The COVID-19 pandemic does not necessarily constitute “extenuating circumstances” under the Residential Tenancy Act

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Delay – Standard of review – Patent unreasonableness

Mawani v. Dobbs, [2022] B.C.J. No. 1388, 2022 BCSC 1285, British Columbia Supreme Court, July 29, 2022, B.J. Norell J.

The petitioners, Nawaz and Shelina Mawani, sought judicial review pursuant to the Judicial Review Procedure Act, RSBC 1996, c 241 (“JRPA”) of a decision of an arbitrator made under the Residential Tenancy Act, SBC 2002, c 78 (the “RTA”). The Mawanis had been ordered to pay the respondents, Mark Dobbs and Cheryl Hughes, $48,840 representing 12 months’ rent and a $100 filing fee, as a result of the Mawanis giving the Tenants two months’ notice to end the tenancy of the premises. The petition was brought nearly 11 months after the arbitrator’s decision was made.

The Mawanis had entered into a contract to purchase the premises on June 25, 2020 and had given Mr. Dobbs and Ms. Hughes two months’ notice through the former owner that the Mawanis or a close family member were to occupy the premises pursuant to the RTA. However, neither the Mawanis nor a close family member occupied the premises. As a result, pursuant to the RTA, the Mawanis were liable to pay Mr. Hughes and Ms. Dobbs 12 months’ rent unless they could demonstrate that extenuating circumstances prevented them from fulfilling the purpose of ending the tenancy. When no one occupied the premises, Mr. Dobbs and Ms. Hughes brought proceedings under the RTA for compensation equivalent to 12 months’ rent.

The Miwanis argued that the extenuated circumstances included the COVID-19 pandemic and Mr. Hughes and Ms. Dobbs refusal to let the Mawanis into the premises due to the pandemic. The Mawanis could only view the premises from the outside. At issue was whether the arbitrator erred in concluding that there were no extenuating circumstances and whether the petition for judicial review should be dismissed for delay.

In deciding the issue of delay, Justice Norrell considered the importance to the parties, prejudice and hardship. She concluded that the subject was important to both parties. Both parties claimed that they suffered prejudice and hardship. The Mawanis argued that they would be prejudiced if the petition was not heard on its merits as a significant amount of money was in issue. The potential prejudice to Mr. Hughes and Ms. Dobbs was that they would have to wait for judgement. It was found that the potential prejudice was greater to the Mawanis than Mr. Hughes and Ms. Dobbs.

The only reason that the Mawanis provided for the delay was that the Residential Tenancy Branch (“RTB”) did not respond to their request for a copy of their file in a timely manner. There was no evidence of why the Mawanis did not follow up earlier with the RTB. Nor was there any explanation given as to why the Mawanis could not file a petition without the complete file from the RTB.

It was found that there was unreasonable delay. The application for judicial review was dismissed on that ground alone. Justice Norrell went on to find that the arbitrator’s decision was not patently unreasonable and that the rationale of the arbitrator was transparent, clear and reasonable.

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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