In a rental agreement, both landlords and tenants have certain rights and obligations. In deciding whether a court application is appropriate, it is important to gain a good understanding of your obligations as well as the remedies available to you. CPLEA’s Laws for Landlords and Tenants in Alberta and the provincial Service Alberta: Landlords & Tenants are two resources where you can obtain information on your rights and obligations.
If you need to seek a remedy under Residential Tenancies Act or the Mobile Home Site Tenancies Act such as possession of a property, rental arrears, damage, rent abatement, or a writ of possession there are some different options available to you:
Landlord and Tenant Advisory Boards / Tenant Support Services
Canvass your local Tenant Support Services as there may be some type of non-confrontational dispute resolution service available.
Residential Tenancy Dispute Resolution Service
The Residential Tenancy Dispute Resolution Service offers an alternative to the court process and is designed so landlords and tenants may resolve disputes more quickly, with less formality than the court process and at a lower cost
Civil Division
You may also make an application in the Civil Division of Alberta Court of Justice. The following describes how to proceed with an application in Civil Division:
- What should I do first?
- Remedies under the Residential Tenancies Act
- How do I start my application?
- How do I file and serve?
- I’ve been served with a Notice of Application
- What happens at the hearing?
- What happens after the decision?
- Enforcing the decision
- Appeals
What should I do first?
If you have chosen to make a court application to the Alberta Court of Justice it is important that you read and become familiar with the Residential Tenancies Act or the Mobile Home Site Tenancies Act.
The Residential Tenancies Act and Mobile Home Sites Tenancies Act set out the types of remedies (solutions) that may be granted on an application and the facts you must prove to get a particular remedy.
Remedies under the Residential Tenancies Act
Landlord’s Remedies
Landlord’s remedies are outlined in section 26 of the Residential Tenancies Act (Mobile Home Site Tenancies Act section 30) and allow a landlord to apply for one or more of the following remedies:
- recovery of arrears of rent
- recovery of damages resulting from a breach of the tenancy agreement by the tenant
- recovery of for the use and occupation of the premises by an overholding tenant
- recovery of possession of the premises from an overholding tenant
- termination of the tenancy by reason of a substantial breach
The Residential Tenancies Act sections 30, 33, and 36 (Mobile Home Site Tenancies Act section 33)* allows a landlord to apply for an order:
Tenant’s Remedies
Tenant’s remedies are outlined in section 37 of the Residential Tenancies Act (Mobile Home Site Tenancies Act section 39) and allow a tenant to apply for one or more of the following remedies on a breach of the tenancy agreement or a contravention of the Act:
- Recovery of damages resulting from a breach or contravention of the tenancy agreement by the landlord.
- Abatement of rent where a breach by the landlord deprives a tenant of the benefit of the tenancy agreement.
- Compensation for the cost of performing the landlord’s obligations.
- Termination of the tenancy by reason of a breach if in the opinion of the court the breach is of such significance that the tenancy should be terminated.
How do I start my application?
To make an application under the Residential Tenancies Act or the Mobile Home Site Tenancies Act, you must:
You can get these forms from the court office or online in the Court Forms section. When you file the notice of application and supporting affidavit, you must also pay the prescribed filing fee.
If you wish to apply for a fee waiver because of financial hardship, the form is available online at Waiving a Filing Fee or at your local Alberta Court of Justice Office.
When you fill out the notice of application, leave the space for the date and time of the hearing blank. The clerk will fill it in when you file the notice of application and supporting affidavit. The hearing date inserted by the clerk will be the next available date for hearing applications at the particular Alberta Court of Justice location.
The supporting affidavit must set out all the facts you are going to rely on. Any relevant documentation (e.g. a copy of the lease agreement, copies of your statement of account setting out all charges, payments and other credits, and Notice to Vacate) must be attached as an exhibit to the supporting affidavit. The supporting affidavit must be sworn before a commissioner for oaths. A clerk is a commissioner for oaths.
A person with first-hand knowledge of the dispute should swear the affidavit in support. It is a serious criminal offence to swear a false affidavit.
