substituting the following:
(j) respecting matters related to reviews under Division 2 of Part 6; , and
(b) by adding the following paragraph:
(r.1) respecting administrative penalties, including, without limiting this,
(i) establishing procedures for providing an opportunity to be heard for the purposes of section 86.1 (2) (a), which need not entail an oral hearing,
(ii) prescribing consequences for failing to appear or provide submissions, as applicable, on an opportunity prescribed under subparagraph (i), which may include, but are not limited to, proceeding in the absence of the person who fails to appear or without their submission, as applicable,
(iii) prescribing time limits for paying administrative penalties,
(iv) the matters that must be considered by the director in establishing a penalty in a particular case,
(v) prescribing a limitation period for imposing an administrative penalty and evidentiary matters in relation to that period,
(vi) respecting agreements, including prescribing terms and conditions that must be included in an agreement under section 86.1 (4), and
(vii) establishing consequences for failing to pay an administrative penalty which may include, but are not limited to, imposing additional penalties; .
53 Sections 92, 93 and 94 are repealed.
54 The following section is added:
96.1 (1) Effective on the date this section comes into force, each arbitrator appointed under section 79, as it read immediately before its repeal, is deemed to have been retained under section 9 (2) for a term ending on the date the appointment under section 79 would otherwise have terminated.
(2) Despite section 9.1 (1), a person described in subsection (1) of this section has the powers and duties of the director necessary for the purposes of determining a dispute under Division 1 of Part 6, or a review under Division 2 of Part 6, delegated to the person under section 9.1 (1).
(3) Subsections (1) and (2) must not be construed as
(a) a termination for the purposes of section 14.9 (3) of the Public Sector Employers Act, or
(b) a breach of the service contract related to the appointment of a person to whom subsection (1) applies.
(4) An order of an arbitrator made before the date this section comes into force is deemed to be an order of the director.
Residential Tenancy Act
55 Section 1 of the Residential Tenancy Act, S.B.C. 2002, c. 78, is amended
(a) by repealing the definitions of "arbitration" and "arbitrator",
(b) by adding the following definitions:
"application for dispute resolution" means an application to the director under section 58 (1) [determining disputes];
"assisted or supported living residence" means residential property or a part of residential property in which living accommodation described in section 4 (g) (v) is provided;
"assisted or supported living unit" means a rental unit in an assisted or supported living residence;
"dispute resolution proceedings" means proceedings started by making an application for dispute resolution under section 58 (1);
"service agreement" means an agreement described in section 57.2 [service agreements in relation to assisted or supported living units]; ,
(c) by repealing the definition of "director" and substituting the following:
"director" means the director appointed under section 8 [appointment of director] and, in relation to a power, duty or function of the director given to an employee referred to in section 9 (2) or delegated to a person retained under that section, includes that employee or person; ,
(d) by repealing paragraph (a) of the definition of "landlord" and substituting the following:
(a) the owner of the rental unit, the owner's agent or another person who, on behalf of the landlord,
(i) permits occupation of the rental unit under a tenancy agreement, or
(ii) exercises powers and performs duties under this Act, the tenancy agreement or a service agreement; , and
(e) in paragraph (a) of the definition of "residential property" by striking out "a building, or related group of buildings," and substituting "a building, a part of a building or a related group of buildings,".
56 Section 3 is amended by striking out "as a tenant," and substituting "or a service agreement,".
57 Section 4 (g) is amended by repealing subparagraphs (i) and (v) and substituting the following:
(i) in a community care facility under the Community Care and Assisted Living Act,
(v) except as provided in Part 4.1 [Assisted or Supported Living Tenancies] of this Act, in which hospitality services or personal care services, both as defined in Part 4.1, are provided by the landlord, or .
58 Sections 6 (2), 43 (2), 46 (5), 47 (5), 48 (6), 49 (9), 56 (1) and 66 (3) are amended by striking out "apply for arbitration" and substituting "make an application for dispute resolution".
59 Section 9 is repealed and the following substituted:
9 (1) The director is responsible for the administration and management of all matters and persons appointed or retained under this Act.
(2) Employees may be appointed under the Public Service Act, and the director may retain other persons, whom the director considers necessary to exercise the director's powers and perform the director's duties and functions under this Act.
(3) The director may establish and publish rules of procedure for the conduct of proceedings under Part 5 [Resolving Disputes].
(4) The director may not assign or delegate to the same person both the function of conducting investigations under section 96.1 [investigations] into a matter and the power to impose penalties under section 94.1 [administrative penalties] in relation to that matter.
(5) The director may do one or more of the following:
(a) provide information to landlords and tenants about their rights and obligations under this Act;
(b) help landlords and tenants resolve any dispute in relation to which an application for dispute resolution has been or may be made;
(c) publish, or otherwise make available to the public, decisions under Part 5 or summaries of them.
