Landlord who failed to move into her condo after evicting her tenant due to a change of moving plans arising out of the COVID-19 pandemic was ordered to pay the tenant a full year’s rent in compensation

Administrative law – Decisions reviewed – Residential Tenancy office – Landlord and tenant – Residential tenancies agreements – Eviction – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness

Dyck v. Lyndon, [2023] B.C.J. No. 518, 2023 BCSC 440, British Columbia Supreme Court, March 23, 2023, D.A. Betton J.

In September 2020, pursuant to s. 49(3) of the Residential Tenancy Act, a Manitoba-resident landlord evicted the tenant in her BC condo with two months’ notice on the basis that she or a close family member would be moving into the unit. The tenant moved out and then noticed no one moved in. Seven months after the eviction notice, he noticed the property was listed for sale and still unoccupied. Four months later, he filed an application for dispute resolution with the Residential Tenancies Branch, seeking compensation for his eviction, which he said was not made in good faith. The landlord argued that she had intended to move into the condo but then her plans, including her retirement, became uncertain due to the COVID-19 pandemic and her hospital job.

After two telephone hearings, the arbitrator issued a decision in favour of the tenant, awarding him $11,760, being 12 months’ worth of his rent, pursuant to s. 51(2) of the Act. The arbitrator found that the landlord had failed to comply with the reason stated in her 2-Month Notice for a minimum of six months from the effective vacancy date. In considering the RTB Policy Guideline 50 regarding extenuating circumstances, the arbitrator concluded that the landlord did not provide sufficient evidence of extenuating circumstances that prevented her from moving into the unit within a reasonable period of time after the effective date of the 2-Month Notice.

The landlord sought judicial review of this decision with the BC Supreme Court, arguing that the decision was unreasonable due to the arbitrator erring in their analysis and weighing of the evidence, and because there had been a series of procedural errors which rendered the hearing unfair. The alleged procedural errors included that the arbitrator had muted the landlord and her common-law spouse, who was acting as her agent, at times during the hearing when the arbitrator felt they were not listening, and refused their request for an adjournment at the second hearing to seek counsel, after they had previously been encouraged at the first hearing to seek same. The court found the decision was reasonable, noting that while the landlord had the right to be heard, the arbitrator also had the power to manage the hearing, and “Fairness does not give any party the right to persist in advancing arguments that clearly lack merit after the issue is ruled on.”

This case was digested by Kara Hill, 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 contact Kara Hill at [email protected].

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