Taking it to the Next Level

Dealing with a judicial review initiated by your tenant

Taking it to the Next Level
Dealing with a judicial review initiated by your tenant

You are a landlord who has been dealing with a difficult tenant and have just received a favorable decision from the Residential Tenancy Branch granting you possession of the tenant’s unit on a certain date. You are surprised to then receive a petition filed in the Supreme Court of British Columbia by the tenant seeking to have the decision of the Dispute Resolution Officer (“DRO”) set aside or varied.  The tenant has taken the matter to the next level.

Applications by tenants to the Supreme Court are rare because of complexity and cost.  While it is relatively easy to navigate through the Residential Tenancy dispute resolution process without professional legal assistance, that is not the case once the parties head to the Supreme Court. Unless tenants are of some means, they usually have to rely the various non-profit agencies which may assist tenants with legal matters as part of their services. In many cases, tenants do not qualify for assistance and attempt the application on their own which often causes procedural problems for the Court and the landlord as the lay litigant attempts to navigate their way through a complex set of rules and procedure.

It is also remarkably difficult to succeed on an application to set aside a decision of a DRO.   The application is not in the nature of an appeal, nor is it a retrial.  The evidence will not be tested nor will the Supreme Court substitute the DRO’s findings for its own. Rather, the application is a review of the proceeding to determine if it should be set aside or sent back to the DRO using a very strict test.

The Residential Tenancy Board is considered an expert tribunal by the applicable legislation (as opposed to the Human Rights Tribunal which is surprisingly categorized as a non-expert tribunal). The applicable legislation provides that the Supreme Court may only set aside a decision of the DRO if it is patently unreasonable or unfair. In the simplest terms, decisions of the DRO will not be overturned unless there is absolutely no evidence to support the conclusion reached by the DRO, the member has utterly misapprehended the evidence as presented, or there are breaches of natural justice or fairness.

This cuts both ways of course. Landlords may receive what they consider to be a bad decision from the Residential Tenancy Branch and the same difficulties regarding appeal apply to the Landlord.

Notwithstanding the difficulties in appeal, there are various examples of successful applications to set aside decisions of the Residential Tenancy Branch.  When faced with an unfavorable decision, and before considering an appeal, landlords should seek the opinion of a lawyer to see whether the high threshold needed to set aside the decision of the Residential Tenancy Branch can be met.

Published online on July 24, 2016.