IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Marshall v. Pohl, |
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2019 BCSC 406 |
Date: 20190321
Docket: S1812638
Registry: Vancouver
In the Matter of the Judicial Review Procedure Act,
R.S.B.C. 1996, c. 241
Between:
Graham Craig Marshall
Petitioner
And
George Pohl
Respondent
Before: The Honourable Mr. Justice Skolrood
On
judicial review from: An order of the Residential Tenancy Branch,
dated October 24, 2018 (Marshall v. Pohl, File No. 11024651).
Reasons for Judgment
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Counsel for the Petitioner: |
H. Popenia |
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The Respondent appearing on his own behalf: |
G. Pohl |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. February 22, 2019 |
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Place and Date of Judgment: |
Vancouver, B.C. March 21, 2019 |
[1] This is an application for judicial review pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA], of an order of the Residential Tenancy Branch (“RTB”) dated October 24, 2018 which upheld a Notice to End Tenancy for Cause issued to the petitioner (the “Decision”). The petition seeks an order setting aside the Decision as well as an accompanying order of possession.
[2] The petitioner is 77 years old and has resided at the subject premises, located at 208-5662 Hightide Street, Sechelt, BC (the “Unit”) since 1987. His mother was the original tenant and he lived with her initially, but then took over the tenancy in 1990 when his mother passed away.
[3] The respondent (the “landlord”) is currently 87 years old. He owns the building in which the Unit is located and his son is the manager.
[4] It is apparent that the petitioner has been a difficult tenant, particularly in recent years. Both parties acknowledge that problems have developed in the relationship over the years of the petitioner’s tenancy.
[5] According to the Decision, there was a previous attempt by the landlord in 1998 to terminate the petitioner’s tenancy but the petitioner successfully challenged the termination before the RTB.
[6] On August 1, 2018, the landlord served the petitioner with a one month notice to terminate (the “Notice”) pursuant to s. 47 of the Residential Tenancy Act, S.B.C. 2002, c. 78 [Act]. The Notice had a handwritten amendment done by the landlord providing for two months’ notice rather than one.
[7] On the Notice, the landlord identified the following grounds for the termination (by checking the relevant boxes):
Tenant or a person permitted on the property by the tenant has…:
significantly interfered with or unreasonably disturbed another occupant or the landlord.
seriously jeopardized the health or safety or lawful right of another occupant or the landlord.
Tenant or a person permitted on the property by the tenant has engaged in illegal activity that has, or is likely to:
adversely affect the quiet enjoyment, security, safety or physical well-being of another occupant.
[8] On August 10, 2018, the petitioner applied to the RTB to cancel the Notice.
[9] On October 18, 2018, a hearing was held by conference call before an RTB arbitrator (the “Arbitrator”). The petitioner was represented at the hearing by an advocate. The landlord appeared in person (by phone) at the hearing.
[10] On October 24, 2018, the Arbitrator issued the Decision dismissing the petitioner’s application.
[11] On page 6 of the Decision, the Arbitrator summarized the landlord’s evidence of the reasons for issuance of the Notice:
· The tenant complains constantly to the landlord about imagined noise and personal disturbances, such as the sound of toilets in the other units, heat, odour, pests and noise.
· The landlord promptly investigated the tenant’s noise complaints and found them groundless.
· The tenant complains constantly about the occupants of the unit immediately below his. The tenant deliberately created noise to retaliate against the downstairs neighbours, such as by vacuuming on one occasion for three hours.
· The tenant is rude and verbally abusive to other tenants.
· The landlord testified the tenant is belligerent, defiant, unwilling to compromise, and “impossible” to live with.
· The landlord, the landlord’s son (who lives in the building), and the building manager have verbally warned the tenant on multiple occasions to stop his behaviour or he will be evicted.
· The tenant’s behaviour has worsened over time particularly in recent months.
[12] The Arbitrator then summarized the petitioner’s key submissions at page 7:
· Because of the poor infrastructure of the building, the tenant hears toilets flush in neighboring units, doors opened and closed, and nearby voices. This has caused disturbance to the tenant resulting in his justified numerous oral and written complaints to other tenants and to the landlord.
