Administrative law – Decisions of administrative tribunals – Residential Tenancy office – Landlord and tenant – Residential tenancy agreements – Conduct of tenant – Termination – Tenant’s goods – Damages – Judicial review – Evidence – Jurisdiction – Standard of review – Patent unreasonableness – Test
Fok v. British Columbia (Residential Tenancy Act, Dispute Resolution Officer),  B.C.J. No. 2229, 2010 BCSC 1613, British Columbia Supreme Court, November 16, 2010, R.D. Punnett J.
The landlords and tenants entered into a residential tenancy agreement in January 2009, on a fixed one year term. A few months later, the landlords discovered that the tenants were operating an unlicensed daycare at the home and a dispute followed wherein the tenants refused to obtain appropriate comprehensive general liability insurance. The landlords attempted to terminate the tenancy and several disputes arose around unpaid rent, loss of rental income, bank charges and an attempt by the landlords to obtain an order for possession. In January 2009, an order of possession and a monetary award were made in favour of the landlords. The tenants were ordered to provide vacant possession to the landlords within 48 hours. However, the tenants did not vacate the property and refused to provide their keys to the landlords.
After the 48 hour notice period had expired, the landlords attended at the home and said that they found the locks had been changed. The tenants denied changing the locks. The tenants’ nanny was still inside the home and advised the landlords that the tenants were filing for a review of the order of possession.
That review was denied and the original order of possession remained in force. There was then a dispute about whether the tenants had really left the home, and whether all of their possessions had been removed. The landlords did not seek confirmation from the tenants that they had vacated the property, but returned to the property on July 22, 2009 and said that they found the house apparently vacant. The landlords gained entry to the home, but discovered some of the tenants’ possessions inside. They advised the tenants that possessions were still inside the house and were told that the tenants would attend to retrieve them. The tenants did not retrieve their belongings. The landlords sought direction from the Residential Tenancy office and, about a week later, attended and took an inventory of the items that remained in the home. The landlords opened a sealed cardboard box that was among the possessions, and proceeded to take an inventory and photographs of the contents. The tenant later stated that she had returned to the house a few days earlier and placed a jewellery box containing several items of jewellery into the sealed cardboard box. The landlords denied finding any jewellery box.
Subsequently a dispute resolution officer with the Residential Tenancy Branch ordered the landlords to pay compensation, in the amount of about $12,000, for the missing jewellery.
The court considered the appropriate standard of review in the circumstance by reference to the Residential Tenancy Act, S.B.C. 2002, c. 78 and to the Administrative Tribunals Act, S.B.C. 2004, c. 45 (“ATA”). The court held that if the issue is one of fact or law, the standard of review, under the ATA, is patent unreasonableness as defined at common law. Although judicial review at common law no longer invokes the standard of patent unreasonableness, that standard still applies under the ATA (Manz v. Sundher, 2009 BCCA 92). The test for patent unreasonableness is whether it is apparent that the decision is clearly irrational, or not in accordance with reason. The test is a very strict one. The difference between patent unreasonableness and reasonableness is the immediacy or obviousness of the defect in the decision. This is a restricted scope of review. The courts must be careful to focus on whether there is a rational basis for the decision of the tribunal, rather than whether or not the court agrees with the outcome.
If the matter relates to an issue of natural justice or procedural fairness, the test is whether the tribunal acted fairly in all the circumstances, reviewed on a standard of correctness.
The court then turned to the question of what evidence could be relied on in an application for judicial review. A judicial review application is based on the record before the tribunal, which includes a document by which the proceeding is commenced, a notice of hearing in the proceeding, an intermediate order made by the tribunal, documents produced in evidence at a hearing before the tribunal, transcripts, the decision of the tribunal, and any reasons given for the decision (Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 1).
There was an issue about whether affidavits that were filed, but that were not placed before the officer or were disputed as to whether or not they were placed before the officer, properly formed part of the record. The court referred to the decision in Karbalaeiali v. British Columbia (Deputy Solicitor General), 2006 BCSC 13, which held that judicial review is concerned with assessing evidence that was before the tribunal and not additional evidence that is tendered after the fact. Although extrinsic evidence may be admissible to show a lack of jurisdiction or a denial of natural justice, other fresh evidence is not permissible. The material filed by the landlords included facts that could have been, but were not, provided to the dispute resolution officer, and were therefore not admissible on the review. The affidavit material would only be admissible for consideration of jurisdiction and natural justice issues.
There was evidence before the dispute resolution officer on the question of whether the landlords’ claim against the tenants for costs of the locksmith and repairing and cleaning the home ought to be dismissed. Her decision was not patently unreasonable and locksmith repairs and maintenance costs would not be refunded to the landlord.
The patent unreasonableness standard of review applied to the question of whether the dispute resolution officer acted “without jurisdiction” in allowing the tenants’ claim for jewellery against the landlords. The court held that this was not a true jurisdiction issue and that it was available to the dispute resolution officer to make the findings she did.
The court then considered whether the dispute resolution officer failed to observe the principles of natural justice or procedural fairness in the hearing. The matter was an adjudicative one, with an internal appeal and was an important decision that affected both the tenants and the landlords. Thus, a high degree of procedural fairness was required. The landlords argued that the dispute resolution officer should have adjourned the hearing on her own motion when it became apparent that the landlords did not provide their inventory list as part of the evidence on the hearing, although they had submitted it into evidence on a previous hearing before a separate panel member. However, there was no request for an adjournment during the hearing itself. The court held that it was not incumbent on a dispute resolution officer to raise the issue of an adjournment. The officer was entitled to proceed on the basis that the parties had been properly notified of the rules and what was required for the hearing and, therefore, they had been given an opportunity to “put forward their views and evidence fully and have them considered by the decision-maker” (Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817). The dispute resolution officer was entitled to make the findings she did with respect to loss of the jewellery. The dispute resolution officer was in the best position to make these findings since she had heard the parties, and assessed their credibility. Although the court may well have reached a different conclusion, its role is only to determine whether there is any evidence to support the conclusion of the decision-maker.
The court identified an error made by the dispute resolution officer in terms of referencing the wrong section of the Residential Tenancy regulation. However, the error in referring to one section as applicable to another, did not change the factual finding that the unit had not been vacated, and therefore the officer had made an appropriate finding with respect to determining that the tenants’ loss happened solely because of the landlords’ violation of the Residential Tenancy legislation. Her decision was not held to have been patently unreasonable in this respect.
The dispute resolution officer’s decision that the landlords had failed to comply with their obligations with respect to a tenant’s personal property and their duty of care in dealing with such property, was not patently unreasonable. The court could not find that the decision with respect to the value of the jewellery was patently unreasonable, nor that there was any error in the determination that the tenants had complied with the Residential Tenancy Act obligations to take reasonable steps to minimize their loss. There was not found to be any causal connection between the landlords’ assertion that the tenants should have ensured the windows were closed, and the loss that was occasioned when the jewellery went missing.
The court commented that the landlords’ were really seeking a reconsideration of the wisdom of the dispute resolution officer’s decision. This is not the court’s role on judicial review. In Re: Starbreak Enterprises Ltd., 2003 BCSC 1, the court stated, “… This court acts in a supervisory role to ensure that the decision-making body … does not act unlawfully in the sense of acting outside of or in abuse of its jurisdiction to act. In other words, this court cannot reconsider the decision made and elect to substitute its judgment ….”
The petition for judicial review was dismissed with costs to the tenant.
To stay current with the new case law and emerging legal issues in this area, subscribe here.