B.C. judge quashes $57K award for tenant who ‘deliberately’ didn’t serve landlord notice properly

A B.C. man who owed his former landlord months of unpaid rent was awarded $57,700 in compensation after filing a tenancy dispute against the homeowner and “deliberately” failing to serve him notice properly, according to a judicial review of the decision.

Saeed Mohammadi’s actions led to landlord Siavash Dehpour missing a hearing with an arbitrator from the Residential Tenancy Branch, depriving him of a chance to respond to the renter’s allegations, B.C. Supreme Court Justice Judith Hoffman found.

The arbitrator ultimately ordered Dehpour to pay Mohammadi the equivalent of 12 months’ rent.

When pleading his case at that hearing, Mohammadi also left out important context about “the circumstances under which (his) tenancy was terminated,” Hoffman found, calling the renter’s behaviour “deserving of rebuke.”

“The tenant deliberately failed to take the proper steps to serve the landlord because it was in his interest for the landlord to be absent from the hearing,” the judge added. “This judicial review would likely have been avoided if the landlord had been given the right to be heard and proper disclosure had been made allowing the arbitrator to fairly determine whether the tenant was entitled to compensation.”

Hoffman quashed the arbitrator’s decision while ordering Mohammadi to pay his former landlord’s court costs, plus $3,500 in special costs.

The fixed-term tenancy

The court heard Mohammadi moved into a North Vancouver property owned by Dehpour in November 2021 on a fixed-term lease.

Under the terms of the agreement, the tenant was to move out on March 31, 2023, so Dehpour could renovate the property for his family’s use.

Both sides agreed that Mohammadi stopped paying his $4,800 rent months before that date, in the previous October. Dehpour eventually issued him a 10-day eviction notice on March 3, 2023.

“The tenant did not pay the outstanding rent in response to the 10-day notice, nor did he dispute the notice,” Hoffman said.

That would have entitled the landlord to take possession of the property on March 13, though the court heard he talked to Mohammadi and decided to let him stay until the end of the month.

Hoffman noted the two sides disagree about what they discussed at that time, and whether “any agreements were reached.”

Mohammadi told the court they made a verbal deal that he would pay one month’s rent and forfeit his deposit to bring his tenancy back into good standing.

Dehpour denied that was the case, pointing to emails he sent after Mohammadi vacated the property, in which the landlord continued to maintain he was owed unpaid rent.

The dispute notice

Not long after Mohammadi moved out, he filed a tenancy dispute claiming compensation on the basis that the landlord wasn’t renovating or re-occupying the home, violating the terms of their lease.

Online records show the property was sold in May 2023.

The court heard Mohammadi attempted to serve Dehpour notice at the North Vancouver home – even though the landlord had a provided a different address in West Vancouver on both their tenancy agreement and the eviction notice.

Canada Post eventually returned the dispute notice to Mohammadi as unclaimed.

In a May 2023 email to the Residential Tenancy Branch, Mohammadi suggested his former landlord “purposely did not collect” the notice, and referred to the North Vancouver property as Dehpour’s “home address” and “only address he has.”

A hearing was held in September 2023, with the arbitrator the landlord Dehpour had been served and moving forward in his absence.

Mohammadi noted the RTB had emailed the landlord twice ahead of the hearing, though the judge was uncertain he received either message.

Even if he had, Hoffman said that would not have satisfied the legal requirement to serve notice in one of the methods set out under the Residential Tenancy Act, which do not include email.

A ‘procedurally unfair’ hearing

Hoffman found the one-sided hearing that followed was “procedurally unfair,” with the landlord being denied the “basic rights” of attending, presenting counter-evidence and making his own submissions.

The judge also noted there was no sign in the RTB decision that the arbitrator had been made aware of Mohammadi’s unpaid rent, or the fact that Dehpour had taken steps to evict him.

“The absence of the landlord and the tenant’s failure to disclose the 10-day notice prevented the arbitrator from understanding the full context of the tenancy’s termination,” Hoffman added.

“Had the landlord been present, he would have had an opportunity to explain that the tenancy was terminated because the tenant had failed to pay rent.”

While Mohammadi argued the notice was moot because of his alleged verbal agreement with Dehpour, the judge said the full circumstances should have been disclosed anyway.

Hoffman also said she was “skeptical that such an agreement was made,” based on the landlord’s email evidence.