The application for judicial review of a Provincial Court Judge’s decision was dismissed; the Court refused to allow the petitioner to argue an issue it overlooked raising in the underlying proceeding

Administrative law – Judicial review application – Standard of review of provincial court – Reasonableness – Judicial review – Applications – Judicial review – Standard of review – Reasonableness simpliciter

Tang v. Goldmanis, [2024] B.C.J. No. 359, British Columbia Supreme Court, February 28, 2024, B.K. Girn J.

Mr. Tang was the owner of a property in British Columbia. While living abroad, he rented the property to tenants, who owned dogs and played loud music throughout the day and night. A neighbour, Ms. Goldmanis, made several noise complaints to the city, and eventually brought an action in nuisance against Mr. Tang in small claims court. She was granted default judgment, as Mr. Tang failed to file a response or attend the hearing.

Mr. Tang’s counsel brought an application in Provincial Court to set aside the default order and dismiss the claim on the basis that he had a meritorious defence to the claim. Counsel for Mr. Tang submitted that there was no caselaw in Canada directly addressing a landlord’s liability for its tenants in nuisance, and cited a case from the Supreme Court of the United Kingdom for the proposition that a landlord, with some limited exceptions, cannot be responsible in nuisance for the actions of its tenants. The judge dismissed the application on the basis that Mr. Tang did not have a meritorious defence, as his counsel had advised that there was no clear law in Canada about owner’s liability for the conduct of tenants on the landlord’s property.

Counsel for Mr. Tang attended the Court Registry the following day to ask the judge to reconsider his decision, as he was able to find a case from B.C. which stood for the same principle as the UK case on which he had relied at the application to set aside the default order. The judge declined to accept the new case for reconsideration.

Mr. Tang filed a petition for judicial review at the B.C. Supreme Court of the judge’s refusal to set aside the default judgment and dismiss the initial claim against Mr. Tang. Justice Girn acknowledged this was the proper procedure, as there is no right of appeal for this form of order in the Small Claims Act, RSBC 1996, c.430.

Justice Girn then considered whether the lower court’s finding that there was no meritorious defence was reasonable. Mr. Tang argued that judges are “presumed to know the law” and that the judge ought to have been aware of the relevant case law, even if not presented to him by counsel. Justice Girn noted that this principle was typically referenced by courts to the benefit of a lower court judge in cases where a judge may not have fully explained the reasons for coming to a decision, but is presumed to have done so based on the law in a particular area. Justice Girn noted that the difficulty with Mr. Tang’s argument was that his counsel had stated there were no Canadian cases addressing the matter at issue. Justice Girn therefore held that the reasons could not be seen as being unreasonable on this point.

Justice Girn then considered whether he ought to consider the new authority presented by counsel, given it was not before the judge in the underlying action. He noted the court has discretion to permit a party to raise a new issue on judicial review, but generally that discretion will not be exercised where the issue could have been but was not raised before the underlying decisionmaker. Justice Girn declined to consider the case, and dismissed the application for review.

This case was digested by JoAnne G. Barnum and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].