B.C. judge upholds tenants’ $33K wrongful eviction award

This stock image shows an eviction notice. (Credit: Shutterstock)

A B.C. landlord who was ordered to pay wrongfully evicted renters $33,700 failed to convince a court his former tenants “spied upon” the unit after their departure, making it impossible to inhabit for the legally required timeframe.

Justice Jan Brongers dismissed the landlord’s petition for judicial review last month, upholding a decision of the Residential Tenancy Branch. His reasons were posted online this week.

The tenants were evicted in 2024, when their landlord Xing Li served them with a two-month notice, according to the decision.

“The tenants received a notice to end a tenancy indicating that they must leave because the landlord or his spouse was going to occupy the house. The tenants moved out, but monitored the house after they left,” the judge wrote.

“Based on their observations, the tenants formed the view that the house had been left vacant, contrary to the landlord’s stated intention when he evicted them.”

For a so-called landlord’s use eviction to be lawful, the landlord or family member has to move to the unit and occupy it for a specific period of time. At the time the tenants filed a dispute with B.C.’s Residential Tenancy Branch the time period was six months, but it has since been extended to 12.

In the petition for judicial review, Li told the court that his wife Jinting Wen and their son did occupy the unit but moved out early because of extenuating circumstances.

“The landlord claimed that his spouse did, in fact, move into the house within a few weeks after the tenants had vacated it,” the decision said.

“While acknowledging that his spouse then moved out five months later, the landlord argued that this was because she felt spied upon by the tenants and uncomfortable because of a lack of privacy.”

An arbitrator for the Residential Tenancy Branch found the landlord had not established his wife and son lived in the unit. This determination was, in part, based on the evidence the tenants had gathered by monitoring the property—with the help of family members who lived nearby.

“The tenants and their relations observed that other than the landlords’ sporadic maintenance visits and signs of a few household belongings, there were no indications that anyone had been actually occupying and living in the property since the tenants’ departure,” the judge’s decision said.

“The arbitrator noted, in particular, that there was no evidence that there was any clothing, food, kitchen and cooking utensils, television, or internet at the property. There was also no evidence of any furniture other than a mattress on the floor of a bedroom, a single folding table, a chair, and a few scattered personal items,” the decision continued.

Because Li had not met his burden of proving Wen and their son moved in, the arbitrator found it was unlikely they would have “moved out” on account of the former tenants’ monitoring of the property.

Further, the arbitrator found even if occupancy had been established, the tenants’ actions “though diligent, were not so extreme as to justify the landlords’ breach,” according to the decision.

The tenants were awarded $33,700 for the wrongful eviction, equivalent to 12 months of rent plus a $100 filing fee.

The landlord argued the decision should be overturned because the arbitrator did not properly consider the evidence establishing occupancy or the evidence establishing extenuating circumstances.

Li cited submissions he said showed Wen and their son did live in the unit including “some photographs of personal items inside the house, as well as photographs showing the child reading in a bed, dining at a table with guests, and having his hair blow dried.”

The judge found the arbitrator had considered these things but weighed it against the tenants’ evidence which showed long stretches of “apparent inactivity” at the property and a dearth of furniture or belongings.

“I have no difficulty with understanding the basis upon which (the arbitrator) concluded that the landlord failed to establish that Ms. Wen and the child ever actually lived at the property,” Brongers wrote.

Li argued the arbitrator had also failed to consider the former tenants’ “surveillance” as an extenuating circumstance that would have enabled his wife and son to fall short of the minimum occupancy period.

“The landlord submits that this conclusion was flawed given the evidence Ms. Wen presented of her reaction to learning that the tenants were monitoring the property. They say that this evidence showed that Ms. Wen had developed intense feelings of anxiety and insomnia, which justified her early departure,” the decision said.

The judge—like the arbitrator—found this issue was moot given the conclusion that Li’s wife and son did not occupy the property in the first place.

“That said, even if this argument was not moot and I had to address it on its merits, I would conclude that it, too, is unfounded,” Brongers wrote.

The tenants did not respond to the petition for judicial review, but the judge was satisfied they were aware of the proceedings and had chosen not to participate because they were “of the view that the landlords’ petition lacks any merit whatsoever.”