9.1 (1) The director may delegate to a person retained under section 9 (2) any of the director's powers, duties or functions under this Act, except the power under section 9 (3) and the power to delegate under this section.
(2) A delegation under subsection (1)
(a) may be cancelled,
(b) does not prevent the director from carrying out the delegated power, duty or function, and
(c) may be subject to the terms or conditions the director considers appropriate.
(3) If the director ceases to hold office, a delegation under this section continues in effect
(a) for the duration of the contract, or
(b) until cancelled by a succeeding director.
(4) A person who claims to be carrying out a power, duty or function delegated by the director under this section, on request, must produce evidence of the delegation.
60 Section 11 is amended
(a) by renumbering section 11 as section 11 (1),
(b) in subsection (1) by striking out everything before "must not be compelled" and substituting "The director and persons employed, engaged or retained under section 9 (2) [director's powers and duties]" and by striking out "or an arbitration", and
(c) by adding the following subsection:
(2) Despite subsection (1), the court may require the director to produce the record of a dispute resolution proceeding that is the subject of an application for judicial review under the Judicial Review Procedure Act.
61 Sections 14 (3) (c), 29 (1) (d) and 66 (2) (b) are amended by striking out "arbitrator's order" and substituting "order of the director".
62 Section 30 (1) and (2) is amended by striking out "must not restrict access" and substituting "must not unreasonably restrict access".
63 Section 31 (3) is amended by striking out "unless the landlord consents to" and substituting "unless the landlord agrees in writing to".
64 Sections 31 (3), 33 (6), 38 (3) (a) and (4) (b), 44 (1) (f), 47 (1) (l), 58 (4) (b), 64 (3), 65 (1), 66 (2), 67, 68 (1) and (2), 69, 71 (2), 72 (2), 74 (1), 76 (1), 77 (1) and (3), 78 (1), 79 (2), 84 (1), 84.1 (2), 85 (1), 88 (i), 89 (1) (e) and (2) (e), 95 (3) and 97 (2) (o) are amended by striking out "an arbitrator" wherever it appears and substituting "the director".
65 Section 38 (1) (d) is amended by striking out "file an application for arbitration to make a claim" and substituting "make an application for dispute resolution claiming".
66 Section 43 is amended
(a) by repealing subsection (1) (a) and (b) and substituting the following:
(a) calculated in accordance with the regulations,
(b) ordered by the director on an application under subsection (3), or
(c) agreed to by the tenant in writing. ,
(b) in subsection (3) by striking out "a landlord may apply to an arbitrator for approval" and substituting "a landlord may request the director's approval" and by adding "by making an application for dispute resolution" after "subsection (1) (a)", and
(c) by repealing subsection (4).
67 Section 44 (1) (a) is amended by adding the following subparagraphs:
(vi) section 49.1 [landlord's notice: tenant ceases to qualify];
(vii) section 50 [tenant may end tenancy early];
(viii) section 57.41 [notice to end tenancy: tenant's needs]; .
68 Section 45 (3) is repealed and the following substituted:
(3) If a landlord has failed to comply with a material term of the tenancy agreement or, in relation to an assisted or supported living tenancy, of the service agreement, and has not corrected the situation within a reasonable period after the tenant gives written notice of the failure, the tenant may end the tenancy effective on a date that is after the date the landlord receives the notice.
69 Sections 46 (4) (b), 47 (4), 48 (5), 49 (8), 54 (1) and 55 (2) are amended by striking out "by applying for arbitration" wherever it appears and substituting "by making an application for dispute resolution".
70 Section 47 (1) is amended
(a) by repealing paragraph (h) (i) and substituting the following:
(i) has failed to comply with a material term of the tenancy agreement or of a service agreement, and , and
(b) by adding the following paragraph:
(m) the tenant of an assisted or supported living unit fails to pay the amount due under the applicable service agreement within 30 days after the date it is required to be paid under the service agreement.
71 The following section is added:
49.1 (1) In this section:
"public housing body" means a prescribed person or organization;
"subsidized rental unit" means a rental unit that is
(a) operated by a public housing body, or on behalf of a public housing body, and
(b) occupied by a tenant who was required to demonstrate that the tenant, or another proposed occupant, met eligibility criteria related to income, number of occupants, health or other similar criteria before entering into the tenancy agreement in relation to the rental unit.
(2) Subject to section 50 [tenant may end tenancy early] and if provided for in the tenancy agreement, a landlord may end the tenancy of a subsidized rental unit by giving notice to end the tenancy if the tenant or other occupant, as applicable, ceases to qualify for the rental unit.
