The appeal by the B.C. Housing Commission (the “Commission”) of a decision of the Supreme Court reversing an arbitrator’s decision allowing the termination of Schubach’s tenancy was dismissed. The Court of Appeal held that a landlord of a complex of residential buildings was not entitled to terminate the tenancy of a tenant in one of the buildings because of acts committed in another of the buildings by a person that the tenant “permitted in or on the residential property or residential premises”.

27. January 2004 0

Administrative law – Landlord and tenant – Residential tenancy agreements – Termination – Conduct of tenant – Residential premises – Definition – Residential property – Decisions of administrative tribunals – Housing Commission – Jurisdiction – Judicial review – Standard of review – Patent unreasonableness

Schubach v. British Columbia (Housing Management Commission), [2003] B.C.J. No. 2664, British Columbia Court of Appeal, November 5, 2003, Finch C.J.B.C., Esson and Levine JJ.A.

The Commission owned eight buildings situated on one parcel of land having the same legal description. Schubach rented an apartment in one of the buildings. Schubach’s 18-year old son lived with her. The son’s girlfriend lived in another of the buildings. While visiting his girlfriend, the son became angry and damaged the girlfriend’s apartment and threatened to take the girlfriend’s unborn baby. The son was taken away by the police and sent to hospital for a psychiatric assessment. The Commission issued a Notice to End a Residential Tenancy to Schubach. Schubach applied to set aside the Notice. An arbitrator found that the Notice was validly given under section 36(1)(f) of the Residential Tenancy Act, R.S.B.C. 1996, c. 406. This section provides that a landlord may, at any time, give the tenant a notice of the end of the tenancy agreement where “the safety or other lawful right or interest of the landlord or other occupant in the residential property has been seriously impaired by an act or omission of the tenant or of a person permitted in or on the residential property or residential premises by the tenant …”. The Act defines “residential property” as “a building in which, and includes land on which, residential premises are situated”.

Schubach appealed the arbitrator’s decision to the Supreme Court. The chambers judge interpreted the reference in the definitions in the Act to “a building” and “a dwelling unit” as describing only a single building and the land surrounding it, not all of the buildings on the land. The chambers judge found that the landlord could not terminate the tenancy of a tenant at one building for an act done in another building. The Commission appealed the decision of the chambers judge.

The parties and the court agreed that the appropriate standard of review of the arbitrator’s decision was one of patent unreasonableness. The Court of Appeal found that the chambers judge correctly interpreted the meaning of “residential property” and “residential premises” as limited to a single building and not including a group of buildings. Applying the plain meaning of the words of the Act, the Court of Appeal held that it was patently unreasonable for the arbitrator to extend her jurisdiction beyond what the legislature intended. In the result, the appeal of the Commission was dismissed.

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