Court may consider pre-tribunal actions to assess whether party had notice of disputes

Court can look at how issues were raised and addressed before tribunal in order to determine whether party had notice of what was in dispute in proceeding. 

Administrative law – Decisions reviewed – Residential Tenancy office – Landlord and tenant – Leases – Termination – Judicial review – Appeals – Notice – Procedural requirements and fairness – Standard of review – Patent unreasonableness – Reasonableness – Correctness

Najaripour v. Brightside Community Homes, [2024] B.C.J. No. 1224, British Columbia Court of Appeal, July 3, 2024, D.C. Harris, S.A. Griffin and J. Winteringham JJ.A.

The appellant was a tenant at a rental property owned and operated by the respondent non-profit society, Brightside Community Homes Foundation (“Brightside”).

Under the Residential Tenancy Act, S.B.C. 2002, c. 78 (the “RTA”), certain types of non-profit or subsidized housing providers are exempt from rental increase restrictions. Brightside came within those exemptions.

Brightside operated a subsidized rental unit. The appellant was a tenant. Under the terms of the tenancy agreement, the initial economic rent was $1300 per month, but Brightside had discretion to determine an amount payable that was less than economic rent, taking into account the tenant’s financial circumstances, governing funding, and costs. The tenancy agreement required the appellant to provide financial information to Brightside when requested. Failure to comply with that term gave Brightside the right to terminate the tenancy.

In April 2021, Brightside requested financial information from the tenant. The tenant disputed that Brightside specifically requested bank statements for income assessment. Whether or not the “list of required documents” and required form was actually enclosed with Brightside’s correspondence was disputed on appeal, the underlying documentation was not in evidence, and the tenant took the position they were not notified that Brightside required bank statements. Brightside argued the tenant never denied in the underlying proceedings that she knew that Brightside wanted her to disclose bank statements as part of the financial disclosure.

As of April 2021, the tenant was paying rent of $779 per month, less than economic rent. In June 2021, on the basis that the tenant failed to provide the requested financial information, Brightside increased the appellant’s rent to over $1500 per month, representing the current economic rent at that time. In September 2021, after the tenant failed to pay the adjusted rent, Brightside issued a notice to end tenancy.

The tenant appealed the notice to end tenancy to an arbitrator under the RTA. The arbitrator found the tenant failed to provide the requested financial information and upheld the termination.

The tenant sought judicial review. On judicial review, the chambers judge held there was no error in the arbitrator’s decision in relation to the termination of the tenancy agreement.

The tenant appealed to the Court of Appeal. On appeal, the court found there was no error in the termination of the tenancy agreement. While there was a factual dispute regarding whether bank statements were requested, and the list of requested documents for income assessment was not in evidence, the court held that by the time of the arbitration hearing, the tenant’s failure to provide bank statements was the main issue and the tenant “clearly had notice that … Brightside required her bank statements, or some documentary proof from a bank that went beyond [the tenant’s] mere assertion that she no longer had a bank account.” As a result, there was no error in determining that Brightside was entitled to terminate the tenancy agreement for failure to provide the requested financial information.

The appeal was dismissed.

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