The case of the missing dollar: Arbitrator’s decision found procedurally unfair after reversing burden of proof

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Evidence – Burden of proof – Procedural requirements and fairness – Standard of review – Patent unreasonableness – Landlord and tenant – Residential Tenancy Agreements – Eviction

LaBrie v. Liu, [2021] B.C.J. No. 2751, 2021 BCSC 2486, British Columbia Supreme Court, December 22, 2021, S. Matthews J.

The petitioner sought to overturn a decision of the arbitrator made pursuant to the Residentiary Tenancy Act, S.B.C. 2002, c. 78, on the basis that the decision was procedurally unfair and patently unreasonable. One of the key issues was whether the arbitrator had reversed the burden of proof, effectively requiring the petitioner tenant to prove that she had paid her rent in full and on time.

The petitioner rented premises from the respondent landlord. The petitioner was required to pay $1,508.00 in monthly rent on the first of each month and $829.00 on repayment plan for unpaid render during the COVID-19 state of emergency, for a total of $2,337.00. The petitioner claimed that she paid the full amount of rent by electronic transfer on March 1, 2021. The respondent, on the other hand, asserted that she paid the amount late on March 10, 2021, and was one dollar short. The respondent ended the petitioner’s tenancy as a result of the late and short payment.

During the hearing in front of the arbitrator, the petitioner led viva voce evidence that she sent the electronic transfer on time and in the full amount. On the other hand, there was no indication that the respondent had led any evidence when he received the electronic transfer from the petitioner, only evidence when he deposited the amount. The key passage from the arbitrator’s decision was as follows:

While the tenant submit that they paid the full amount on March 1, 2021, I find little documentary evidence in support of their testimony. If the tenant initiated an electronic fund transfer on the first of the month as they claimed for the amount it would be reasonable to expect that the tenant could provide some documentary materials of banking statements to support their claim. None was provided. I find the tenant’s submission, unsupported by any evidence, to not be particularly persuasive.

The court found the arbitrator’s choice of language problematic and telling on the issue of burden of proof. In particular, the court noted that the arbitrator did not refer to any evidence as to the timing of the receipt of the electronic transfer, thus demonstrating that he was not considering the landlord’s burden of proof. In addition, as noted in the above passage, the arbitrator referred to the tenant as failing to provide documentary evidence to “support their claim”. As the court noted, the tenant had no “claim” to prove.

As a result, the court found that the arbitrator had, in fact, reversed the burden of proof. He did not require the landlord to prove that the tenant had not paid the full amount on time and accepted proof of a deposit of an electronic transfer, which is not proof of the date the transfer is sent or received. Finally, the court said he erred by accepting the amount of the deposit as proof of the amount that the tenant transferred without receiving evidence from the respondent as to the amount he was electronically transferred or whether the bank had levied a service charge to explain the difference, a point the tenant had raised.

In the end, the court concluded that the arbitrator failed to adequately consider the fundamental question of whether the rent was paid in full and on time and, in particular, why the amount deposited was one dollar short. The arbitrator gave no consideration to this issue and concluded that the petitioner made the payment late and withheld one dollar.

While the court went on to consider the other arguments advanced by the petitioner, the reversal of the burden of proof alone was sufficient to render the decision procedurally unfair. The court remitted the whole matter back to the Residence Tenancy Branch for reconsideration and redetermination.

This case was digested by Adam R. Way, 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 Adam R. Way at away@harpergrey.com.

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