· Conditions in the building are sometimes unbearable; these conditions include uncomfortable heat, the presence of insects, and disagreements over window opening/closing in common areas.
· The various occupants of the downstairs unit are responsible for many of the tenant’s justified complaints. The tenant denied retaliatory behaviour targeting these tenants.
· The tenant denied engaging in behaviour designed to irritate other tenants.
· The tenant described himself as a “model tenant”. He submitted a letter dated July 2018 from a long-time friend and a letter of August 7, 2018 from another tenant in the building which described him as a “considerate and cordial neighbor”. Other submitted letters described the tenant as quiet and tidy.
· The tenant argued that, as in a previous arbitration (a copy of which was submitted), the circumstances described by the landlord in the hearing are more “analogous to neighbors arguing with each other about the noise”.
· As mentioned earlier, although the tenant acknowledged receipt of a warning letter from the landlord six months ago, the tenant stated this is not adequate notice warning him about…any behaviour which could lead to notice of termination of tenancy.
· The tenant testified he has “isolated memory disorder”, a condition which is known to the landlord, and “sufficient warning for the average person may not be sufficient for [the tenant]”. The tenant did not produce current medical reports or submit admissible evidence in this regard.
[13] The Arbitrator also reviewed two letters submitted by the landlord from other tenants raising concerns about the petitioner’s behaviour as well as a statement from the landlord about an angry confrontation with the petitioner.
[14] The Arbitrator’s findings are then set out under the heading “Analysis” as follows:
Based on the testimony presented at the hearing, along with the written submissions, it is evident that multiple incidents have occurred between the tenant and other occupants of the building, as well as the landlord and the building’s management.
The question is therefore whether these incidents meet the requirements of section 47.
I have considered all the evidence and testimony. On a balance of probabilities, I find the landlord has established grounds for the issuance of the One Month Notice.
I find that the tenant has significantly interfered with and unreasonably disturbed the landlord and other occupants of the residential property to the extent that the landlords were justified in issuing their One Month Notice. As I have made this finding with respect to the first ground in the Notice, I will not examine the additional ground for the issuance of the Notice.
[15] The petitioner subsequently applied for a review of the Decision pursuant to s. 79 of the Act. That application was dismissed on October 24, 2018.
[16] The petitioner alleges three grounds for judicial review of the Decision:
a) It is patently unreasonable to fail to set out findings of fact with respect to which incidents constituted a significant interference or unreasonable disturbance and the principal evidence upon which those findings were based;
b) It is patently unreasonable to conclude that the petitioner’s behaviour rose to the level of a significant interference or unreasonable disturbance to the landlord or other occupants; and
c) It was procedurally unfair to deny the petitioner his right to present his case.
[17] The relevant portion of s. 47 of the Act provides:
47 (1) A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies:
…
(d) the tenant or a person permitted on the residential property by the tenant has
(i) significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property,
[18] Pursuant to R. 6.6 of the Residential Tenancy Branch Rules of Procedure, when a tenant disputes a notice to end the tenancy, the burden is on the landlord to prove the reason for which he or she wishes to end the tenancy.
[19] The standard of review for findings of fact, findings of law and exercises of discretion by an RTB arbitrator is patent unreasonableness: Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58; Act, s. 84.1; Hawk v. Nazareth, 2012 BCSC 211 at para. 8.
[20] In Hawk at para. 32, Mr. Justice Jenkins cited the following passage from Manz v. Sundher, 2009 BCCA 92, where Madam Justice Saunders described the patent unreasonableness standard:
[39] The standard of review was that of patently unreasonable. When applied to findings of fact or law the Administrative Tribunals Act does not define that term. (Section 58(2)(a) refers to a finding of fact or law or an exercise of discretion, but s. 58(3) is said to apply only to discretionary decisions). Accordingly, the well understood meaning of that phrase in relation to factual matters applies, is as described in [Speckling v. British Columbia (Workers' Compensation Board), 2005 BCCA 80]:
[37] As the chambers judge noted, a decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable. That is not the case here.
