Judicial Review of an RTB Decision That Ignored Key Evidence

The Dispute

A landlord ended her tenants’ lease so she could move into the rental property herself. Not long after moving in, she had to leave the country for several months to care for a parent who required emergency surgery and an extended recovery abroad. When she returned, the tenants sought a year’s rent, arguing she had abandoned her stated plan to live there. The tribunal that heard the claim awarded the tenants that compensation without addressing why she had been away.

The Parties’ Positions

The tenants sought twelve months’ rent under section 51(2) of the Residential Tenancy Act, which entitles a tenant to that compensation where a landlord’s notice to end tenancy for the landlord’s own use is not carried out as required. Before the Residential Tenancy Branch, they contended that the landlord had not shown continuous occupation for the period the notice required, pointing to the timing and length of her absence as proof the stated purpose was never accomplished.

The landlord answered that section 51(3) of the Act permits the director to excuse non-compliance where extenuating circumstances prevented the stated purpose from being accomplished. She relied on medical evidence, including hospital and physician documentation with English translations, showing that a parent’s sudden, serious illness abroad had required her prolonged absence. On judicial review, she contended that the arbitrator’s decision was patently unreasonable because it never grappled with that evidence, and in one passage described the medical record as untranslated when it was not. She further argued that the hearing was procedurally unfair, since she appeared without a lawyer and through an interpreter, the arbitrator refused her request for an adjournment to submit further evidence, and no one asked her to explain her absence despite her raising it in her own testimony.

The Court’s Decision

The court held that the arbitrator’s failure to weigh the uncontroverted medical evidence of extenuating circumstances left the decision unsupported by the facts and the law, and therefore patently unreasonable. It found separately that refusing the landlord’s request for an adjournment, and failing to assist a self-represented party who gave evidence through an interpreter, breached the high degree of procedural fairness owed in Residential Tenancy Branch hearings. On the review application, the court held that the arbitrator applied the wrong legal test for new evidence and rejected the landlord’s further medical documentation without giving reasons. Both decisions were set aside, and the claim was remitted to the Residential Tenancy Branch for reconsideration on the existing record together with specified further evidence, leaving the outcome of the underlying claim still to be decided.

Key Lessons for Residential Landlords and Tenants

• Put the complete evidentiary record before the arbitrator at the first hearing. A request for review is confined to evidence that was genuinely unavailable earlier, so evidence a landlord could have gathered before the original hearing will not be considered on a later application, however compelling it may be.
• Do not assume a Residential Tenancy Branch decision is the final word. A decision that fails to weigh evidence relevant to the outcome can be set aside on judicial review as patently unreasonable, whichever side it favoured.
• Request an adjournment on the record when key evidence has not been fully addressed. The arbitrator’s refusal to allow the landlord to submit further evidence, combined with the failure to ask a self-represented, interpreter-assisted party to explain her absence, was itself found to be procedurally unfair.

The outcome of this matter turned on the medical evidence available to the arbitrator and on the fairness of the process by which it was assessed. A similar dispute may resolve differently.

ATAC LAW acts for landlords and tenants in Residential Tenancy Branch proceedings and on judicial review of Residential Tenancy Branch decisions in the Supreme Court of British Columbia.

Conducted by Raymond Jin, Associate Lawyer at ATAC LAW, who acted for the landlord on the petition for judicial review. His practice includes civil and commercial litigation.