B.C. landlords take former tenants to Supreme Court to fight $17K eviction payment | Daily Hive

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A pair of landlords went to B.C. Supreme Court in an attempt to overturn a Residential Tenancy Branch (RTB) arbitrator’s decision that would cost them over $17,000 for 12 months of compensation to two former renters.

Duc Lu and Phuong Trinh filed a petition for judicial review, asking the B.C. Supreme Court to set aside the earlier decision due to it being “patently unreasonable.”

The complex case began when Lori Anne Marchand and Brandon McNaueal rented a Vernon, B.C. home from Lu and Trinh starting in June 2017. The rent was $1,350 monthly, and the security deposit was $600.

After over five years of tenancy, the tenants received a two-month notice to end tenancy for the landlord’s use of the property in June 2022.

Vernon, B.C. (Pawel Serafin/Shutterstock)

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Marchand and McNaueal were told that one of the landlord’s mothers, Ly Thi Ho, would be moving into the rental home. After they disputed the notice, the tenants reached a settlement agreement with Lu and Trinh with the help of an arbitrator.

Part of the agreement included the tenants vacating the home on New Year’s Eve 2022. However, Ho did not move into the rental home until almost nine months later, in the summer of 2023.

The tenants started a dispute resolution proceeding in August, seeking compensation based on the Residential Tenancy Act (RTA) and arguing that the landlord’s family member failed to occupy the rental home within a reasonable period after the effective date of the notice.

The BC Supreme Court decision cited the Residential Tenancy Act, which states that if a landlord is ending the tenancy to occupy the vacated unit, they “must pay the tenant 12 times the monthly rent if the reason for ending the tenancy has not been completed within a reasonable time after the effective date of the notice, or the rental unit is not used for the stated reason for at least six months.

The decision says that the landlord could be excused from this if there are “extenuating circumstances that prevent the landlord from accomplishing this.”

While Lu and Trinh affirmed that Ho did not move in until late August 2023, they counter-argued that the tenants had damaged the rental, which needed $140,000 of extensive repairs and cleaning before she could move in.

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The landlords stated that the home also needed painting, which took an extended period of time due to Lu only being able to paint on evenings and weekends. They also stated that Ho was living in Vancouver during the renovations to attend doctor appointments for her ongoing health conditions.

The RTB arbitrator ruled in January 2024 in favour of the tenants, stating that the landlords “provided insufficient evidence that tenant caused $140,000.00 worth of damage to the rental unit.”

“I find it more likely that the Landlord took the opportunity created by having to do some repairs, to spend five months doing major renovations. I further find the landlord taking another two months to do painting to be excessive, even if working only evenings and weekends. Neither the renovations nor the painting meet the standards required to be considered extenuating circumstances.

“The alleged health issues of the Landlord’s mother was supported by a list of medical appointments. However, I find the argument that she needed to be in Vancouver for medical attention because her doctor there spoke Vietnamese to not be an extenuating circumstance as, if Vernon does not have such a doctor, family members in Vernon would have been able to [provide] support and act as interpreters.”

The RTB arbitrator ordered the Lu and Trinh to pay Marchand and McNaueal $17,500, which represents 12 times the monthly rent due during the tenancy, their damage deposit, and the filing fee.

However, the landlords took their case to the B.C. Supreme Court, asking for a judicial review based on “patent unreasonableness” and that ” they are not the type of bad actors that the legislation is intended to penalize.”

Justice Wilson wrote in his decision that the arbitrator’s evidence analysis must be considered in relation to RTA statutory requirements.

“It is clear the arbitrator found that Ms. Ho did not move into the rental home within a reasonable period of time,” wrote Wilson. “It is also clear the arbitrator did not consider the evidence of the renovations or medical appointments to meet the standards required to be extenuating circumstances.

The B.C. Supreme Court ruling also stated that the onus was on the Lu and Trinh to provide sufficient evidence to support their claims.

“This is not a case where the arbitrator failed to appreciate the landlords’ evidence or misapprehended that evidence. Rather, the arbitrator did not accept the Landlords’ evidence and arguments… It is not the role of the court on a judicial review to reweigh the evidence before the arbitrator. The arbitrator’s findings were grounded in the evidence, and as such, cannot be said to be patently unreasonable.”

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

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