Landlord’s Supporting Affidavit
If you, the landlord, are making an application under Residential Tenancies Act section 26 (Mobile Home Site Tenancies Act section 44), your supporting affidavit must contain the following information:
- If a claim is made for the recovery of arrears of rent, include the amount of rent in arrears and the time during which it has been in arrears.
- If a claim is made for the recovery of damages resulting from a breach of the tenancy agreement or a contravention of the Act, include the details of the breach or contravention, the calculation and the amount of damages claimed.
- If a claim is made for the recovery of compensation for the use and occupation of premises by an overholding tenant, include:
- the date of the expiration of the tenancy or, if the tenancy was terminated, the method of termination and the effective date of the termination;
- the reasons for the tenant’s failure to vacate the premises, to the extent known;
- the nature of the use and occupation by the overholding tenant, to the extent known;
- the rent payable under the tenancy agreement; and
- the amount of compensation claimed.
- If a claim is made for recovery of possession of the premises from an overholding tenant, include:
- the date of the expiration of the tenancy or, if the tenancy was terminated, the method of termination and the effective date of the termination;
- the reasons for the tenant’s failure to vacate the premises, to the extent known; and
- If a claim is made for the termination of the tenancy by reason of a substantial breach of the tenancy agreement, include the details of the breach and the requested termination date.
- If you, the landlord, are making an application under Residential Tenancies Act section 30, 33, or 36 (Mobile Home Site Tenancies Act section 33), the landlord’s supporting affidavit must contain the information set out in Residential Tenancies Act sections 30(4), 33(5), or 36(5) (Mobile Home Site Tenancies Act section 45).
- If you, the landlord, are making a claim for arrears of rent or for damages, and the tenant has already vacated or abandoned the premises, proceed through the civil claim process.
Tenant’s Supporting Affidavit
If you (the tenant) are making an application under the Residential Tenancies Act section 37(2) (Mobile Home Site Tenancies Act section 46), your supporting affidavit must include the following information:
- If a claim is made for the recovery of damages resulting from a breach of the residential tenancy agreement or a contravention of the Residential Tenancies Act, include:
- the details of the breach or contravention;
- the calculation; and
- the amount of damages claimed.
- If a claim is made for abatement of rent for reason of a breach of a residential tenancy agreement or a contravention of the Residential Tenancies Act, include:
- the rent payable under the tenancy agreement;
- the details of the breach or contravention;
- the benefit of the tenancy agreement that the tenant was deprived of; and
- the reason for and the amount of rent abatement claimed.
- If a claim is made for compensation for the cost of performing the landlord’s obligations, include:
- the rent payable under the tenancy agreement;
- the details of the breach of the residential tenancy agreement or of the contravention of the Residential Tenancies Act;
- the obligations performed on the landlord’s behalf; and
- the amount of compensation claimed.
- If a claim is made for termination of the tenancy by reason of a breach of the residential tenancy agreement or a contravention of the Residential Tenancies Act, include
- the details of the breach or contravention; and
- the requested termination date.
How do I file and serve?
Filing
First, you must file the notice of application and supporting affidavit in the court office. The application must be filed at the court office nearest to where the premises are located.
When you file the notice of application and supporting affidavit, you must also pay the prescribed filing fee.
Serving
After the documents are filed at the court, you must serve them on the other person. You can serve the documents by handing them to the other person, or you can send them by registered mail (which requires the recipient to sign that they have received the documents). Keep your postal receipt and also contact the post office to get either:
If you are serving documents by registered mail, keep in mind that the three-day period is measured from when the other party receives the documents, not from when the documents are put in the mail.
Swearing/affirming the affidavit of service
The person who served the notice of application and supporting affidavit must swear/affirm the affidavit of service.
Take the affidavit of service to be sworn/affirmed to a commissioner for oaths. You can do this at any court office.
If you served the documents on an individual by registered mail, give the commissioner the postal receipt and the acknowledgment of receipt certificate or delivery confirmation. The commissioner will attach and mark the receipts and documents as exhibits.
