Administrative law – Decisions of administrative tribunals – Residential Tenancy office – Landlord and tenant – Eviction – Conduct of tenant – Illegal activities – Criminal charges – Evidence – admissibility – past conduct – Hearings – Conduct of hearings – Judicial review – Procedural requirements and fairness
Williams v. Holywell Properties,  B.C.J. No. 2537, 2009 BCSC 1742, British Columbia Supreme Court, December 18, 2009, L.B. Gerow J.
The Applicant Williams (the “Tenant”) has rented premises from the Respondent Holywell Properties (the “Landlord”) since early 2006. The Landlord and the Tenant have had several disputes during the course of the tenancy. On July 28, 2009, the Landlord served the Tenant with a one-month notice to end tenancy for cause. The “cause” relied upon by the Landlord was that the Tenant had engaged in illegal activity that has or is likely to result in damage to the Landlord’s property. The illegal activity was that the Tenant had been charged with possession of stolen property (a neighbour’s property) and several other tenants signed a petition to have the Tenant evicted because of the charges.
The Residential Tenancy Office scheduled a hearing because the Tenant disputed that the Landlord had sufficient cause to evict him. A Dispute Resolution Officer (“DRO”) was appointed to hear from each of the parties and make a decision. At the hearing, the Tenant advised the DRO that his counsel (in the criminal proceedings) had advised him not to answer questions about the outstanding criminal charges. The Tenant declined to answer questions about the charges.
The DRO concluded that the Tenant was in possession of stolen property and, on that basis alone, the Landlord had sufficient cause to evict the Tenant. The Tenant brought this petition for judicial review in respect of the DRO’s decision.
In support of the petition, the Tenant argued that he was denied procedural fairness because he was not able to respond to the outstanding criminal charges. The Tenant also argued the DRO’s decision was patently unreasonable. The Court focused on the issue of procedural fairness and did not consider whether the DRO’s decision was unreasonable.
The Tenant argued that the DRO had, during the hearing, advised the Tenant that the outstanding criminal charges would go to credibility only. The DRO then used the substance of those charges to conclude that the eviction was appropriate. The Court considered whether, in all of the circumstances, the DRO acted fairly.
The procedure in the DRO’s hearing consisted of a written application with supporting documentation and then a hearing by conference call. The hearing was adjudicative and resembled the judicial process. The DRO’s decision was an important one to both the Tenant and the Landlord and there is a very limited statutory appeal process.
The high degree of fairness owed by the DRO was not discharged for several reasons. First, the Tenant was told that the outstanding charges would only go to credibility and would not be the basis for the decision. Second, the DRO acknowledged that he was aware that, based on the advice of counsel, the Tenant would not be commenting on the outstanding charges. Third, the DRO relied upon the Tenant’s failure to comment about how he received the neighbour’s property, in order to conclude that the Tenant either knew or ought to have known it was stolen. For these reasons, the Tenant did not have a meaningful opportunity to present his case fairly and fully. The Tenant’s application was allowed and the matter was remitted to the Residential Tenancy Office to be adjudicated by a different DRO.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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