(3) Unless the tenant agrees in writing to an earlier date, a notice under this section must end the tenancy on a date that is
(a) not earlier than 2 months after the date the notice is received,
(b) the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement, and
(c) if the tenancy agreement is a fixed term tenancy agreement, not earlier than the date specified as the end of the tenancy.
(4) A notice under this section must comply with section 52.
(5) A tenant may dispute a notice under this section by making an application for dispute resolution within 15 days after the date the tenant receives the notice.
(6) If a tenant who has received a notice under this section does not make an application for dispute resolution in accordance with subsection (5), the tenant
(a) is conclusively presumed to have accepted that the tenancy ends on the effective date of the notice, and
(b) must vacate the rental unit by that date.
72 Section 50 (1) is amended by striking out "section 49 [landlord's use of property]," and substituting "section 49 [landlord's use of property] or 49.1 [landlord's notice: tenant ceases to qualify],".
73 Section 51 (1) is repealed and the following substituted:
(1) A tenant who receives a notice to end a tenancy under section 49 [landlord's use of property] is entitled to receive from the landlord on or before the effective date of the landlord's notice an amount that is the equivalent of one month's rent payable under the tenancy agreement.
(1.1) A tenant referred to in subsection (1) may withhold the amount authorized from the last month's rent and, for the purposes of section 50 (2), that amount is deemed to have been paid to the landlord.
(1.2) If a tenant referred to in subsection (1) gives notice under section 50 before withholding the amount referred to in that subsection, the landlord must refund that amount.
74 Section 54 (2) is amended by striking out "order of possession under this section" and substituting "order of possession to a tenant under this section".
75 Sections 54 (2), 55 (3), 62 (1), (2) and (3), 63 (1), 64 (2), 66 (1) and (3), 70 (1), 71 (1), 72 (1), 74 (2) and (3), 75, 77 (2), 78 (1.1) and (3) and 84.1 (1) are amended by striking out "An arbitrator" and substituting "The director".
76 Sections 54 (2), 55 (1), 63 (2), 65 (1), 69, 70 (2), 71 (2) (a) and (b), 75, 76 (1) (b), 77 (1) (b), 78 (2) and (3), 81 (1) (b) and (4), 82 (3) and 84.1 (2) are amended by striking out "the arbitrator" wherever it appears and substituting "the director".
77 Section 55 is amended
(a) in subsection (1) by striking out "applies for arbitration" and substituting "makes an application for dispute resolution" and by striking out "order of possession of the rental unit if," and substituting "order of possession of the rental unit to the landlord if,", and
(b) by adding the following subsection:
(4) Despite section 61 [setting down dispute for hearing], in the circumstances described in subsection (2) (b), the director may, without holding a hearing,
(a) grant an order of possession, and
(b) if the application is in relation to the non-payment of rent, grant an order requiring payment of that rent.
78 Section 56 is amended
(a) in subsection (1) (a) by striking out "section 47 [landlord's notice: cause]," and substituting "section 47 [landlord's notice: cause] or 57.41 [notice to end tenancy: tenant's needs],",
(b) by repealing subsection (2) and substituting the following:
(2) The director may make an order specifying an earlier date on which a tenancy ends and the effective date of the order of possession only if satisfied, in the case of a landlord's application,
(a) either that
(i) the health or safety of the tenant of an assisted or supported living unit is seriously jeopardized because of
(A) the tenant's own behavior, or
(B) the landlord's inability to meet the tenant's needs with the current hospitality services and personal care services offered by the landlord, or
(ii) the tenant or a person permitted on the residential property by the tenant has done any of the following:
(A) significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property;
(B) seriously jeopardized the health or safety or a lawful right or interest of the landlord or another occupant;
(C) put the landlord's property at significant risk;
(D) engaged in illegal activity that has caused or is likely to cause damage to the landlord's property;
(E) engaged in illegal activity that has adversely affected or is likely to adversely affect the quiet enjoyment, security, safety or physical well-being of another occupant of the residential property;
(F) engaged in illegal activity that has jeopardized or is likely to jeopardize a lawful right or interest of another occupant or the landlord;
(G) caused extraordinary damage to the residential property, and
(b) it would be unreasonable, or unfair to the landlord, the tenant or other occupants of the residential property, to wait for a notice to end the tenancy under section 47 [landlord's notice: cause] or 57.41 [notice to end tenancy: tenant's needs] to take effect.
(2.1) A tenant may make an application for dispute resolution to request an order ending a tenancy on a date that is earlier than the tenancy would end if notice to end the tenancy were given under section 57.41 [notice to end tenancy: tenant's needs].
