Neighbour provides crucial tip in B.C. Supreme Court eviction battle | Daily Hive

Neighbour provides crucial tip in $27K B.C. Supreme Court eviction battle

465 McPhee St., Kelowna (Google Maps)

A years-long dispute over an eviction worth $27,000 ended up in the province’s Supreme Court this month, and a neighbour provided a crucial tip in the case.

Jane Li filed a petition for judicial review in the B.C. Supreme Court in an attempt to overturn a Residential Tenancy Branch (RTB) arbitrator’s decision that would cost her 12 months of compensation to two former tenants.

Li asked the court to set aside the earlier decision or remit it back to the RTB for reconsideration because it was “patently unreasonable.”

Tenants receive notice

The case began when Tina and Scott MacLean rented a Kelowna, B.C. home at 122‑465 McPhee St. from Li starting in August 2020. By the summer of 2023, the monthly rent was $2,200.

Tina and Scott received a two-month notice to end tenancy effective June 30, 2023, which they disputed with the RTB. The administrative tribunal cancelled the notice, and the tenants were permitted to stay in the property.

Dustin Godfrey/Shutterstock

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Just a few months later, the MacLeans received a new Notice to End Tenancy for Landlord’s Use of Property. It stated that the tenancy was ending so that Li could occupy the rental unit.

While the MacLeans moved out by the required date of Feb. 16, 2024, they came to believe that their landlord had not occupied the unit. So they filed an application for compensation from Li.

In December 2024, an RTB arbitrator ruled that Li had not occupied the unit for the required period with no extenuating circumstances to explain why. The arbitrator granted the MacLeans a monetary order valued at $27,424, inclusive of the filing fee.

A review and a Supreme Court ruling

Li applied for a review by the RTB, claiming that she had new evidence. However, a different arbitrator found that the new evidence was all available during the original hearing, so the application was dismissed.

The case was then brought up before the B.C. Supreme Court, with Li’s counsel asking what the standard of review was and whether the original decision was patently unreasonable.

According to the B.C. Supreme Court decision, a discretionary decision is only patently unreasonable if it meets the criteria outlined in the Administrative Tribunals Act. This includes instances of discretion exercised arbitrarily or in bad faith, exercised for an improper purpose, based entirely or predominantly on irrelevant factors, or failing to take statutory requirements into account.

Justice Hewson’s decision also revealed that the MacLeans’ neighbour told them that Li said at the start of March 2024 that she was putting the property up for sale and leaving B.C. because she no longer wanted to be a landlord.

This contradicted Li’s evidence that she didn’t occupy the property because her medical practitioner advised that she return to Calgary for treatments.

“Based on the evidence before the arbitrator, those findings were capable of being made,” said Justice Hewson’s decision. “The finding that (Li) did not provide evidence that she was under a doctor’s care or require treatment could also have been made on the record before the arbitrator.

“The arbitrator’s finding that there were no ‘extenuating circumstances’ was not unreasonable. The factors relied on by the arbitrator were relevant, and the arbitrator did not fail to take any statutory requirements into account.”

465 McPhee St., Kelowna (Google Maps)

It also cited the Dec. 19, 2024, decision from the RTB arbitrator, which wrote that the “landlord, who bears the onus of proof, has not submitted sufficient evidence to support her testimony that she moved into the rental unit and occupied it for at least six months as required under the Act.”

“I find that the Landlord’s testimony regarding where she was living and when and why she was absent from the property under dispute throughout the six months following the end of the tenancy was inconsistent and contradictory and therefore lacks credibility.”

Li’s counsel also attempted to argue that the RTB arbitrator failed to define the term “extenuating circumstances.” However, the court said that the arbitrator is not required to define the term specifically to resolve the issue at hand.

The BC Supreme Court upheld the arbitrator’s decision and dismissed the landlord’s petition.

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