Landlord who evicted tenant, then offered to take him back at double rent, loses in B.C. court

The property on Garfield Drive in Delta is seen in this 2014 photo from the BC Assessment website. (bcassessment.ca)

A landlord who evicted her tenant so that she and her family could move into the property, then seemingly offered to re-rent the property to the tenant for double what he had been paying, will have to pay him $30,100 in compensation after losing in B.C. Supreme Court last week.

Fatehjit Kaur rented her home on Garfield Drive in Delta to Melvin Javier from February 2021 through May 2022, according to the court decision published Friday. The monthly rent was $2,500.

In mid-April 2022, Kaur gave Javier a two-month notice to end tenancy for landlord’s use of the property. The eviction notice indicated that she would be moving into the home with her partner and children.

According to the decision, Javier moved out on June 1 and Kaur began renovating the property.

Then, in late September 2022, Kaur sent Javier a series of text messages that is partly reproduced in Justice Matthew Taylor’s decision, as follows:

Javier filed an application for dispute resolution with the Residential Tenancy Branch, asserting that the messages were evidence that Kaur had not fulfilled the purpose of the eviction notice, and that he was thus entitled to compensation equivalent to 12 months’ rent.

In B.C., landlords can evict tenants without cause if they or a close family member intend to move into the rental unit themselves. The Residential Tenancy Act requires such landlords to act in good faith, to complete the reason for the eviction within a “reasonable” timeframe and to occupy the unit for a minimum period of time – which the government increased to 12 months last year – before renting it out again.

Landlords who don’t occupy the property within a reasonable time or remain there for the prescribed duration – which was six months at the time Kaur evicted Javier – can be ordered to pay the evicted tenants the equivalent of 12 months worth of their former rent.

After hearing the case, an RTB arbitrator concluded that Kaur had not moved in within a reasonable period and had not proven there were extenuating circumstances that prevented her from doing so. The arbitrator awarded Javier $30,100, representing 12 months of rent plus the filing fee.

Kaur petitioned the B.C. Supreme Court seeking a judicial review of the arbitrator’s decision, which is how Taylor ended up weighing in on the case.

‘Ignorance about the applicable law’

The landlord argued that the RTB hearing had been procedurally unfair and that the arbitrator’s decision was patently unreasonable.

On the question of fairness, Kaur told the court she had not been “sufficiently put on notice” that the case would be about whether she completed renovations to the property in a timely manner, rather than whether she had attempted to re-rent the property to her former tenant.

If she had known that the arbitrator would be looking at whether she completed renovations and moved into the home within a reasonable timeframe, she argued, she would have produced additional evidence to support her position that the amount of time taken was reasonable.

Taylor was unimpressed by this argument, writing in his decision that its “fundamental weakness” was that it was based primarily on “her own ignorance about the applicable law, rather than any specific procedural steps taken or not taken by the arbitrator.”

The judge’s decision notes that the eviction notice Kaur provided to Javier references the legal requirements placed on landlords providing such notice.

“Seen in this light, the landlord’s procedural unfairness argument therefore depends upon the corollary assumption that the landlord was not obliged to read or understand the notice she herself delivered to the tenant and, more problematically, that she had no legal obligation to inform herself about the proper statutory basis for delivering a two-month notice before she took formal steps to evict the tenant,” the decision reads.

“The landlord’s own ignorance about the applicable law, and failure to adequately inform herself about the law in advance of a hearing, cannot reasonably in my view form the basis for a claim that the hearing was unfair.”

‘Keeping her options open’

In support of her claim that the RTB decision was patently unreasonable, Kaur argued that the arbitrator had ignored relevant evidence and taken “irrelevant considerations” into account.

Taylor disagreed, finding that the arbitrator had “accepted” the landlord’s evidence that she had moved into the property by Sept. 13, 2022, and that the arbitrator had found her evidence that she couldn’t have moved in sooner because of the renovations to be “vague.”

Kaur told the RTB that there were only two workers who completed the entire renovation, and that they were delayed by difficulties acquiring necessary materials for their work. However, she didn’t specify what materials were unavailable or why she didn’t hire more workers.

“Given that the landlord was the owner of the property and had directed and paid for the renovation, it was reasonable in my view for the arbitrator to have expected that the landlord would have specific knowledge concerning the details of the renovation and the precise reasons for any delays,” Taylor’s decision reads.

The arbitrator also found that Kaur’s testimony lacked credibility with regard to the offer to re-rent the property.

The landlord claimed that her offer to her former tenant was not to re-rent the Delta property, but rather to rent him a different house that she owned in Surrey. She told the RTB that the confusion in the texts came from her poor English.

For his part, Javier told the RTB the photos included with the texts closely matched the room configuration of the Delta house when he was renting it, and he provided his own photos from the time to match them.

The arbitrator found that Kaur was able to “clearly communicate” in English during the RTB hearing, casting further doubt on her assertion that the re-rental offer was intended to be for the Surrey property, rather than the Delta one.

Taylor’s decision notes that the arbitrator’s adverse findings about credibility are entitled to a “high level” of deference from the court.

“The arbitrator may quite reasonably have drawn the inference from the evidence, for example, that the landlord was keeping her options open with respect to accomplishing the stated purpose by exploring whether she could secure a more lucrative rental arrangement in lieu of moving into the property,” the judge’s decision reads.

Accordingly, Taylor found that the RTB decision was neither unfair nor patently unreasonable, and dismissed Kaur’s petition for judicial review.