(2.2) The director may make an order specifying the date on which a tenancy ends only if satisfied, in the case of a tenant's application, that
(a) the tenant's health or safety is seriously jeopardized because of the landlord's inability to meet the tenant's needs, and
(b) it would be unreasonable, or unfair to the tenant, to wait for a notice to end the tenancy under section 57.41 [notice to end tenancy: tenant's needs] to take effect. , and
(c) in subsection (3) by striking out "landlord to give the tenant a notice" and substituting "landlord or tenant, as applicable, to give notice".
79 The following section is added:
56.1 (1) A landlord may make an application for dispute resolution requesting an order
(a) ending a tenancy because
(i) the rental unit is uninhabitable, or
(ii) the tenancy agreement is otherwise frustrated, and
(b) granting the landlord an order of possession of the rental unit.
(2) If the director is satisfied that a rental unit is uninhabitable or the tenancy agreement is otherwise frustrated, the director may make an order
(a) deeming the tenancy agreement ended on the date the director considers that performance of the tenancy agreement became impossible, and
(b) specifying the effective date of the order of possession.
80 The following Part is added:
Part 4.1 -- Assisted or Supported Living Tenancies
57.1 In this Part:
"hospitality services" means the services defined as hospitality services in the Community Care and Assisted Living Act, other than housekeeping services;
"personal care services" has the same meaning as "prescribed services" under the Community Care and Assisted Living Act;
"rent" does not include money paid or agreed to be paid, or value or a right given or agreed to be given, by or on behalf of a tenant to a landlord in return for hospitality services or personal care services.
57.11 (1) Except as specifically provided in this Part, this Act applies to assisted or supported living residences, assisted or supported living units and tenancy agreements in relation to assisted or supported living units.
(2) This Part applies to a tenancy agreement and a service agreement in relation to an assisted or supported living unit whether entered into before or after the date this Part comes into force.
(3) Section 34 (2) does not apply to assisted or supported living residences or assisted or supported living units.
57.2 (1) The landlord and tenant of an assisted or supported living unit must enter into an agreement, in addition to the tenancy agreement, setting out the following:
(a) the agreed terms and conditions in respect of the hospitality services and personal care services provided under the tenancy agreement, including without limiting this,
(i) the nature and extent of hospitality services and personal care services provided under the service agreement to each occupant of the assisted or supported living unit,
(ii) the amount payable for each hospitality service and personal care service for a specified period, and, if the amount varies by the number of occupants of an assisted or supported living unit, the amount by which it varies,
(iii) the day in the month, or in the other period on which the tenancy is based, on which amounts payable under subparagraph (ii) are due,
(iv) the landlord's rights of entry for purposes of providing hospitality services or personal care services,
(v) if the occupants of an assisted or supported living unit include a person who does not require any hospitality services or personal care services, whether, and the extent to which, that person, or a guest, is required to use or pay for hospitality services and personal care services, and
(vi) if there is a separate rental unit in the residential property, all or a part of which consists of the assisted or supported living residence, reserved for guests of tenants, the terms on which the tenant's guest may use the unit;
(b) if part of the property of which the assisted or supported living residence is a part is used for a purpose other than as residential property, the uses of that part.
(2) If a tenancy agreement in relation to an assisted or supported living unit ends under this Act, any service agreement associated with the tenancy also ends.
(3) The following provisions of this Act apply in relation to a service agreement as if it were a tenancy agreement:
(a) section 5 [this Act cannot be avoided];
(b) section 6 (1) and (3) [enforcing rights and obligations of landlords and tenants];
(c) section 7 (1) [liability for not complying with Act or tenancy agreement];
(d) section 13 (3) [requirements for a tenancy agreement];
(e) section 22 [acceleration term prohibited];
(f) section 26 (2), (3) and (4) [rules about payment and non-payment of rent];
(g) section 47 (1) (b) [landlord's notice: cause];
(h) section 91 [common law applies].
57.21 Unless a tenant otherwise agrees in writing, a landlord must not collect an increase in the amount payable for a hospitality service or a personal care service unless the landlord has given the tenant notice of the amount of the increase not less than 3 months before its effective date.
57.3 (1) Subject to this section, except as otherwise agreed in writing between a landlord and tenant of an assisted or supported living unit, section 27 applies in relation to the termination or restriction of hospitality services or personal care services.
(2) For the purpose of subsection (1),
(a) the notice period in section 27 (2) (a) is 60 days, and
(b) the reference in section 27 (2) (b) to "rent" must be read as a reference to the amount payable under the service agreement for the hospitality service or personal care service, as applicable.
57.31 Despite sections 28 (c) and 29 (1), a landlord of an assisted or supported living unit may enter the unit, or authorize a person to enter the unit,
(a) in accordance with the service agreement, for purposes of and as necessary for providing hospitality services and personal care services, or
(b) if an emergency exists and the entry is necessary to protect a tenant's health or safety.
