The Landlord/Appellant, Aarti Investments Ltd., was unsuccessful in attempting to appeal a decision of a Chambers Judge. The Chambers Judge had set aside a decision of a residential tenancy branch arbitrator, which had granted an Order of Possession to the Landlord.

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Appeals – Legislative compliance – Landlord and tenant – Residential tenancy agreements

Aarti Investments Ltd. v. Bauman, [2019] B.C.J. No. 840, 2019 BCCA 165, British Columbia Court of Appeal, May 14, 2019, P.M Willcock, R. Goepel and G. Dickson JJ.A.

The Appellant/Landlord, Aarti Investments Ltd., is the owner of an apartment building in downtown Vancouver. The Respondent/Tenant, Ms. Vivian Bauman, is a long-term tenant in the Landlord’s building.

On July 28, 2017, the Landlord served the Tenant with a Two Month Notice to End Tenancy for the Landlord’s use of property, on the ground it had all the permits and approvals required to renovate or repair the unit and planned to do so in a manner that required the unit to be vacant. The Tenant disputed the notice on the basis that it was not made in good faith and the Landlord did not have all necessary permits for the proposed work. After several days of hearing, Arbitrator C. Wilson made an Order of Possession in favour of the Landlord. The Arbitrator found it more likely than not that the Landlord truly intends to do what was indicated in the notice.

The Tenant made an Application for Review Consideration of Arbitrator C. Wilson’s decision, and Arbitrator Nazareth dismissed the Application in February 2018. On February 1, 2018, the Order of Possession was stayed pending the hearing of the Tenant’s application for judicial review.

The Chambers Judge heard the application for judicial review and remitted the matter back to the Residential Tenancy Branch for reconsideration. The Chambers Judge held that Arbitrator C. Wilson made several palpable errors and the decision was not within the range of reasonable and acceptable outcomes. First, the Chambers Judge held the Arbitrator failed to consider an offer that had been made by the Tenant to vacate the premises at her own expense during the duration of the renovations. Second, the Chambers Judge held the Arbitrator had misapplied the onus or proof on the question of whether the Landlord acted in good faith in providing the notice. Third, the Chambers Judge held the Arbitrator erred in issuing the Order of Possession even though the Landlord did not have all of the necessary permits for the proposed work.

The Landlord appealed the decision of the Chambers Judge. The Landlord argued the Chambers Judge erred by failing to give deference to the Arbitrator and deference is required by section 58 of the Administrative Tribunal Act. The Landlord argued the Arbitrator’s decision was not patently unreasonable because there was evidence capable of supporting it.

The Court of Appeal first considered the issue of the Tenant’s offer to return to the premises. The Landlord argued the Arbitrator was aware of this offer but the Tenant’s willingness to return is not a relevant factor. The Court of Appeal concluded that the Chambers Judge erred in finding that the Arbitrator’s failure to address the Tenant’s offer was a reversible error. The Court of Appeal held the Chambers Judge’s conclusion was implicitly based on the proposition that whether the renovation is consistent with continued tenancy hinges upon the tenant’s willingness to return to the premises, even if the tenant is out of possession for months. The Court of Appeal held this was inconsistent with the plain wording of the Residential Tenancy Act.

The Court of Appeal next considered the issue of misapplying the onus of proof on the issue of good faith. The Landlord accepted that it had the onus of proof to establish both elements of good faith. The Court of Appeal agreed with the Chambers Judge that the Arbitrator had erroneously required the Tenant to prove the Landlord acted in bad faith. The Court of Appeal was prepared to dismiss the appeal on this basis.

Although not necessary, the Court of Appeal considered whether the Arbitrator erred in finding the Landlord’s permits were sufficient. The Landlord argued that the phrase, “all the necessary permits and approvals required by law” had not been judicially considered and therefore deference was owed to the Arbitrator on this point of mixed fact and law. The Court of Appeal held there was insufficient evidence in the record to show it was open to the Arbitrator to find the statutory test to be satisfied. The Court of Appeal held the Arbitrator failed to apply section 49(6) of the Act to determine whether the deficiency of the electrical permits went to whether or not the renovations or repairs required vacant possession.

The Court of Appeal dismissed the appeal and vacated the Order of Possession. The Court of Appeal also remitted the matter to the Residential Tenancy Branch for reconsideration.

This case was digested first published in the LexisNexis®.