Court overturns $82K award to evicted Vancouver tenant, rules process was ‘procedurally unfair’ to landlord

Downtown Vancouver is seen from the city's west side in this file photo. (Shutterstock.com)

A Vancouver man who won an $82,000 monetary order against his former landlord may not receive the money after a B.C. Supreme Court justice ruled the process that led to the award procedurally unfair.

The case has been sent back to the province’s Residential Tenancy Branch for a new hearing, according to Justice Anita Chan’s decision, which was published Wednesday.

Landlord Xi Chen brought the case to the court, seeking a judicial review of the RTB ruling that would have forced her to pay her former tenant Neal McLennan $82,380 – equivalent to 12 months of his former rent of $6,685 a month.

McLennan brought the case to the RTB in the first place, seeking compensation on the grounds that Chen had allegedly evicted him in bad faith, claiming she planned to move into the property, but failing to actually do so.

The property

The court decision does not specify the address of the property, describing it only as “approximately 8,000 square feet” and located on a one-acre on Cartier Street in Vancouver. There is also a separate coach house on the property, but McLennan rented the main home, according to the decision.

The details suggest the home is located in Vancouver’s affluent Shaughnessy neighbourhood, as nearly all addresses on Cartier Street outside of that neighbourhood have smaller footprints and more modest dwellings on them.

The decision indicates McLennan began renting the house in October 2016, paying $6,000 a month in rent. In September 2022, Chen issued a two-month notice to end tenancy for landlord’s use. McLennan moved out in January 2023, by which time his rent had risen to $6,685 a month.

B.C.’s Residential Tenancy Act allows landlords to evict tenants without cause if the landlord or a close family member intends to occupy the rental unit.

The law requires landlords to act in good faith when making such an eviction, and to occupy the unit within a reasonable amount of time and remain there for at least a year, though this required time frame took effect last year. When McLennan was evicted, the minimum time a landlord was required to occupy the property was six months.

Landlords found to be acting in bad faith can see their eviction notices cancelled – if the tenant hasn’t moved out yet – or be ordered to pay the tenant 12 months’ worth of their former rent. The same penalty applies for landlords who fail to meet the occupancy requirements.

The parties’ arguments

According to Chan’s decision, McLennan sought compensation from the RTB because he believed Chen was not occupying the property as she had claimed she would.

“The tenant provided evidence that he was frequently in the area from January 2023 onwards as his new accommodations were close by,” the court decision reads.

“He provided evidence that after he moved out, the gate on the property remained locked, the garbage bins were unmoved, the pool had deteriorated to a swamp, and outdoor furniture he had left behind remained. The tenant argued many of the landlord’s photographs show the coach house, and not the main house.”

For her part, the landlord provided the RTB with the aforementioned photos, along with “utility bills, copies of takeout food orders, text messages, and a photograph of identification which shows the rental address,” according to the court decision.

Chen told the RTB she had occupied the property beginning in February 2023, initially sleeping in the coach house while the main home underwent renovations.

“She provided evidence that she used rooms in the main house, such as the kitchen for cooking, and the living and dining rooms for entertaining guests,” the decision reads. “By late-April 2023, the landlord’s evidence was she was living full-time in the main house. However, she broke up with her boyfriend in May 2023, and she travelled in June and July to recover from the breakup.”

Procedural fairness

The landlord also had a witness call into the hearing, but that witness did not end up testifying. The RTB arbitrator dismissed her, saying “if we need her, she can call back in,” according to the decision.

Neither the arbitrator nor the landlord nor her lawyer then called for the witness to return, with the arbitrator maintaining that the hearing should not be extended beyond its one-hour time limit and should not be adjourned and reconvened at a later date.

In her petition for judicial review, Chen argued that the process had been procedurally unfair because she wasn’t given the opportunity to call her witness.

While McLennan argued that it was the responsibility of the landlord or her counsel to call the witness within the time limit provided, the judge disagreed, finding that “it matters not whose responsibility it was to ensure the witness provided evidence.”

“This was a significant monetary judgment,” the decision reads. “It was important to both parties. The landlord had a legitimate expectation that she would be able to call her witness to provide evidence during the hearing. It is difficult to find that the landlord’s right to be heard has been met when she did not have an opportunity to present evidence that she wanted the arbitrator to hear. I find the hearing was procedurally unfair to the landlord.”

The landlord also argued that the arbitrator’s decision – which ruled that she had provided insufficient evidence to show she actually occupied the home after the eviction – was “patently unreasonable,” but the judge declined to make such a finding.

“I find no merit in the landlord’s argument of unreasonableness,” Chan’s decision reads. “The landlord is asking this court to reweigh the evidence and come to different conclusions. The inferences drawn by the arbitrator were open to her on the evidence, and I do not find the decision to be openly, clearly, evidently unreasonable.”

The judge set aside the arbitrator’s ruling and remitted the case to the RTB for a new hearing.