57.4 In determining a tenant's obligations under section 32 (2) to (4), a landlord and the director must consider the physical condition and other relevant circumstances of a tenant of an assisted or supported living unit in deciding if damage is reasonable wear and tear.
57.41 (1) Subject to section 57.5 [tenant may end tenancy early following notice under Part], a landlord may end the tenancy of an assisted or supported living unit by giving notice to end the tenancy if one or both of the following applies:
(a) the tenant starts requiring hospitality services or personal care services that are not provided by the landlord;
(b) the tenant's behaviour seriously jeopardizes the tenant's health or safety.
(2) A tenant may end a fixed term tenancy of an assisted or supported living unit by giving notice to end the tenancy if the tenant starts requiring hospitality services or personal care services not provided by the landlord.
(3) A notice under subsection (1) or (2) must end the tenancy on a date that is
(a) not earlier than 3 months after the date the notice is received, and
(b) the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.
(4) A notice under this section must comply with section 52.
(5) A tenant or a landlord may dispute a notice under this section by making an application for dispute resolution within 30 days after the date the tenant or landlord receives the notice.
(6) If a tenant who has received a notice under this section does not make an application for dispute resolution in accordance with subsection (5), the tenant
(a) is conclusively presumed to have accepted that the tenancy ends on the effective date of the notice, and
(b) must vacate the assisted or supported living unit by that date.
57.5 Section 50 applies in relation to a tenant who has received notice under this Part to end a tenancy.
57.51 (1) If there is a dispute between the tenant and landlord of an assisted or supported living unit in relation to the tenancy agreement or service agreement, whether or not an application for dispute resolution has been made in the dispute, the tenant or landlord may request the director's assistance in resolving the dispute informally.
(2) For the purposes of informally resolving a dispute referred to in subsection (1), the director may use any process agreed to by the landlord and tenant.
(3) Part 5 [Resolving Disputes] applies in relation to a dispute between a landlord and tenant in respect of a service agreement as if the service agreement were a tenancy agreement.
(4) Despite section 66 (3) [director's orders: changing time limits], if the director attempts to assist a tenant and landlord to resolve a dispute before an application for dispute resolution has been made, on receipt of an application for dispute resolution in relation to the dispute, the director may extend the time under section 60 (1) for making the application.
57.6 (1) The resolution under section 57.51 of a dispute may be recorded as a decision or order of the director or as an agreement between the parties.
(2) An agreement referred to in subsection (1) is enforceable as a decision or order of the director.
57.61 If there is a conflict between the application of a provision of this Act and the application of section 26 (3) of the Community Care and Assisted Living Act, section 26 (3) of the Community Care and Assisted Living Act prevails.
81 The heading to Division 1 of Part 5 is repealed and the following substituted:
Division 1 -- Dispute Resolution Proceedings .
82 Section 58 is amended
(a) in subsection (1) by striking out everything before paragraph (a) and substituting "Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a dispute with the person's landlord or tenant in respect of any of the following:",
(b) by repealing subsection (2) and substituting the following:
(2) Except as provided in subsection (4), if the director receives an application under subsection (1), the director must determine the dispute unless
(a) the claim is for an amount that is more than the monetary limit for claims under the Small Claims Act,
(b) the application was not made within the applicable period specified under this Act, or
(c) the dispute is linked substantially to a matter that is before the Supreme Court. ,
(c) in subsection (3) by striking out "submitted to arbitration" and substituting "submitted for determination by the director", and
(d) in subsection (5) by striking out "an arbitration under this Act" and substituting "a dispute resolution proceeding".
83 Section 59 is amended
(a) by repealing subsection (1),
(b) in subsection (2) by striking out "An application for arbitration" and substituting "An application for dispute resolution",
(c) in subsection (2) (a) by striking out "the approved form," and substituting "the applicable approved form,",
(d) in subsection (2) (b) by striking out "of the arbitration," and substituting "of the dispute resolution proceedings,",
(e) by repealing subsection (3) and substituting the following:
(3) Except for an application referred to in subsection (6), a person who makes an application for dispute resolution must give a copy of the application to the other party within 3 days of making it, or within a different period specified by the director. ,
(f) in subsection (5) by striking out "an application for arbitration" and substituting "an application for dispute resolution",
(g) by repealing subsection (5) (a) and substituting the following:
(a) in the director's opinion, the application does not disclose a dispute that may be determined under this Part, , and
(h) in subsection (6) by striking out "may apply to an arbitrator, without notice to any other party, for" and substituting "may make an application for dispute resolution, without notice to any other party, requesting".
