The standard of review for jurisdictional questions under the Manufactured Home Park Tenancy Act is patent unreasonableness

Administrative law – Decisions reviewed – Residential Tenancy office – Jurisdiction – Dispute resolution schemes – Judicial review – Privative clauses – Procedural requirements and fairness – Standard of review – Correctness – Patent unreasonableness –  Landlord and tenant – Remedies – Injunctions

McDonald v Creekside Campground and RV Park, [2020] B.C.J. No. 2182, 2002 BCSC 2095, British Columbia Supreme Court, December 31, 2020, H. MacNaughton J.

The petitioners sought an order setting aside the decision of the arbitrator, appointed by the Residential Tenancy Branch (the “RTB”), declining jurisdiction over their complaint. The petitioners wished to have their tenancy recognized under the Manufactured Home Park Tenancy Act, SBC 2002, c 77 (the “MHPTA”). The MPTA regulates tenancies for occupancy of a manufactured park home as a permanent residence.

The petitioners had filed an application for dispute resolution with the RTB to dispute a guest fee. The MHPTA regulation prohibits guest fees. The arbitrator concluded that the petitioners had a license to occupy the site and not a tenancy. As a result, the guest fee was not dealt with as the MHPTA did not apply.

At issue was the applicable standard of review of RTB decisions, whether procedural fairness was complied with, whether the decision should be set aside, and if so, what directions should be made.

Applying Canada (Minister of Citizenship and Immigration) v Vaivlov, 2019 SCC 65, it was held that the standard of review for jurisdictional questions was patent unreasonableness. Furthermore, the MHTPA contained a privative clause. The standard of review with respect to procedural fairness was found to be fairness.

It was held that the arbitrator’s decision was patently unreasonable. The arbitrator failed to consider when the evidentiary burden had shifted to the respondents upon the petitioners establishing that they had exclusive possession of the site and that the petitioners paid a fixed amount. As well, the arbitrator failed to consider relevant evidence and only applied some factors, which would have been determinative of whether the MHTPA applied.

It was held that the petitioners were denied procedural fairness as well. The petitioners were not provided with a complete copy of the RV park’s rules. In the decision, the arbitrator relied upon a rule that was not in the petitioner’s possession.

The matter was remitted back to the RTB for redetermination. The interim injunction prohibiting the petitioners’ tenancy being terminated or their RV being towed pending redetermination was extended until the RTB had reached a decision on jurisdiction.

This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Deanna C. Froese at dfroese@harpergrey.com.

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