By Maud Rozee, Lawyer Community Law Program
This post continues our residential tenancy law update by summarizing three RTB judicial review decisions released in January 2023 – one in which a tenant succeeded in obtaining an interim stay, and two others in which tenants’ judicial reviews were unsuccessful.
1. Galasso v. Chartwell Construction Ltd., 2023 BCSC 97
Galasso is a rare written decision on an interim stay of an order of possession. Mr. Galasso had obtained a two-week stay by applying without notice to his landlord, Chartwell. He brought a second application, on notice to Chartwell, to extend the stay until the determination of his application for judicial review.
Background to the Arbitrator’s Decision
The order of possession was granted by direct request arising from a 10 Day Notice to End Tenancy on the basis of unpaid rent. Chartwell served the tenants with the 10 Day Notice on September 1, 2022 by posting it to their door. The tenants paid their rent to Chartwell on September 10, 2022. Chartwell applied for an order of possession by direct request (a process in which the tenants are not permitted to participate in the hearing) on September 13, 2022.
The arbitrator ruled that the tenants had not paid the rent or filed an application for dispute resolution in relation to the 10 Day Notice within 5 days of receiving it, and granted an order of possession to Chartwell. The arbitrator’s decision did not contain any reference to the tenants’ rent payment on September 10, 2022, or to a letter they sent to Chartwell’s legal counsel enclosing a rent cheque on August 31, 2022.
The Stay Decision
Chartwell opposed the extension to the stay on two bases: (1) that the tenants had failed to make full and frank disclosure of all material facts to the judge granting the initial, without notice, stay and (2) that the judicial review had no chance of success.
The judge did not accept Chartwell’s submission that the tenants’ stay should not be extended because of their failure to make full and frank disclosure of all material facts on the without notice stay application. Despite finding that Mr. Galasso had failed to mention important facts, and could have misled the judge who granted the initial stay, the judge declined to set aside the stay on that basis. He held that the application before him was in essence a new hearing on the appropriateness of a stay, and that there was other evidence before him capable of sustaining the stay even after the misleading effect of Mr. Galasso’s previous evidence was corrected.
As for the merits of the judicial review, the judge found two potentially meritorious bases to challenge the order of possession judge, while noting that his preliminary assessments would not be binding on the judge hearing the actual judicial review.
The first was Mr. Galasso’s argument that Chartwell had misrepresented to the RTB that the tenants had not paid rent, when it was aware that they had actually delivered a rent cheque to Chartwell’s legal counsel on August 31, 2022. The judge wrote “I do not suggest that this is an extremely strong basis for review” but said that it was not frivolous or vexatious, and could therefore not be screened out at this early stage.
The second potentially meritorious argument was based on the arbitrator’s failure to mention the September 10, 2022 rent payment.
This argument was complicated by the fact that there was evidence before the judge that Mr. Galasso had actually received the 10 Day Notice on September 1, 2022, making the September 10, 2022 payment past the 5 day deadline. However, the arbitrator had relied upon the deemed receipt provisions of the RTA in finding that service of the 10 Day Notice was effective September 5, 2022 (making the September 10, 2022 payment within the 5 day deadline). The judge wrote “I am not convinced that the respondents would be allowed on the judicial review to retroactively substitute an earlier date to support the reasonableness of the adjudicator’s order, based on a fact that was not known to them or the adjudicator at the time that the hearing was held, or the decision was rendered.”
The judge concluded that the arbitrator’s failure to mention the September 10, 2022 rent payment gave rise to an argument that the arbitrator had failed to consider evidence that was fundamental to the order that resulted, writing, “such a core neglect of that evidence seems abundantly capable of being found patently unreasonable”.
This decision confirms for tenants that an arbitrator overlooking evidence of rent payments or misrepresentations by a landlord on a direct request hearing can be the basis for a meritorious judicial review.
Having found at least some merit to the judicial review, the judge extended the stay, but on terms designed to bring the judicial review to hearing as soon as possible. He commented that he thought the hearing could likely be completed in two hours and commented “if it has to go on the long chambers list, directions to expedite its progress can be considered.” This type of judicial case management not apparently requested by either party is relatively unusual. It likely arises from the fact that the tenants were self-represented, and the judge’s desire to ensure that matter continued to move forward despite the stay of the order of possession.
2. Li v. Virk, 2023 BCSC 83
Li is another decision dealing with an order of possession and a self-represented tenant. It is a judicial review decision.
Background to the Arbitrator’s Decision
The tenant’s building was sold to a new owner in spring 2022. The new property manager reached out to the tenant on March 31, 2022 advising of the new payment details and confirming that the monthly rent was $2,500 monthly, due on the first of each month.
This was not correct – the rent was actually $2,000 monthly. The tenant thought that the property manager was trying to force an illegal rent increase on her. She advised the property manager that the proper rent was $2,000, but was unable to provide a copy of her lease. The tenant did not pay any amount of rent on April 1, 2022 and on April 10, 2022, the landlord issued a 10 Day Notice to End Tenancy for unpaid rent.