84 Section 60 is amended
(a) in subsection (1) by striking out "by which an application for arbitration must be filed, it must be filed" and substituting "by which an application for dispute resolution must be made, it must be made",
(b) in subsection (2) by striking out "if an application for arbitration is not filed" and substituting "if an application for dispute resolution is not made", and
(c) by repealing subsection (3) and substituting the following:
(3) If an application for dispute resolution is made by a landlord or tenant within the applicable limitation period under this Act, the other party to the dispute may make an application for dispute resolution in respect of a different dispute between the same parties after the applicable limitation period but before the dispute resolution proceeding in respect of the first application is concluded.
85 Section 61 is repealed and the following substituted:
61 If an application for dispute resolution is properly completed and is accepted by the director, the director must set the matter down for a hearing and,
(a) if the hearing is to be oral, specify the date, time and place of the hearing, and
(b) if the hearing is to be in writing, specify when written submissions are due.
86 Section 62 is amended
(a) in subsection (1) by striking out "to arbitrate" and substituting "to determine",
(b) by repealing subsection (1) (a) and substituting the following:
(a) disputes in relation to which the director has accepted an application for dispute resolution, and ,
(c) by repealing subsection (4) and substituting the following:
(4) The director may dismiss all or part of an application for dispute resolution if
(a) there are no reasonable grounds for the application or part,
(b) the application or part does not disclose a dispute that may be determined under this Part, or
(c) the application or part is frivolous or an abuse of the dispute resolution process. , and
(d) by repealing subsection (5).
87 Section 63 (2) is amended by striking out "during arbitration proceedings," and substituting "during dispute resolution proceedings,".
88 Section 64 is amended
(a) by repealing subsection (1),
(b) in subsection (2) by striking out "other arbitration decisions under this Act." and substituting "other decisions under this Part.",
(c) by repealing subsection (3) (c) and substituting the following:
(c) amend an application for dispute resolution or permit an application for dispute resolution to be amended. , and
(d) by repealing subsection (4) and substituting the following:
(4) If, in the director's opinion, another tenant of a landlord who is a party to a dispute resolution proceeding will be or is likely to be materially affected by the determination of the dispute, the director may
(a) order that the other tenant be given notice of the proceeding, and
(b) provide that other tenant with an opportunity to be heard in the proceedings.
89 Sections 72 (1) and (2) and 79 (1) and (7) are amended by striking out "party to an arbitration" and substituting "party to a dispute resolution proceeding".
90 Section 73 is amended
(a) in subsections (1) and (2) by striking out "applications for arbitration" and substituting "applications for dispute resolution",
(b) in subsection (1) by striking out "schedule the arbitrations to be heard by a single arbitrator at the same time." and substituting "hear the disputes at the same time.", and
(c) in subsection (2) by striking out "schedule the arbitrations to be heard by a single arbitrator." and substituting "hear the disputes together."
91 Section 74 is amended
(a) in subsection (1) by striking out "an arbitration hearing" and substituting "a hearing under this Division", and
(b) in subsection (4) by striking out "party to an arbitration" and substituting "party to a dispute resolution proceeding".
92 Section 75 (b) is amended by striking out "the arbitration." and substituting "the dispute resolution proceeding."
93 Section 76 (1) is amended
(a) by striking out "arbitrator's own initiative," and substituting "director's own initiative,",
(b) in paragraph (a) by striking out "an arbitration hearing or proceeding" and substituting "a hearing under this Division", and
(c) in paragraph (b) by striking out "subject matter of the arbitration." and substituting "subject matter of the dispute."
94 Section 77 (2) is amended by striking out "in an arbitration," and substituting "in a dispute resolution proceeding,".
95 Section 78 (1.1) (a) is amended by striking out "arbitrator's own initiative," and substituting "director's own initiative,".
96 Section 78.1 is repealed and the following substituted:
78.1 Sections 1, 44, 48, 56 to 58 and 61 of the Administrative Tribunals Act apply to the director as if the director were a tribunal and to dispute resolution proceedings under Division 1 of this Part and reviews under Division 2 of this Part.
97 Section 79 is amended
(a) in subsections (1) and (2) (c) by striking out "the arbitrator's decision or order" and substituting "the director's decision or order",
(b) by repealing subsection (6), and
(c) in subsection (7) by striking out "the arbitration." and substituting "the proceedings."
98 Sections 79 (3) and (5), 80 and 81 (1) are amended by striking out "an arbitrator's decision or order" and substituting "a decision or order of the director".
99 Section 80 (a) (iii) is amended by striking out "or 56 [landlord's application for order ending tenancy early];" and substituting ", 56 [application for order ending tenancy early] or 56.1 [order of possession: tenancy frustrated];".
100 Section 81 is amended
(a) in subsection (1) by striking out "the arbitrator designated to conduct the review may" and substituting "the director may", and
(b) in subsection (3) by striking out "The arbitrator designated to review a decision or an order may order that the decision or order be suspended," and substituting "The director may order that a decision or order in relation to which a review has been requested be suspended,".
