Evicted B.C. renter awarded $20K despite landlord’s daughter moving into unit

This stock image shows a door with an eviction notice on it. (Credit: Shutterstock)

A Vancouver landlord who fell just short of meeting B.C.’s post-eviction residence requirement must pay a former tenant more than $20,000, according to a recent court decision.

B.C.’s Residential Tenancy Act allows evictions in cases where a landlord or close family member intends to occupy the unit, provided they move in within a reasonable period of time and live there for a set amount of time – currently a minimum of 12 months.

When landlord Zohreh Feizy evicted her tenant so her daughter could move in, back in fall 2023, the minimum was six months – but her daughter stayed only five months and 10 days before leaving for an internship overseas, according to a recent B.C. Supreme Court decision.

The former tenant, Yinlue Wang, filed a dispute with the Residential Tenancy Branch and was awarded $20,806.

Feizy did not dispute that her daughter fell short of the six-month requirement, instead arguing extenuating circumstances were at play, the decision noted.

“Extenuating circumstances are circumstances where it would be unreasonable and unjust for a landlord to pay compensation, typically because of matters that could not be anticipated or were outside a reasonable landlord’s control,” a provincial policy guideline on so-called landlord’s use evictions says.

The guideline provides some examples of extenuating circumstances, including instances where the family member who is meant to occupy the unit dies before the minimum tenancy requirement is met, cases where a unit is destroyed by a wildfire, or occasions when an employer unilaterally delays an agreed-upon transfer.

Examples of circumstances that are not considered extenuating include someone changing their mind about moving into or staying in the suite, or the new occupant taking an extended vacation.

The arbitrator with the Residential Tenancy Branch ruled extenuating circumstances were not at play in this case, finding Feizy’s daughter essentially “changed her mind” when she decided to apply for and accept the internship. In addition, the arbitrator made note of the fact Feizy’s daughter never returned to live in the unit.

“While it may have been reasonable to be temporarily absent from the rental unit and resume occupancy after the internship, [she] applied to and moved away for law school immediately afterwards,” the Aug. 29 court decision said.

Feizy filed for judicial review, arguing the arbitrator made a legal error when assessing the issue of extenuating circumstances.

“The arbitrator’s failure to apply the test to (Feizy) herself constitutes a fundamental misapplication of the law. By focusing on the actions of a third party rather than the legal obligations and constraints of the landlord, the arbitrator reached a patently unreasonable conclusion that unjustly penalizes the petitioner for factors beyond her control,” the decision said, summarizing the argument.

The judge’s decision explained that a landlord has the burden of proving that extenuating circumstances are at play, spelling out what that would have looked like.

“To make out their extenuating circumstance in this case, the landlord would need to demonstrate it was reasonable to conclude they were surprised by the daughter’s change in plans after five months,” the decision said.

“The burden is on the landlord to show why this was not anticipated or would have been such a surprise to her that it was nevertheless appropriate to rely on the notice of eviction in the circumstances.”

On review, the judge found the arbitrator’s decision was imperfect but not unreasonable. While the question of what the landlord knew versus what her daughter knew wasn’t explicitly asked or answered, the judge determined it was legally sound.

“The arbitrator did apply the relevant provision and guideline, and drew inferences based on the information provided,” the judge wrote.

“The burden was on Ms. Feizy to show she faced extenuating circumstances. She did not persuade the arbitrator that the information she advanced, through her daughter as her primary witness, constituted such circumstances.”

Further, given the information available, the judge said the finding that extenuating circumstances were not at play was not “inconsistent with the intent of the legislation.”