Vancouver tenant’s $82K wrongful eviction award restored after appeal

Downtown Vancouver is seen from the city's west side in this file photo. (Shutterstock.com)

B.C.’s highest court has restored an $82,000 award to a tenant who was wrongfully evicted from an 8,000-square-foot home in Vancouver’s affluent Shaughnessy neighbourhood.

Neal McLennan took his landlord Xi Chen to the Residential Tenancy Branch in August 2023 after concluding that she had not fulfilled the purpose of the eviction notice she gave him in September of the previous year, which stated that she or a close family member intended to move into the rental home.

An RTB arbitrator found in McLennan’s favour, awarding him $82,380—the equivalent of 12 months’ worth of his $6,865 monthly rent—plus a reimbursement of his $100 RTB filing fee.

Earlier this year, a B.C. Supreme Court judge overturned the RTB ruling in a judicial review requested by the landlord. The judge found that the RTB hearing had been “procedurally unfair” to Chen.

• Read more: Court overturns $82K award to evicted Vancouver tenant, rules process was ‘procedurally unfair’ to landlord

McLennan appealed, asking the B.C. Court of Appeal to overturn the lower court’s decision and restore the original RTB decision.

In a decision issued Friday, a three-judge appeal court panel did just that.

The property

The lower court decision does not specify the address of the property, describing it only as “approximately 8,000 square feet” and located on a one-acre lot on Cartier Street in Vancouver. There is also a separate coach house on the property, but McLennan rented the main home.

The details suggest the home is located in Shaughnessy, as nearly all addresses on Cartier Street outside of that neighbourhood have smaller footprints and more modest dwellings on them.

The decision indicates McLennan began renting the house in October 2016, paying $6,000 a month in rent. In September 2022, Chen issued a two-month notice to end tenancy for landlord’s use. McLennan moved out in January 2023, by which time his rent had risen to $6,685 a month.

B.C.’s Residential Tenancy Act allows landlords to evict tenants without cause if the landlord or a close family member intends to occupy the rental unit.

The law requires landlords to act in good faith when making such an eviction, and to occupy the unit within a reasonable amount of time and remain there for at least a year, though this required time frame took effect last year. When McLennan was evicted, the minimum time a landlord was required to occupy the property was six months.

Landlords found to be acting in bad faith can see their eviction notices cancelled—if the tenant hasn’t moved out yet—or be ordered to pay the tenant 12 months’ worth of their former rent. The same penalty applies for landlords who fail to meet the occupancy requirements.

Procedural fairness

The problem the B.C. Supreme Court judge identified with the RTB decision was one of procedural fairness. Specifically, the judge found the RTB arbitrator had unfairly dismissed the landlord’s witness during the hearing.

While the arbitrator said the witness could be called back if she was needed, neither the arbitrator nor the landlord’s lawyer ever called the witness back.

“It is difficult to find that the landlord’s right to be heard has been met when she did not have an opportunity to present evidence that she wanted the arbitrator to hear,” the lower court decision reads.

Writing for the appeal court, Justice Karen Horsman took a different view.

Horsman’s decision reproduces part of the transcript of the hearing, underlining multiple occasions on which the arbitrator asks Chen’s counsel if there are any additional submissions the landlord would like to make.

Dismissing a witness at the start of “an adversarial hearing process” is something that happens “routinely,” Horsman noted, writing that this is done “to ensure that their evidence is not influenced by the evidence of other witnesses.”

Chen’s witness is referred to as “Cynthia” in the appeal court decision.

“The chambers judge concluded that it did not matter whose responsibility it was to ensure that Cynthia provided evidence,” Horsman’s decision reads. “I disagree. The question of who had responsibility to recall Cynthia is at the heart of the allegation of procedural unfairness.”

“The responsibility to recall the witness was that of the landlord and not the arbitrator. A dispute resolution proceeding before the RTB is adversarial and party driven. The landlord was represented by counsel who had every opportunity to request that Cynthia be recalled to provide evidence. While the chambers judge inferred that the arbitrator forgot about Cynthia, it was for the landlord, through her legal counsel, to decide how best to present her case. The landlord’s failure to request that Cynthia be recalled is not a breach of the arbitrator’s duty to provide a fair hearing process.”

The appeal judge further noted that the lower court judge had misapprehended the presence of McLennan’s spouse on the call, describing her as the tenant’s “witness,” and contrasting her treatment to that of Cynthia.

While the tenant’s spouse—referred to in the decision as “Ms. Ross”—was permitted to remain on the line throughout the hearing, “it is clear from the transcript that the arbitrator considered Ms. Ross as having a status akin to that of a party” to the dispute, according to Horsman’s decision.

“This is understandable given that Ms. Ross is married to the tenant and they lived in the rental unit together,” the decision reads. “Ms. Ross was on the same telephone line as the tenant when he dialled into the hearing. While it may have been incorrect for the arbitrator to refer to Ms. Ross as an ‘applicant,’ this error was of no consequence. Ms. Ross did not give evidence or make submissions. The fact that the arbitrator understood Ms. Ross to be a party rather than a witness was not indicative of unequal treatment of the witnesses, as the landlord argues.”

The three-judge appeal court panel unanimously agreed that the appeal should be allowed and the RTB decision restored.