101 Section 82 is amended by repealing subsections (1) and (2) and substituting the following:
(1) Unless the director dismisses or refuses to consider an application for a review under section 81, the director must review the decision or order.
(2) The director may conduct a review
(a) based solely on the record of the original dispute resolution proceeding and the written submissions of the parties, if any,
(b) by reconvening the original hearing, or
(c) by holding a new hearing.
102 Section 83 is repealed.
103 The heading to Division 3 of Part 5 is amended by striking out "Arbitration" and substituting "Director's".
104 Section 84 (1) (a) is amended by striking out "the arbitrator's decision or order" and substituting "the director's decision or order".
105 Section 84.1 is amended
(a) in subsection (1) by striking out "an arbitration proceeding under Division 1 of this Part or a review under Division 2 of this Part" and substituting "a dispute resolution proceeding or in a review under Division 2 of this Part", and
(b) in subsection (2) by striking out "under this Act".
106 Section 85 (2) (a) is amended by striking out "the arbitrator's decision or order" and substituting "the director's decision or order".
107 Division 4 of Part 5 is repealed.
108 Section 89 is amended
(a) in subsection (1) by striking out everything before "when required to be given" and substituting "An application for dispute resolution or a decision of the director to proceed with a review under Division 2 of Part 5,",
(b) in subsection (2) striking out "or 56 [landlord's application for order ending tenancy early]" and substituting ", 56 [application for order ending tenancy early] or 56.1 [order of possession: tenancy frustrated]", and
(c) by adding the following subsection:
(3) A notice under section 94.21 [notice of administrative penalty] must be given in a manner referred to in subsection (1).
109 Part 6 is amended by adding the following division:
Division 2.1 -- Administrative Penalties
94.1 (1) Subject to the regulations, the director may order a person to pay a monetary penalty if the director is satisfied on a balance of probabilities that the person has
(a) contravened a provision of this Act or the regulations, or
(b) failed to comply with a decision or order of the director.
(2) Before the director imposes an administrative penalty on a person, the director must
(a) give the person an opportunity to be heard, and
(b) consider all the following:
(i) previous enforcement actions for contraventions of a similar nature by the person;
(ii) the gravity and magnitude of the contravention;
(iii) the extent of the harm to others resulting from the contravention;
(iv) whether the contravention was repeated or continuous;
(v) whether the contravention was deliberate;
(vi) any economic benefit derived by the person from the contravention;
(vii) the person's efforts to correct the contravention.
(3) A penalty imposed under this section must be paid within the prescribed time.
(4) Instead of enforcing a penalty under subsection (1), the director, subject to the regulations, may enter into an agreement with the person who would otherwise be liable for the penalty.
(5) An agreement under subsection (4) may provide, in accordance with the regulations, for the reduction or cancellation of the penalty subject to the terms and conditions the director considers necessary or desirable.
(6) An agreement under subsection (4) must specify the time for performing the terms and conditions and, if the person fails to perform those terms and conditions by the date specified, the penalty ordered under subsection (1) is due and payable on the date of the failure.
(7) Neither the director's decision whether to enter into an agreement under subsection (4), nor the terms and conditions of such an agreement, may be the subject of an application for dispute resolution.
(8) If a corporation contravenes the Act or the regulations or fails to comply with a decision or order as described under subsection (1), an employee, officer, director or agent of the corporation who authorized, permitted or acquiesced in the contravention or failure is also liable under this section even though the corporation is liable for or pays a monetary penalty under this section.
94.11 (1) A person who has been charged with an offence under this Act may not be subject to an administrative penalty in respect of the circumstances that gave rise to the charge.
(2) If the director imposes an administrative penalty on or enters into an agreement with a person, a prosecution for an offence under this Act in respect of the contravention or failure may not be brought against the person.
94.2 (1) A monetary penalty imposed under section 94.1 (1) may not exceed $5 000.
(2) If a contravention or failure referred to in section 94.1 occurs over more than one day or continues for more than one day, separate monetary penalties, each not exceeding the maximum under subsection (1) of this section, may be imposed for each day the contravention or failure continues.
94.21 If the director imposes an administrative penalty on a person, the director must give to the person a notice specifying each of the following:
(a) the contravention or failure to which the penalty relates;
(b) the amount of the penalty;
(c) the date by which the penalty must be paid;
(d) the person's right to have the director reconsider the decision imposing the penalty.
94.3 (1) A person who receives a notice under section 94.21 may apply to the director for a review of the matters set out in the notice.
(2) Division 2 [Reviews of Decisions and Orders] of Part 5 applies to a review referred to in subsection (1).
94.31 (1) An administrative penalty imposed under this Part is a debt due to the government.
