Arbitrator’s factual errors render RTB decision patently unreasonable

Renovation delays not unreasonable in Residential Tenancy Branch dispute.

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Appeals – Standard of review – Patent unreasonableness – Evidence; Landlord and tenant – Residential tenancy agreements.

Dowling v. Heitner, [2025] B.C.J. No. 1869, British Columbia Court of Appeal, October 1, 2025, J. DeWitt-Van Oosten, J.C. Grauer and S.A. Donegan JJ.A.

This case centred on the requirement under the Residential Tenancy Act (the “Act”) that a new owner of a home occupy the unit within a reasonable time. Section 49(5) of the Act allows a landlord to end a tenancy if they are selling the unit, the conditions of the sale have been satisfied, and the purchaser or a close family member of the purchaser intends in good faith to occupy the unit. Where a landlord fails to meet the criteria within a reasonable period after the effective date of notice, the tenant is entitled to the equivalent of 12 times the monthly rent.

The appellant, Ms. Heitner, lived in a condo unit in Vancouver. The landlord sold the unit to the respondent, Ms. Dowling, and the landlord provided notice to Ms. Heitner that the tenancy would be terminated. She vacated the unit on May 31, 2021, however, Ms. Dowling did not move into the unit until August 1, 2021 due to delays in renovations on the unit.

Ms. Heitner applied for compensation with the Residential Tenancy Branch (the “RTB”), arguing that Ms. Dowling did not move into the unit within a reasonable period. Her application was successful, and she was awarded 12 times her monthly rent. The RTB arbitrator found that the amount of time to complete the renovations was unreasonable and that Ms. Dowling had failed to adduce evidence regarding the unexpected delays in the condo renovations. Ms. Dowling’s application to the RTB for a review and to adduce fresh evidence was denied.

Ms. Dowling applied for a review in the B.C. Supreme Court. The reviewing judge found that the arbitrator’s decision resulted from a misapprehension of the record making the decision patently unreasonable. Specifically, the arbitrator incorrectly found that the renovations constituted approximately $5,000 worth of work, when they actually constituted approximately $30,000 work of worth, requiring more time to complete. The arbitrator also incorrectly found that Ms. Dowling had failed to adduce evidence about the delay. She had, in fact, filed email correspondence between herself and the contractor discussing the unexpected delays arising from problems with the sub-trades. The reviewing judge declined to remit the matter back to the RTC and set aside the arbitrator’s decision.

The reviewing judge’s decision was upheld by the B.C. Court of Appeal (“BCCA”). The reviewing judge correctly found that the arbitrator’s decision was patently unreasonable. Despite the patently unreasonableness standard being the most deferential in administrative law, the arbitrator’s factual errors fundamentally undermined their conclusions. Such patently unreasonable findings of fact “either individually or in their cumulative effect, will allow for judicial interference with an RTB decision notwithstanding the RTB’s status as a specialized tribunal” (para. 37).

Heitner argued that even if the arbitrator’s decision was unreasonable, the RTB’s review decision was not affected by the arbitrator’s factual errors and should remain intact. The BCCA disagreed, noting that Ms. Dowling’s application to adduce fresh evidence, which the RTB denied, was necessitated by the arbitrator’s factual errors. Regardless, the Court noted that “because of the limited basis on which a party may seek an internal review of an arbitrator’s decision under s. 79(2) of [the Act], the proper subject of the judicial review is the initial decision by the arbitrator, not the decision of the review panel” (para. 40).

The Court also found that the reviewing Judge did not err in declining to remit the matter back to the RTB. Such a decision is discretionary and guided by the factors set in in Maasanen v. Furtado, 2023 BCCA 193, including, inter alia, a concern for delay, the risks of further judicial review proceedings, and whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question. Moreover, the reviewing judge noted the unlikely success of Ms. Heitner’s application had the arbitrator correctly understood the facts.

The appeal was dismissed.

This case was digested by Rachel Wood of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].