B.C. landlords ordered to pay year's rent to tenant after social media posts surface

Two Metro Vancouver landlords’ attempt to overturn a Residential Tenancy Branch (RTB) arbitrator’s decision in the B.C. Supreme Court has failed, leaving them owing a former tenant a huge sum of money.

Kristyna and Neil Bennett filed a petition for judicial review, asking the B.C. Supreme Court to set aside the earlier RTB decision made in December 2023 in a dispute resolution with Andrea Seto.

According to the Reasons for Judgment, the Bennetts claimed that the original decision by the arbitrator should be set aside because it was procedurally unfair, patently unreasonable, and rooted in bias.

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The tenancy and eviction

Seto lived at the Bennetts’ Coquitlam residential property from approximately February 2019 to Feb. 28, 2023, with a monthly rent of $1,000.

The landlords served their tenant a two-month notice in December 2022, with plans for Elia Zaurrini, Ms. Bennett’s mother, to move into the suite.

Zaurrini is also identified as being part-owner of the property, but doesn’t contribute to the registered mortgage.

According to court docs, the Bennetts and Zaurrini testified and presented evidence at the RTB hearing that the latter moved into the unit in March 2023 and resided there until August or September of that year. Six months after Seto’s termination would be Aug. 31, 2023.

The Bennetts submitted rent cheques and e-transfer receipts, photographs of a vehicle parked at the property, and a written letter from Zaurrini’s social worker and clinical counsellor, Ms. F, among other pieces of evidence that Zaurrini had resided there throughout August.

Social media messages presented as proof

However, Seto presented evidence to the arbitrator that she claimed proved Zaurrini had moved out earlier, including Facebook Marketplace listings posted on or before July 26, 2023, stating that the suite was for rent.

Facebook messages from Ms. Bennett to people who responded to the listing state that the unit was “empty now” and “available.” The RTB also reviewed screenshots of Ms. Bennett’s posts to a B.C. Landlords Facebook group, where she wrote, “My elderly mom moved in until her unit was built. Moved out end of July. I now found a tenant for September 1st.”

Justice Douglas also highlighted correspondence between the landlord and tenant.

“Ms. Seto refused to accept what she considered to be an illegal increase in rent for the Unit,” said the court documents. “Ms. Bennett wrote to Ms. Seto, ‘The going rate for rentals in this area is $1800 – $2200. You are currently paying $1000. We have kindly asked you to go over the 1% to keep you here as we still feel this is saving you quite a bit per month. The unfortunate alternative is to have my mom (owner) move in …’

Ms. Bennett told the arbitrator that she meant to say the unit could be made empty in her Facebook messages, and that she worded her Facebook post to the B.C. Landlords group “wrong.”

When the arbitrator asked her why the landlords had no proof of Zaurrini’s address at the Coquitlam residential property, such as mail, bank statements or a driver’s license, she replied that it was because her mother’s move into it was “not permanent.”

The RTB arbitrator’s written reasons, released in December 2023, found that the landlords had not met the onus of proving that Zaurrini had occupied the unit for at least six months after Seto vacated it, thereby failing to accomplish the stated purpose in the notice to end the tenancy. Seto was awarded $12,000, which was equivalent to 12 months’ rent.

B.C. Supreme Court’s review of the case

Justice Douglas ruled that while Ms. F recommended that Zaurrini move into the vacated suite, it didn’t mean that she did so.

According to the Reasons for Judgement, “Ms. F stated belief about where Ms. Zaurrini was residing at the time of her letter is, on Ms. Bennett’s own evidence, based on information from Ms. Bennett, a witness whose overall evidence the arbitrator found to be contradictory and not credible.

“I am unable to conclude that this ground of review supports a finding that the RTB decision is patently unreasonable.”

Court documents revealed that the judge was unable to find that the arbitrator misapprehended Ms. Bennett’s evidence regarding the new rental date for the unit, or was patently unreasonable in reviewing the Facebook messages regarding the suite’s listing for rent.

The landlords also submitted that the RTB hearing was procedurally unfair because they didn’t receive two pages of the RTB record before the hearing, the arbitrator failed to adjourn the hearing to allow them to call their neighbour, Mr. Krempeaux, to testify, and Ms. Bennett wasn’t allowed to cross-examine Seto.

The ruling

Justice Douglas ruled that the court did not agree that the petitioners were denied procedural fairness.

“Ms. Bennett was specifically asked if she had received all of Ms. Seto’s response evidence. Ms. Bennett responded, “… I believe that I have it all, yes”. She also confirmed that she had had enough time to review this evidence.

“It was open to the arbitrator to conclude that Mr. Krempeaux’s evidence was not determinative of the central issue before the RTB. By Ms. Bennett’s own admission, Mr. Krempeaux had never entered the Unit. The arbitrator therefore found Mr. Krempeaux was not in a position to confirm that Ms. Zaurrini had ever resided there.

“(And) there is no indication in the transcript of this informal hearing that Ms. Bennett requested an opportunity to ask Ms. Seto any questions. It is unclear what, if any, questions Ms. Bennett would have asked Ms. Seto, if she had cross-examined Ms. Seto, or how Ms. Seto’s answers to any such questions would have materially altered the outcome. 

Justice Douglas concluded that the landlords did not establish that the arbitrator was biased against them. The B.C. Supreme Court upheld the arbitrator’s decision, dismissed the petition, and awarded costs to Seto.

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