The Court granted a petition for judicial review of a decision of the Residential Tenancy Branch, which had ordered the Respondent landlord to pay $1,500 in damages to his former tenant, the petitioner. The petitioner had complained that his landlord had unlawfully disposed of his personal possessions while he was away from his apartment. The statutory obligations of the landlord under section 25(1) of the Residential Tenancy Act, in relation to abandoned goods, did not apply to the facts. The dispute resolution officer’s decision to award damages based on the irrelevant consideration of non-existent statutory breaches by the landlord, without considering the tenant’s rights as a bailor at common law, was patently unreasonable.

Administrative law – Decisions of administrative tribunals – Residential Tenancy office – Landlord and tenant – Residential tenancy agreements – Termination – Tenant’s goods – Bailee – Damages – Judicial review – Compliance with legislation

Bello v. Ren, [2009] B.C.J. No. 2323, 2009 BCSC 1598, British Columbia Supreme Court, November 23, 2009, L. Fenlon J.

The Petitioner was the former tenant of the Respondent landlord. The landlord had obtained an order of possession, directing the tenant to vacate his rental unit within 48 hours of service of the order. Following service of the order, the tenant was admitted to hospital on an emergency basis for surgery. He was then served with a writ of possession, obtained by the landlord. While the tenant was in hospital, the landlord personally removed all of his belongings and put them in storage in a locker room in the basement of the apartment building. The tenant then contacted the landlord wanting to arrange for pick-up of his belongings. The landlord would only permit the tenant to remove all of his property in one trip. When the tenant could not take all of his belongings at once, the landlord disposed of all remaining property at the dump. The tenant estimated the value of the disposed-of items at $41,051.

The dispute was brought before the Residential Tenancy Branch. A dispute resolution officer awarded the tenant $1,500 in damages, on the basis that the landlord did not hire a bailiff/sheriff to perform the seizure and sale of the tenant’s property, as required by the terms of the writ of possession. She found that the tenant was entitled to a monetary order for the loss of his goods, and allowed a nominal value of $1,500.

On judicial review, the Court considered whether the decision to award the tenant damages of $1,500 was patently unreasonable, as defined in section 58(3) of the Administrative Tribunals Act.

The dispute resolution officer had found that the landlord had breached certain statutory obligations under section 25(1) of the Residential Tenancy Regulations, relating to abandoned property. The Court found that the tenant’s absence from his apartment, for three to five days due to an emergency hospitalization, did not constitute an abandonment of goods within the meaning of section 24(1) of the Regulations. Thus, the statutory obligations of the landlord under section 25(1) in relation to abandoned goods did not apply to the facts in this case. It followed that the dispute resolution officer’s decision to award damages based on the landlord’s breach of those regulations was a decision based on irrelevant factors. The decision was, therefore, patently unreasonable.

Absent abandonment, the landlord did not have statutory authority to remove the tenant’s goods from his apartment. The landlord was therefore a bailee at common law and owed a duty of care to the tenant. Disposing of the tenant’s goods by taking them to the dump, particularly when he knew that the tenant wanted those goods and was trying to retrieve them, was a gross breach of that duty. The principle of “restitutio in integrum” governs damages for breach of a bailee’s duty of care at common law: damages are awarded to put the injured bailor in the position he was in before the goods were lost or damaged. The dispute resolution officer had valued the majority of the tenant’s property at $1,500 based on the irrelevant consideration of non-existent statutory breaches by the landlord, and without considering the tenant’s rights as a bailor at common law. This was a patently unreasonable decision.

In the result, the decision of the Residential Tenancy Branch was set aside and the dispute remitted to the Branch for rehearing.

To stay current with the new case law and emerging legal issues in this area, subscribe here.