A tenant in a Metro Vancouver Housing Corporation townhouse applied for judicial review of the decision of a dispute resolution officer who found that a 10-day notice to end tenancy for unpaid rent, under Section 46(1) of the Residential Tenancy Act should be upheld with the result that the tenant would lose possession

23. October 2012 0

Administrative law – Decisions of administrative tribunals – Residential Tenancy office – Discretion of court – Landlord and tenant – Residential tenancy agreements – Termination – Vacation notices – Conduct of tenant – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Patent unreasonableness – Remedies – Relief from forfeiture

Ganitano v. Metro Vancouver Housing Corp., [2012] B.C.J. No. 1834, 2012 BCSC 1308, British Columbia Supreme Court, September 5, 2012, C. Lynn Smith J.

A tenant (“Ganitano”) in a Metro Vancouver Housing Corporation (“MVHC”) townhouse, applied for judicial review of the decision of a dispute resolution officer who found that a 10-day notice to end tenancy for unpaid rent, under Section 46(1) of the Residential Tenancy Act (the “Act”) should be upheld such that an order of possession favouring the MVHC would issue.

Ganitano. who had been a long-time resident of her townhome where she lived with her sons, failed to pay rent on time in February 2009. MVHC issued her a 10-day notice to end tenancy for unpaid rent. Due to problems with government funding that Ms. Ganitano was receiving (the government department did not deliver the funds to her on schedule), she failed to meet her deadline for paying full rent. However, Ms. Ganitano also did not apply for dispute resolution within five days of the 10-day notice, as required by the Act. Ms. Ganitano paid $800.00 to MVHC on February 11, 2009, and the balance of $262.00 on February 18, 2009, whereas the deadline was February 11, 2009. MVHC accepted the funds for use and occupation but would not accept them as rent.

Ultimately, a hearing took place before a dispute resolution officer of the Residential Tenancy Branch. The dispute resolution officer found that the 10-day notice was effective against Ganitano, and that there was no ability to extend the time limit, or to make an application for dispute resolution to dispute the notice to end tenancy beyond the effective date of the notice. Thus, the 10-day notice could not be set aside.

Even if there were discretion vested in the decision-maker, the dispute resolution officer would not have used that discretion to extend the time limit. Ganitano had a long history of receiving notices to end tenancy for unpaid rent, and she should have been well-aware of the process for cancelling or disputing such notices.

On judicial review, the Court determined that there were procedural fairness issues to be reviewed according to whether or not fairness was accorded to Ms. Ganitano. With regard to the substantive grounds for Ganitano’s judicial review, a standard of patent unreasonableness would be applied due to a privative clause in the Act, as well as application of provisions of the Administrative Tribunals Act.

In considering procedural fairness, the Court noticed that Ganitano’s continued ability to live in her residence of 28 years was a matter of serious importance to her as a party. A high standard of procedural fairness ought to apply in such a Residential Tenancy Branch hearing. Ganitano was afforded an oral hearing, where she was represented by an agent who made written and oral submissions on her behalf. The MVHC’s materials were disclosed to her in advance of the hearing. The record supported that the dispute resolution officer had acted fairly in the circumstances, and that Ganitano had been afforded the requisite level of procedural fairness.

With respect to substantive grounds for judicial review, there was evidence to support the findings made by the dispute resolution officer and it could not be said that the conclusions were openly, clearly, or evidently unreasonable.

Ganitano argued that she should be granted relief from forfeiture pursuant to Section 24 of the Law and Equity Act, which provides that the Court may relieve against all penalties and forfeitures and, in granting the relief, may impose any terms as to costs, expenses, damages, compensations, and all other matters that the Court thinks fit. However, the Supreme Court of Canada has held that Courts do not have discretion to relieve against statutory penalties or forfeitures. Courts do have an authority to relieve against penalties imposed under contract. A residential tenancy is a contract regulated by statute and, as such, “occupies a middle ground”. The Saskatchewan River Bungalows decision indicated that relief from forfeiture may be available for a statutorily regulated contract of insurance, even where such relief was not expressly provided for in the Insurance Act.

British Columbia Courts have found that relief against forfeiture is available in statutorily regulated tenancy contracts. However, the issue is a complicated issue of law which depends upon the proper interpretation and application of the Residential Tenancy Act and the facts of each case. There appears to be binding law that the Court has jurisdiction to grant equitable relief from forfeiture in the case of non-payment of rent on a lease governed by the Act. Therefore, the Court considered whether to exercise jurisdiction to grant relief from forfeiture for Ganitano.

As a single mother of limited means who had lived in the townhome for 28 years, and a good tenant, Ganitano was granted relief from the consequence of losing her tenancy with respect to the 10-day notice and the first cause notice issued to her. The notices were cancelled and her tenancy was reinstated.

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