The arbitrator found that the tenant was right that $2,000 was the proper rent. However, she concluded that the tenant had failed to pay the rent, and the landlord was entitled to an order for vacant possession. The arbitrator rejected the tenant’s evidence that she attempted to pay $2,000 in cash to the property manager and he refused to accept it.
The Judicial Review Decision
The tenant attempted to rely on new evidence that was not before the arbitrator about correspondence between the parties after the order of possession was issued, and the payment of the tenant’s security deposit. The judge declined to consider this evidence. In doing so, she set out the principles which govern when a court may look beyond the record before the decision-maker on a judicial review. This decision may be helpful to future litigants as a concise summary of those principles.
The judge also set out the principles applicable to whether a court will consider new issues on a judicial review, noting that the court retains discretion to entertain a new issue in “exceptional circumstances”. The judge declined to consider a new legal issue raised by the tenant about the applicability of s. 46(3) of the RTA. She wrote that the high standard of review required that the arbitrator have the opportunity to consider the issue at first instance, particularly because the issue involved the interpretation and application of the RTA and would require analysis of facts that were not before the arbitrator.
The tenant alleged a number of errors in the arbitrator’ decision, as well as bad faith and bias. The judge found that none of these rendered the decision patently unreasonable, and that the allegations of bad faith and bias appeared to arise solely from the tenant’s disagreement with the arbitrator’s findings.
One ground of review that I found interesting was the tenant’s argument that the arbitrator exercised her discretion in an arbitrary way by making the Order of Possession (issued August 29, 2022) effective at 1:00 pm on August 31, 2022, rather than two days after it was received by the tenant. Any two-day order of possession is harsh, and one that does not take into account when the tenant actually become aware of the order is particularly harsh. The judge rejected this argument, noting that the arbitrator had the discretion to make this decision, did not base it on irrelevant factors, and took the applicable statutory constraints into consideration.
However, in dismissing the tenant’s judicial review application, the judge appeared to implicitly acknowledge that a two-day timeline is unreasonable, as she extended the stay of the order of possession until the end of January 2023 (from January 13, 2023, the date of the decision) “in order to permit the petitioner and any tenants of the Premises additional time to find new accommodation.” In other words, although the judge was unwilling to find a two-day timeline to move out to be patently unreasonable, she was also unwilling to impose a similar timeline.
3. Nguyen v. Ly, 2022 BCSC 2347
Nguyen v. Ly, 2022 BCSC 2347 is a judicial review that revolved around questions of procedure.
Background to the Arbitrator’s Decision
The landlord applied to the RTB for an order of possession after it issued the tenant a One Month Notice to End Tenancy for Cause.
The tenant intended to dispute the Notice, but did not file a dispute. Instead, she filed an application for her landlord to comply with the RTA. She did not serve her landlord with this application, or with her evidence. The landlord served its application for an order of possession on the tenant.
The arbitrator dismissed the tenant’s application because of her failure to serve the landlord. The arbitrator granted the tenant leave to reapply, but obviously her deadline to dispute the Notice had expired. The arbitrator granted the landlord an order of possession because the tenant did not dispute the Notice.
The Judicial Review Decision
On the judicial review, the tenant submitted that despite the procedural mistakes she made, the arbitrator failed to take certain steps available that could have allowed her to dispute the Notice. The tenant alleged that the RTB had failed to ensure a procedurally fair hearing because the Arbitrator failed to consider or grant an adjournment and did not hear from the parties on the issue of whether to accept the tenant’s evidence for her application despite her failure to serve it on her landlord. In the Court’s words, the tenant submitted “that the Arbitrator treated her technical non compliance with the RTA as fatal to her application”: para. 28.
Unfortunately, the Court’s reasons for rejecting these submissions are somewhat conclusory. While the courts are understandably reluctant to micromanage arbitrators’ procedural decisions, it would have been helpful for the Court to make some reference to the principles that apply to questions of procedural fairness, or to outline the considerations that an administrative decisionmaker should apply to procedural questions like whether to grant an adjournment or accept late-served or unserved evidence.
The Court also considered the tenant’s submission that it was evident that the tenant (who was self-represented at the RTB hearing) had sought to challenge the Notice through her application, despite not filing a dispute and not expressly stating that this relief was sought in her application. The Court felt that this submission came too close to asking the Court to re-weigh the evidence because it required a detailed review of the wording of the tenant’s application and its meaning. The Court deferred to the arbitrator’s interpretation, citing the high standard of review.
This decision is an example of how difficult it is to overcome the standard of review and entice a Court to second guess an arbitrator’s management of procedural issues, even when there is a very unfortunate result for a self-represented tenant who was ignorant of the proper procedure.
Photo by Maria Ziegler on Unsplash