Vancouver landlord takes $39K tenant eviction fight over 'occupancy' to Supreme Court

A Vancouver landlord took their attempt to overturn a Residential Tenancy Branch (RTB) arbitrator’s decision to the B.C. Supreme Court to try and avoid paying former tenants over $39,000.

Jianshuang Huang filed a petition for judicial review, asking the B.C. Supreme Court to set aside the earlier RTB decision made in September 2024 in the dispute resolution with Kevin Mathew Stroesser and Mona Lotfizadeh.

According to the Oral Reasons for Judgment, Huang claimed that the arbitrator misapprehended the evidence, imposed an “excessively high” burden of evidence on her, and failed to provide adequate reasons for the decision against her.

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Stroesser and Lotfizadeh lived in the unit at 1703-1005 Beach Ave. in Vancouver for over two years before they received a two-month notice to end tenancy for the landlord’s use in May 2023. Their approximate monthly rent was $3,245.

Huang bought the unit in August of that year, with Stroesser and Lotfizadeh vacating at the end of July. However, a dispute arose over what occurred afterward.

“The petitioner asserts that she moved into the Unit with her daughter on Aug. 1, 2023,” said the B.C. Supreme Court decision by Justice Hughes. “The respondents say that that was not the case. The Unit remained vacant and was, at one point, listed for rent online with an availability date of Feb. 1, 2024. This was the respondents’ apparent position before the arbitrator.”

Stroesser and Lotfizadeh started a dispute resolution with the RTB seeking compensation based on Huang’s “failure to accomplish the stated purpose on a notice to end tenancy,” which was to occupy the suite. The arbitrator found in their favour and granted a monetary order equal to 12 months’ rent or $39,040.

Huang petitioned the B.C. Supreme Court for a judicial review, claiming that the arbitrator failed to correctly interpret or define “occupancy” in line with the Residential Tenancy Act (RTA) and RTB policy guidelines.

However, Hughes disagreed, stating that the arbitrator quoted from the applicable sections of the policy guidelines, which clarified the meaning of “vacant possession” and what it means to occupy a rental.

The Justice noted that other RTB policies’ definitions of “occupy,” including holding in vacant possession for use, were inconsistent with the guidelines, which require a landlord who has ended a tenancy to occupy the rental unit except in extenuating circumstances.

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“Since vacant possession is the absence of any use at all, the landlord would fail to meet this obligation. The result is that Section 49 does not allow a landlord to end a tenancy to occupy the rental unit and then leave it vacant and unused.”

According to the Supreme Court decision, the RTB arbitrator discovered little evidence that Huang had ever moved into or occupied the unit at 1703-1005 Beach Ave. for the required 12 months.

Hughes also found that the RTB decision was not patently unreasonable for several reasons, including that the arbitrator did understand the definition of “occupy” and applied it to the evidence.

“In short, the petitioner has failed to articulate any basis upon which the Decision is patently unreasonable,” the Justice said. “The arbitrator’s conclusion that the petitioner had not met the onus on her of establishing that she occupied the Unit is reasonable and rational.”

“There is no basis upon which it could be said that the Decision borders on the absurd so as to rise to the level of being patently unreasonable.”

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

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