Case Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII)
Punitive damages are rarely awarded in residential tenancy disputes, but Wilderdijk-Streutker v Zhao is one of those rare cases. And although an award of punitive damages is very fact-dependent, there are some principles and rules of law which residential landlords and tenants who are contemplating claiming punitive damages should be aware of. They should also be aware that there are a few unsettled issues concerning the awarding of punitive damages in this context. Those unsettled issues are the focus of this post.
Provincial Court Jurisdiction to Award Punitive Damages
The ability of a Provincial Court judge to order punitive damages is not discussed in this case or others where punitive damages were claimed. Nevertheless, as Justice P.R. Jeffrey recently reminded us in Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII) at paras 40-41, the Provincial Court of Alberta possesses no inherent power; the only powers it has are those conferred upon it by statute (see also "Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act" commenting on that decision).
The Provincial Court Act, RSA 2000, c P-31, section 9.6(1)(c) lists three types of orders that a Provincial Court judge can make under the Residential Tenancies Act, but none of those three include any type of damages. tThe most likely source for the power to award punitive damages claimed by a tenant is section 37(1) of the Residential Tenancies Act which provides, with respect to damages, as follows: 37(1) If a landlord commits a breach of a residential tenancy agreement or contravenes this Act, the tenant may apply to a court for one or more of the following remedies:
(a) recovery of damages resulting from the breach or contravention... (emphasis added) That subsection specifies that the damages must be the result of a breach of a residential tenancy agreement or a contravention of the Residential Tenancies Act. That specification may be a problem for the award of punitive damages which, as we shall see, requires an actionable wrong. If there is an independent actionable wrong that allows punitive damages to be awarded, are those damages the result of a breach of a residential tenancy agreement or a contravention of the act? Or is it only compensatory damages that arise from such breaches? If the actionable wrong is "independent", can punitive damages be awarded under section 37(1)(a)?
The equivalent Residential Tenancies Act section in a case where the landlord claims...