An arbitrator's decision to uphold a Vancouver landlord's notice to end a tenancy will go for judicial review following a petition to Canada's highest court.
Tenant Marian Kurvers petitioned a decision to uphold her landlord's (Strathmore Lodge Co.) one-month notice to end the tenancy for cause at a hearing at the Residential Tenancy Branch (RTB) on Nov. 6, 2024.
The judicial review of Kurvers vs. Strathmore Lodge Co. was brought before the Honourable Justice Morishita at the B.C. Supreme Court during several hearings in December 2024 and January 2025.
The tenant has been renting the unit in Downtown Vancouver since Jan. 1, 2019, and documents show the landlord said they received multiple complaints about her behaviour. The complaints included the "unauthorized installation of duct tape" that obstructed ventilation and created a safety hazard, breaching other residents' right to quiet enjoyment via an illegal activity (recording them), and non-compliance with requests for access to the unit to address maintenance issues on Aug. 6 and 26, 2024.
The landlord attempted to personally serve the tenant a one-month notice to end the tenancy for cause on Sept. 24, but the tenant said she couldn't accept it due to her dyslexia and would need time to review it. The landlord also emailed a copy of the notice to the renter on the same day.
According to sections 44 and 90 of the Residential Tenancy Act (RTA) regulations, a notice to end tenancy is deemed to be received the third day after being sent to an email address and five days after being mailed.
The notice was considered "served" to the tenant on the following dates, Sept. 24, (by personal service); Sept. 27, (by email service); and Sept. 29 ( by registered mail).
The tenant believed she could dispute the notice after the mail-in deadline
According to s.74(4) of the RTA, tenants must dispute the notice 10 days after they are served. In this case, the arbitrator said this was Oct. 4. However, the tenant thought she could pick the method she was served by for her deadline. Using the mail deadline, she believed she could file for dispute resolution as late as Oct. 9.
The renter testified that she didn't install duct tape in the unit and alleges the landlord put it in the kitchen and bathroom, according to documentation. She also testified that the landlord bullied and harassed her. She said the landlord also failed to make repairs and remediation in the unit and refused to address complaints about cigarette smoke.
The tenant claimed that the landlord was attempting to evict her based on "false and irrational allegations made against [her] designed to evict her instead of doing repairs" in her application. She also sought an order to allow her to reduce rent for repairs, services, or facilities allegedly agreed upon but not provided and for the landlord to make repairs and provide necessary facilities.
The arbitrator dismissed all of the tenant's claims except the order to end the one-month notice to the tenancy because the rules of procedure authorized her to dismiss unrelated claims without leave to reapply.
In her ruling, the arbitrator noted that the tenant filed the claim to end the tenancy late, and the tenant could either take the settlement agreement, meaning they would move out on Nov. 30, or the arbitrator could issue an order of possession. If the renter took the second option, the arbitrator could issue the order in as few as seven days.
The tenant reluctantly chose the settlement agreement. In the transcript from the hearing, she said, "Well, I don’t really have a choice then do I, I have to take the 30th November?"
Residential Tenancy Branch denies tenant's petition for review of the case
On Dec. 12, Adjudicator S. Smit issued a Review Consideration Decision following a petition from the tenant to review the hearing due to potential fraud, procedural error, and an undetermined issue. Smit ruled that the parties settled during the hearing without unresolved issues.
Having exhausted available options in the RTB, the tenant filed a petition for judicial review with the B.C. Supreme Court on Nov. 26. In her claim, the renter says the arbitrator failed to listen to her landlord's mistreatment of her and was unfair in the way they broached the deadline for filing the claim.
Finally, the tenant said she felt pressured by the arbitrator to accept the settlement agreement because she may have been issued a seven-day notice instead.
B.C. Supreme Court Justice Morishita cited a similar case to provide their ruling. In Sadahy v. EMV Holdings Corporation, 2016 BCSC 262, Justice Veenstra said an arbitrator’s decision to record the decision was up for judicial review. The tenant also failed to meet the deadline but said the arbitrator did not listen to her evidence leading to procedural unfairness. The landlord and tenant signed off on a settlement.
In this precedent case, Veenstra said the arbitrator's decision to sever and dismiss the tenant's claims was "procedurally unfair." The decision was also made at a "very early stage of the hearing" and attempts to be heard were dismissed.
Similarly, Morishita ruled that the Kurvers v. Strathmore Lodge Ltd. RTB hearing was also "conducted in a manner that was not procedurally fair" and did not allow space for the tenant to defend herself.
The judge added that the hearing was just over 36 minutes long, with introductory matters taking up the first 14 minutes. After eight minutes of service-related questions, the arbitrator asked more substantive questions after 22 minutes. At the 25-minute mark, they informed the tenant she'd missed the crucial deadline and had only two options: to accept the settlement or face a possible one-week eviction notice. However, there was actually a third option: for the arbitrator to extend the deadline for when the renter filed her dispute resolution to Oct. 9 (the date she filed her application).
"It may very well be that the petitioner’s reasons for filing her dispute late did not amount to exceptional circumstance; however, at no point in the hearing did the Arbitrator mention that the petitioner could apply for an extension of the deadline," they noted in their ruling.
Morishita said it can be useful for arbitrators to push for settlements but they mustn't "exert undue pressure," particularly for self-represented parties. In this instance, she accepted the tenant's evidence that she felt she had to settle with the landlord.
The judge granted judicial review due to a lack of procedural fairness and the arbitrator's decision was set aside on Jan. 17, 2025.
