Eviction fight caused by landlord confusion ends up in B.C. Supreme Court
A years-long dispute involving a tenant, a landlord, and a “patently unreasonable” Residential Tenancy Branch (RTB) decision made it all the way to the B.C. Supreme Court this month.
Andreas Schuld filed a petition for judicial review, asking the B.C. Supreme Court to set aside the arbitrator’s decision to dismiss his claim to a monetary order for compensation under the Residential Tenancy Act.
The complex case began when Schuld rented a Maple Ridge basement suite from his former landlord, Richard Li. After nearly five years of tenancy, Li issued a two-month notice to end tenancy in September 2022 with a move-out date of Dec. 1 of that year.
When Schuled moved out, his rent was $1,624.
At the RTB hearing, Schuld claimed that Li had failed to accomplish his stated purpose on the Notice to End Tenancy. Both the tenant and landlord produced conflicting versions of the notice, with each also accusing the other’s version as a forgery.
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“The version of the Notice adduced by the Tenant also had a box ticked indicating that the ‘close family member’ would be the ‘father or mother of the landlord or landlord’s spouse,'” explained the BC Supreme Court ruling. “The version of the Notice adduced by Mr. Li had a box ticked indicating that the ‘close family member’ would be the ‘the landlord or the landlord’s spouse.'”
While Li was the owner of the property’s title at the time the notice was issued, he told the RTB arbitrator that the property was transferred to his father on Nov. 1, 2022, when the mortgage was refinanced.
Schuld claimed that this caused the notice to be deficient because Li was no longer the landlord at the time of his moveout date.
The RTB arbitator’s decision denied his claim, stating that “Mr. Li had clearly communicated his intent to the Tenant that he and his spouse would occupy the Rental Unit,” and that he had met the burden of proof in showing he used the basement suite for at least six months.
A second arbitrator also dismissed Schuld’s application for reconsideration, writing that the “tenant has not sufficiently proven that the Adjudicator missed a key issue in deciding this matter.”
However, Justice M. Taylor of the B.C. Supreme Court disagreed, pointing out that “the failure of the arbitrator to address the question on the merits as to whether the transfer of title between Mr. Li and the Father impacted upon the validity of the notice” made the RTB’s decision “patently unreasonable.”
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The court highlighted a failure by the arbitrator to take relevant statutory requirements into account,
“The version of the Notice adduced by Mr. Li at the Hearing had a box ticked indicating that the ‘close family member’ who would occupy the rental unit would be the ‘the landlord or the landlord’s spouse. ‘ The Arbitrator should have addressed the significance of the fact that, at the time Mr. Li occupied the Rental Unit with his spouse, Mr. Li was not ‘the landlord or the landlord’s spouse’… under the statutory definition, it was the Father who was ‘the landlord.'”
Justice Taylor also pointed out other relevant statutory requirements that the RTB arbitrator failed to consider, including the fact that neither Li nor his father notified Schuld of the property title transfer during the notice window.
“The arbitrator never ‘considered’ the title transfer in the true sense of addressing the legal implications of that title transfer on the merits,” said the B.C. Supreme Court decision. “From the point of view of fairness, the failure of the Arbitrator to address this argument at first instance meant that the Tenant was not, in fact, seeking on reconsideration to ‘reargue’ his case for a second time because he was never given a fair opportunity to have his argument considered a first time.
“In the review decision, the adjudicator merely compounded the unfairness by refusing to consider his argument for a second time. All of this, in my view, reinforced the conclusion that the Decision was patently unreasonable and that the Review Decision also failed to address the issues I have identified on the merits.”
In the end, the judge set aside the RTB decision and review decision and ordered a new hearing at the tenancy branch to address and resolve the legal issues raised.