If you served the documents on a corporation by registered mail, give the commissioner for oaths the postal receipt to attach to the affidavit of service.
Because you do not need a signature when registered mail is delivered to a corporation, the documents are considered served:
- 7 days from the date of mailing to an address in Alberta; or
- 14 days if mailed to an address in Canada, outside of Alberta.
I’ve been served with a Notice of Application
What can I do if I have been served with a Notice of Application?
If you want to contest the application:
- File an affidavit in reply stating the facts on which you will rely in contesting the application. The affidavit must be commissioned before a Commissioner for Oaths. You may attend a court office and have the clerk commission your affidavit.
- Provide a copy of the affidavit in reply to the landlord before the hearing.
- Attend the hearing.
What happens at the hearing?
The Process
A Justice of the Alberta Court of Justice will hear the application on the date set out in the notice of application. Arrive at the courthouse fifteen minutes before the time set for the hearing and go to the assigned courtroom as indicated on your documents. When your case is called, you (and the other person, if present) will have a chance to make brief statements to the Justice. However, evidence in this type of hearing is generally given by affidavit, rather than by oral testimony, which is why it is important to set out all the relevant facts in your affidavit.
The Decision
The Justice will usually make a decision based on the submissions and affidavit evidence presented at the hearing. However, the Justice might decide to direct a "trial of an issue" if the facts are too complicated or contentious to be decided on the basis of affidavit evidence in the brief time available at the hearing. If the Justice directs the trial of an issue, you will be informed of the date of the trial.
What happens after the decision?
The order
If you are the applicant and the Justice decides in your favour, the decision will be made into a written order. If you have a lawyer or an agent, they will have prepared an order for the Justice to sign. If you do not have a lawyer or an agent, the court office will prepare the written order for you after the hearing.
Filing the order
You must file your Court of Justice order in Court of King's Bench before it takes effect. The procedures for filing the order in Court of King's Bench vary from court to court. Court staff will tell you about the right procedure when they give you the written order.
Serving the order
Once you have filed the order in Court of King's Bench, you must serve it on the other party in the manner provided in section 57 Residential Tenancies Act (section 60 of the Mobile Home Site Tenancies Act) or in the manner directed by the court in the order.
Enforcing the Decision
Money
This kind of judgment requires the other person to pay money to you, and the order may be enforced in the same manner as any judgment for money. Please see Part II of Commencing a Claim in the Alberta Court of Justice Civil Division and Getting and Enforcing your Judgment in Alberta for information on enforcing money judgments.
Possession
This kind of judgment requires the tenant to give you possession of the premises by a certain date or within a certain number of days after the order was served. In most cases, the tenant will comply with the order.
If the court grants a conditional order, the order will contain a clause setting out the number of days after the default the landlord must serve the Notice of Default on the tenant. As well, the court will set the number of hours the tenant has to vacate the premises.
A Notice of Default form can be obtained from the Alberta Courts website or from a civil court office.
If the tenant does not vacate the premises the landlord will make arrangements and pay a civil enforcement agency to enforce the order.
Appeals
You can appeal the Justice's decision to the Court of King's Bench. The fee for beginning an appeal under the Residential Tenancies Act is much higher than the fee for beginning an application in the Court of Justice.
How can I begin (commence) an appeal?
The Residential Tenancies Act section 53(1) (Mobile Home Site Tenancies Act section 58) sets out the steps for appealing a Court of Justice order.
You must commence the appeal within 30 days after the order is served on you.
You commence the appeal by filing an originating notice in the Court of King's Bench and pay the prescribed fee. For more information, contact the Court of King's Bench.
You must also file in the Court of King's Bench copies of the order being appealed and all notices, affidavits, and any other documents that were filed in the Alberta Court of Justice.
You must serve all these documents (originating notice, order, notices, affidavits, and any other filed documents) on the other person at least three business days before the hearing date that is set out in the originating notice.
Commencing an appeal does not stop the order from taking effect, except when directed by Court of King's Bench.