A party’s failure to recall a witness at a Residential Tenancy Branch hearing was not a breach of procedural fairness

Hearings before the Residential Tenancy Branch are designed to be informal, efficient and timely. While parties are entitled to a high level of procedural fairness, the content of the process rights must be assessed within the statutory and institutional context.

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Correctness; Landlord and tenant – Residential tenancy agreements – Vacancy notices.

Chen v. McLennan, [2025] B.C.J. No. 2464, British Columbia Court of Appeal, December 12, 2025, K. Horsman, N. Iyer and G.B. Gomery JJ.A.

In this case, the Court of Appeal considered whether a hearing before the Residential Tenancy Branch (“RTB”) was procedurally unfair.

The appellant was the former tenant of the respondent landlord. The landlord served a notice to end the tenancy on the basis that she intended to occupy the rental unit. The tenant vacated the rental unit as instructed, but later observed signs suggesting that the landlord had not actually moved in. The tenant applied to the RTB for compensation under section 51(2) of the Residential Tenancy Act (the “Act”), which required a landlord to pay 12 months’ rent to the tenant if they failed to establish that they occupied the unit within the time required by the Act.

Following a hearing, the RTB arbitrator found that the landlord had not established occupancy and awarded the tenant $82,380, representing 12 months’ rent, plus fees.

The landlord applied to the BC Supreme Court for judicial review of the arbitrator’s decision. The chambers judge found that the RTB hearing was procedurally unfair and set aside the arbitrator’s decision. The basis for the finding of procedural unfairness was that the arbitrator excused a witness for the landlord at the beginning of the hearing and did not recall her. The landlord had therefore been deprived of an opportunity to present evidence. The judge held that, regardless of whose responsibility it was to ensure the witness provided evidence, fairness required the witness be heard in this case.

The tenant appealed the judge’s decision to the BC Court of Appeal. The tenant argued the judge erred in finding procedural unfairness because the landlord had not requested that the witness be recalled, and the landlord had a full opportunity to present her case.

The standard of review on appeal for questions of procedural fairness is correctness. The Court of Appeal held that the reviewing judge erred in concluding the hearing was procedurally unfair. The RTB process followed the rules, and the landlord had notice of the case and a meaningful opportunity to be heard. The Court held that the responsibility to recall the witness was that of the landlord, not the arbitrator. It was up to the landlord, through counsel, to decide how best to present her case. The landlord’s failure to recall the witness was not a breach of the arbitrator’s duty to provide a fair hearing. The Court allowed the appeal and restored the arbitrator’s decision.

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