Case Study: Difficulties with the Residential Tenancy Branch and the Judicial Review Process

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The Residential Tenancy Act[1] (RTA) is provincial legislation that defines the relationship between landlords and residential tenants. Both landlords and tenants have a number of rights and responsibilities under the RTA, one of which is the protection of the tenant’s right to quiet enjoyment.

Section 28 of the RTA states that:

A tenant is entitled to quiet enjoyment including, but not limited to, rights to the following:

(a) reasonable privacy;

(b) freedom from unreasonable disturbance;

(c) exclusive possession of the rental unit subject only to the landlord’s right to enter the rental unit in accordance with section 29 [landlord’s right to enter rental unit restricted];

(d) use of common areas for reasonable and lawful purposes, free from significant interference.

If a tenant’s right to quiet enjoyment (or any other right covered by the RTA) is breached, that person may apply for damages at the Residential Tenancy Branch (RTB). A RTB hearing will be scheduled where the landlord and tenant will each be able to voice her or his side of the story and a dispute resolution officer (DRO) will provide a decision on the dispute. The DRO’s decision is subject to judicial review at the British Columbia Supreme Court. What this means is that the party for whom an adverse judgment is found can appeal the decision of the DRO to a court. The judicial review process is a complex proceeding that requires time, resources and following the rules of court.

Overall, the dispute resolution process outlined by the RTB should be a fair, relatively inexpensive process, that is accessible to common landlords and tenants. Unfortunately, the reality of the situation in Vancouver is that landlord-tenant relationships are not balanced. Financial and informational differences mean that landlords and developers have the ability to ignore their duties as landlords under the RTA and fight the decisions of the RTB rather than attempting to achieve equitable and legally required results.

My Experiences

It is against this background that I became involved in a residential tenancy case at Pivot Legal Society, working with Scott Bernstein and Fathima Cader. I am a UBC law student and a research assistant with the Housing Justice Project at UBC. Professor Margot Young, my supervisor, encouraged me to attend a legal clinic hosted by Pivot at the Bosman Hotel. It was there that I first met our “tenant” who was in the midst of a residential tenancy dispute with his landlord, who had renovated the apartments above and on either side of the tenant over a period of many months.

When we first met, the tenant had already completed a dispute resolution hearing at the RTB. He did so without representation by legal counsel, facing a well resourced landlord with a lawyer arguing the landlord’s case. The tenant had applied for damages of close to $5000 to recover the lost value of his tenancy during the renovation period. The DRO granted the tenant $700 in damages for his loss of quiet enjoyment. Technically a “win” for the tenant, in reality it was more of a loss, as the damages represented less than one month rent. The landlord applied for judicial review of the $700 damage award, the tenant did not know what to do next.

The Judicial Review Process

It is entirely within the landlord’s rights to renovate, and thus renovations are not inherently illegal if done correctly. However, renovations come at a cost, in this case the cost was a reduction in the living conditions of the tenant and a breach of the tenant’s right to quiet enjoyment. This balancing of rights and duties among the landlord and tenant is crucial in understanding the operation of the RTA and is one reason why the dispute resolution process should be an equitable and fair process.

The RTA looses its ability to handle situations adequately when there is an imbalance of power and resources amongst the parties. Inmany ways, this is a classic problem with mediation or arbitration without legal aid.  The tenant was forced into a situation where he became the respondent in a judicial review of the DRO’s decision. This meant that in order to uphold the damage award he would need to defend the decision of the DRO at the British Columbia Supreme Court. The tenant, unable to afford the legal costs of doing so, sought out free legal advice in a variety of ways before eventually being teamed up with Pivot who agreed to to argue his case pro-bono. It is safe to say that the tenant was lucky to find free legal help, and without it he would likely not have been able to continue in the judicial review process.The infringement of his rights would not have been recognized or compensated.

Over the next two months, we met with the tenant, filed an affidavit and drafted arguments for the judicial review hearing. Scott argued our case brilliantly and was able to articulate the inherent problems in a system where a landlord can use a judicial review to intimidate and deter the tenant from enforcing her or his rights. This lengthy process required an experienced lawyer and two assistants to prepare, and did not come without risks.

Risks 

in responding to a judicial review,l the tenant risked having costs awarded against him. This means that, if the decision of the DRO is overturned in favour of the landlord, the tenant may be liable to pay the legal fees of the landlord. Clearly, this plays as a disincentive for anyone trying to uphold a DRO damage award of $700 when legal fees may easily be thousands of dollars.

Renovictions

This was not a classic ‘renoviction’ case increasingly common in Vancouver; however, many of the same principles apply. A ‘renoviction’ is the eviction of a building’s tenants on the grounds that a renovation is planned. The concern in these cases is that ther renovations are the excuse for evictions in order to raise rents with new tenants.  In this case, the landlord purchased the building and shortly thereafter began renovating many of the units. The noise, dust, dirt and general construction sounds were such that our tenant eventually gave up and left the building. The DRO dismissed the claim that this was a renoviction case at the initial hearing due to a lack of evidence.

Evidence

Evidence was critical in this case. As a result, if you are ever faced with what you believe to be a breach of your rights as a tenant (or landlord for that matter) it is critical to document the evidence of the breach thoroughly and frequently through document collection, photographs etc. This will help during the residential tenancy dispute hearing and will allow a full accounting of the facts to take place.

Results

We are awaiting the judgment from the British Columbia Supreme Court. Whatever the ruling, the situation speaks volumes about the inefficiencies and inequities of the judicial review process. The tenant stood up for his rights, and the landlord did everything it could to fight back. Four months after filing the initial application at the RTB the judicial review process is over and the tenant now lives elsewhere, all for only $700.

I hope that a positive result will come from the ruling and the tenant will be able to successfully have his right to quiet enjoyment recognized with the appropriate damage award. Either way, the message is clear: if you want to challenge a well-resourced landlord it is going to cost you–energy, time, and likely money. Maybe that was the point of the judicial review after all. This case was the first of many in the same building, and ,as a result of the struggle the tenant has faced, all for the possibility of a $700 award, other tenants will likely be deterred from attempting to enforce their rights or give up when it becomes too costly and frustrating to continue, I wouldn’t blame them.


[1] Residential Tenancy Act [SBC 2002] Chapter 78