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RESIDENTIAL TENANCIES - Termination by landlord

Tuesday, June 11, 2019 @ 6:26 AM  


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Appeal by the landlord from a decision setting aside an order for possession issued by the Residential Tenancy Branch. The landlord served the tenant with notice to terminate to renovate the unit. The tenant disputed the notice on the basis it was not made in good faith and the landlord did not have all the necessary permits for the proposed work. The arbitrator found that the landlord required vacant possession to have the intended work performed and that the landlord truly wished to renovate the unit. The chambers judge concluded the arbitrator had failed to consider an offer made by the tenant at the hearing to vacate the unit at her own expense for the duration of the necessary repairs. The chambers judge was satisfied there was an issue of an ulterior motive in this case and, therefore, he considered the onus to fall on the landlord to prove an absence of bad faith. He concluded the arbitrator had erred in issuing the Order of Possession despite the landlord not having all the necessary permits for the proposed work. The landlord argued the chambers judge erred by substituting his own views for the arbitrator’s and thus did not afford the deference to the arbitrator called for.

HELD: Appeal dismissed. The arbitrator was clearly aware of the tenant’s offer to vacate the premises, but the offer was irrelevant to the question before the arbitrator. It was not irrational for the arbitrator to conclude the landlord met the criteria set out in the Residential Tenancy Act without giving any weight to the tenant’s desire to return to the unit after the renovation. The arbitrator was not required to expressly deal with the evidence the tenant was willing to find alternate accommodation for the duration of the work. While the arbitrator found the landlord truly intended to do the renovations described in the evidence, he did not expressly address the tenant’s evidence of an ulterior motive. The award was patently unreasonable because it failed to take the statutory requirement of good faith into account. The landlord had the permits and approvals required by law to do some, but not all, of the work it contemplated. As the chambers judge noted, the arbitrator acknowledged the deficiency of the electrical permits but appeared simply to have failed to apply s. 49(6) of the Act to determine whether that deficiency went to whether the renovations or repairs required vacant possession.

Aarti Investments Ltd. v. Baumann, [2019] B.C.J. No. 840, British Columbia Court of Appeal, P.M. Willcock, R. Goepel and G. Dickson JJ.A., May 14, 2019. Digest No. TLD-June102019005