The B.C. Supreme Court has overturned a $34,180 penalty handed down by the Residential Tenancy Branch to North Vancouver landlords who evicted their tenants.
Colin and Shirley Louw began renting the upstairs unit in the home in 2018, the written decision released by the court last week notes.
In June 2021, Milad Hefzi, son of the registered owners, told the tenants that his father, who was living in the downstairs unit, had been diagnosed with cancer and that they would be breaking the lease so family members could stay there periodically and help with his father’s care.
Under provincial law, tenants can be evicted if a landlord or a member of their family wishes to occupy the unit.
In the eviction notice, Hefzi indicated the apartment would be taken over by “the landlord or the landlord’s spouse,” and signed his own name as the landlord/agent.
After some negotiation, the tenants moved out in November of that year, but early in 2022, they took Hefzi to the Residential Tenancy Branch, alleging he failed to move in.
Under the law, the branch can award tenants a full year’s rent if they were evicted in bad faith – $34,180 in the case of the Lowes. The arbitrator sided with the tenants.
Hefzi attempted to have the matter reviewed by the branch, which rejected his request to show evidence that he had in fact moved in. He then sought a judicial review of the matter in B.C. Supreme Court.
Justice Anita Chan sided with Hefzi, finding the decision of the Residential Tenancy Branch arbitrator was “patently unreasonable.”
Under the legal definition, there was no question Hefzi’s parents were to be considered landlords, Chan found, adding “an agent or someone acting on behalf of the landlord cannot take back the property for [their] own use.”
“The evidence that the arbitrator was looking for – evidence that Mr. Hefzi had moved in – was irrelevant to the issue, and Mr. Hefzi was not required to produce it. Mr. Hefzi was not the landlord,” she wrote. “In my view, an agent for the landlord can sign the s. 49 notice. However, s. 49(3) makes clear that it must be the landlord who must occupy the unit after the tenants have vacated.”
Chan ordered the matter to be heard again by a Residential Tenancy Branch arbitrator “to determine if the evidence shows Mr. Hefzi’s parents had moved in and occupied the property for at least six months after the tenants had vacated it.”
