RTB decision allowing eviction for landlord's use found 'patently unreasonable' in B.C. court

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

A residential eviction for landlord's use that was approved by B.C.'s Residential Tenancy Branch has been overturned in B.C. Supreme Court.

In a decision issued this week, Justice Wendy A. Baker found that the RTB arbitrator's decision to allow the eviction was "patently unreasonable" and remanded the case to the RTB for a new hearing.

Tenant Navneet Singh Sandhu brought the case against his landlord Amninder Kaur Gill, who issued him a two-month notice to end tenancy for landlord's use of the property in May 2023.

Sandhu challenged the eviction notice before the RTB, which issued its decision in August 2023, and ordered him to vacate the property by Sept. 30 of that year. That order was stayed while Sandhu's petition for judicial review was before the B.C. Supreme Court.

The court decision, which was issued in Vancouver, does not specify where in B.C. the rental property is located.

Surge in bad faith evictions

Sandhu advanced his challenge to the RTB ruling on two grounds: First, that the arbitrator had "reversed the clear onus on the landlord to establish that the notice was issued in good faith and for no ulterior motive"; and second, that the arbitrator failed to demonstrate that he had "considered relevant evidence in relation to the challenge to motive raised by the petitioner."

Landlords in B.C. are allowed to evict tenants if they or "a close family member" plan to reside in the unit, according to the provincial Residential Tenancy Act.

The act also specifies that the intention to occupy the unit must be "in good faith."

Tenant advocates have previously told CTV News that – since the provincial government cracked down on renovictions in 2021 – they've seen a surge in calls from tenants being evicted for landlord's use, often in dubious circumstances.

Landlords caught evicting tenants in bad faith can be ordered to pay 12 months' worth of their former tenant’s rent, but there is no requirement that they allow the tenant to move back into the unit.

Speaking to CTV News last year, Robert Patterson, a lawyer for the Tenancy Resources and Advisory Centre, argued that property owners are incentivized to kick tenants out by a rental market that will often allow them to charge a new tenant more than double what they were previously charging.

He said the punishment for landlords caught abusing the system often amounts to a slap on the wrist.

Arbitrator reversed onus

In Sandhu's case, according to the court decision, the tenant believed his landlord did not genuinely intend to have a close family member move into his rental unit.

He submitted a variety of evidence to the RTB in support of this suspicion, alleging that Gill "had a history" of seeking rent increases that violated the Residential Tenancy Act, and that the notice to end tenancy for landlord's use had been made just 22 days after the RTB had dismissed a previous attempt to evict him.

The RTB arbitrator found Sandhu's evidence unconvincing, writing in his decision – as summarized in Baker's – that previous rent increases don't necessarily suggest an intention to secure a new tenant at a higher rent, and that the previous eviction attempt was "unrelated" to the case at hand because it dealt with alleged non-payment of rent, rather than landlord's use.

"I do not believe that the tenant has provided sufficient evidence to prove that the landlord is acting in bad faith by issuing the notice," the arbitrator wrote.

This, the judge noted, was not the standard the arbitrator was supposed to be applying. By law, when a tenant alleges that a landlord has an ulterior motive for seeking an eviction, it's up to the landlord to prove they are acting in good faith.

"The onus was not on the tenant to establish the landlord's bad faith," Baker's decision reads.

"The question the arbitrator needed to address was whether the landlord met the onus on him to prove he had a good faith intention to occupy the unit, and that his intention was not motivated in whole, or in part, by a dishonest purpose."

By concluding that Sandhu had not established bad faith on the part of his landlord, the arbitrator made a decision that was patently unreasonable, according to the court decision.

Evidence was not considered

Baker also ruled that the arbitrator had failed to appropriately consider all of the evidence that Sandhu provided in support of his allegations.

While arbitrators are not required to "recite every piece of evidence" before them, they are obligated to demonstrate that they have "addressed the fundamental issues in dispute as raised by the evidence," the decision reads.

In this case, Baker concluded there were several issues raised by the evidence that the arbitrator had failed to address.

For example, Sandhu submitted that a tenant in another unit in the building had been evicted for landlord's use, but the unit had instead been converted into an Airbnb. The judge found the RTB arbitrator had failed to address this allegation.

Nor did the arbitrator adequately address evidence about the landlord's previous attempts to evict Sandhu, according to Baker.

"The arbitrator did not address the conflict in the evidence from the May hearing where the respondent’s agent/witness told the RTB that he relied on the rental income to pay the mortgage, and only 22 days later apparently had no need of the money to pay the mortgage because he was moving in himself," the decision reads.

"While the arbitrator found the respondent did intend to move into the suite, the arbitrator did not address whether there was still an ulterior motive in doing so by fully analyzing the evidence raised by the petitioner."

This, too, made the RTB decision patently unreasonable, Baker concluded, ordering that it be set aside and a new hearing on the matter held.

The judge also awarded Sandhu court costs, but declined to award special costs the tenant was seeking as punishment for "certain aggravating behaviour" by the landlord during the litigation.

"In particular, he refers to the respondent’s action in continuing to allow a truck to be parked on the rental property driveway in such a way that petitioner and his partner are unable to get their car out of the garage," the decision reads.

"While I agree that this behavior is irresponsible and retaliatory, I am not convinced that it is conduct in the litigation itself such that an award of special costs would be appropriate."

With files from CTV News Vancouver's Andrew Weichel