(2) If a person fails to pay an administrative penalty as required by a notice under section 94.21 and the time for requesting a review under section 94.3 has expired, the director may file a certificate in a court that has jurisdiction and, upon filing, the certificate has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the court with which it is filed.
(3) A certificate under subsection (2) must be in the approved form, be signed by the director and set out
(a) the name of the person who is liable for the penalty,
(b) the contravention or failure in relation to which the penalty is imposed, and
(c) the amount of the penalty.
110 Section 95 is amended
(a) in subsection (1) by renumbering paragraph (a) as paragraph (a.1),
(b) in subsection (1) by adding the following paragraphs:
(a) section 13 (1), (2) or (3) [requirements for tenancy agreements];
(n) section 57.21 [increasing the cost of hospitality services or personal care services]. , and
(c) by adding the following subsection:
(5.1) A person who fails to enter into a service agreement as required under this Act or who fails to comply with the terms of a service agreement commits an offence and is liable on conviction to a fine of not more than $5 000.
111 The following section is added:
96.1 (1) The director may conduct investigations to ensure compliance with this Act and the regulations whether or not the director has accepted an application for dispute resolution in relation to the matter.
(2) If an investigation is conducted, the director must make reasonable efforts to give the person under investigation an opportunity to respond.
112 Section 97 (2) is amended
(a) by repealing paragraph (j) and substituting the following:
(j) respecting matters related to reviews under Division 2 of Part 5; , and
(b) by adding the following paragraphs:
(p.1) respecting administrative penalties, including, without limiting this,
(i) establishing procedures for providing an opportunity to be heard for the purposes of section 94.1 (2) (a), which need not entail an oral hearing,
(ii) prescribing consequences for failing to appear or provide submissions, as applicable, on an opportunity prescribed under subparagraph (i), which may include, but are not limited to, proceeding in the absence of the person who fails to appear or without their submission, as applicable,
(iii) prescribing time limits for paying administrative penalties,
(iv) the matters that must be considered by the director in establishing a penalty in a particular case,
(v) prescribing a limitation period for imposing an administrative penalty and evidentiary matters in relation to that period,
(vi) respecting agreements, including prescribing terms and conditions, that must be included in an agreement under section 94.1 (4), and
(vii) establishing consequences for failing to pay an administrative penalty which may include, but are not limited to, imposing additional penalties;
(p.2) respecting service agreements, including, without limiting this, prescribing terms or conditions of a service agreement or additional matters that must be dealt with in a service agreement; .
113 Sections 99, 101 and 102 are repealed.
114 The following sections are added:
104.1 (1) Effective on the date this section comes into force, each arbitrator appointed under section 86, as it read immediately before its repeal, is deemed to have been retained under section 9 (2) for a term ending on the date the appointment under section 86 would otherwise have terminated.
(2) Despite section 9.1 (1), a person described in subsection (1) has the powers and duties of the director necessary for the purposes of determining a dispute under Division 1 of Part 5, or a review under Division 2 of Part 5, delegated to the person under section 9.1 (1).
(3) Subsections (1) and (2) must not be construed as
(a) a termination for the purposes of section 14.9 (3) of the Public Sector Employers Act, or
(b) a breach of the service contract related to the appointment of a person to whom subsection (1) applies.
(4) An order of an arbitrator made before the date this section comes into force is deemed to be an order of the director.
104.2 (1) Despite section 57.11 (2), the landlord and tenant of an agreement in relation to an assisted or supported living tenancy that is in effect on the date Part 4.1 comes into force need not comply with this Act until January 1, 2007 or a later date prescribed by regulation.
(2) Subsection (1) ceases to apply on and after the date the landlord and tenant agree in writing to comply with this Act.
Public Sector Employers Act
115 Section 14.9 (1) (c) of the Public Sector Employers Act, R.S.B.C. 1996, c. 384, is repealed.
Public Service Labour Relations Act
116 Section 1 (1) of the Public Service Labour Relations Act, R.S.B.C. 1996, c. 388, is amended in the definition of "employee" by adding the following paragraph:
(f.2) a person appointed under the Public Service Act to exercise the powers of or perform the duties of
(i) the director under Part 5 of the Residential Tenancy Act, or
(ii) the director under Part 6 of the Manufactured Home Park Tenancy Act; .
Strata Property Act
117 Section 175 (2) (a) and (b) of the Strata Property Act, S.B.C. 1998, c. 43, is repealed and the following substituted:
(a) Part 5 of the Residential Tenancy Act applies to the dispute, or
(b) Part 5 of the Residential Tenancy Act does not apply to the dispute and all parties have agreed that the Commercial Arbitration Act will apply.
118 This Act comes into force by regulation of the Lieutenant Governor in Council.
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