[21] One of the grounds of review raised by the petitioner concerns the adequacy of the Arbitrator’s reasons. In Hawk, Mr. Justice Jenkins reviewed a number of authorities that address this issue. He concluded:
[16] In short, in order to say the reasons given by a dispute resolution officer are sufficient or adequate, the reasons must allow the parties and the Court to understand why the officer came to the conclusions he or she did…
[22] In Laverdure v. First United Church Social Housing Society, 2014 BCSC 2232, Mr. Justice Davies also considered the relevant authorities and set out the following key principles:
[35] What I take from my review of all of the authorities to which I was referred is that for the reasons of a Dispute Resolution Officer to be adequate, they must:
1) Set out the legal test to be met by the party advancing its claim;
2) Set out the adjudicator’s findings of fact and the principal evidence upon which those findings were made; and
3) Apply those findings of fact to the test to be met in reaching a conclusion that will allow the parties and others (including a reviewing court) to understand how and why the adjudicator reached that decision.
[23] In my view, the petitioner’s judicial review application turns on the first ground of review alleged concerning the adequacy of the Arbitrator’s reasons.
[24] Before addressing that ground, I will deal briefly with the other two grounds raised.
[25] The petitioner alleges that the Arbitrator’s finding that the conduct of the petitioner amounted to a “significant interference” or an “unreasonable disturbance” to the landlord or other tenants is not supported by the evidence and is patently unreasonable.
[26] The petitioner submits that the various incidents identified by the landlord and referred to by the Arbitrator are largely dated and trivial, primarily personal in nature and do not rise to the level of a significant interference or an unreasonable disturbance.
[27] The difficulty with this submission is that it effectively asks the Court to step into the shoes of the Arbitrator, to weigh the evidence and to substitute its view for that of the Arbitrator. However, that is not the role of the Court on a judicial review application: Hawk at para. 33.
[28] The petitioner’s real complaint is that the Arbitrator does not explain which of the incidents complained of, or which combination thereof, met the statutory standard. In this sense, this alleged ground of review is duplicative of the first ground raised and I will deal with it when considering the adequacy of the Arbitrator’s reasons.
[29] The third ground alleged by the petitioner is that the hearing before the Arbitrator was procedurally unfair. The petitioner identifies three aspects of the hearing that he says were unfair to him:
a) The Arbitrator cut off the petitioner’s response to a question about his interactions with other tenants in the building;
b) The Arbitrator pressured the petitioner to conclude his testimony due to time constraints, in circumstances in which the landlord was late in attending the hearing; and
c) The Arbitrator interrupted the testimony of the petitioner despite knowing that the petitioner had an “isolated memory disorder” and despite the petitioner expressing concern that he was having difficulty following the process.
[30] As there is no transcript of the hearing the petitioner’s complaints are based upon his own description of events as set out in his affidavit sworn November 26, 2018, in support of the petition.
[31] In that affidavit, the petitioner does describe being interrupted by the Arbitrator. However, he does not clearly identify the point that he says he was prevented from making.
[32] In any event, in his affidavit the petitioner acknowledges that as the hearing came to an end, his advocate was given an opportunity to make any additional submissions, and that his advocate did so. His complaint is that after his advocate concluded, he should also have been given an opportunity to personally speak, but that when he tried, the Arbitrator “cut me off” and instead asked if the landlord had anything to add.
[33] I am not satisfied that the petitioner’s right to be heard was infringed or that the hearing was otherwise unfair. There is no evidence that the Arbitrator provided the petitioner’s advocate with anything less than a full opportunity to make submissions, or that the petitioner felt that the advocate was somehow misrepresenting or inadequately representing his views. In addition, the advocate also prepared detailed written submissions on behalf of the petitioner that were before the Arbitrator and which addressed all of the petitioner’s grounds for seeking to set aside the Notice. In light of this, the fact that time limitations may have prevented the petitioner from adding something to his own advocate’s argument does not, in these circumstances, amount to procedural unfairness.
[34] With respect to the petitioner’s memory difficulties, the petitioner has not provided any detail as to how this disorder affected his ability to participate in the proceedings. Without further evidence or explanation as to the nature of the disorder, the vague complaint that the Arbitrator interrupted the petitioner’s testimony does not establish that the hearing was procedurally unfair. It is again important to note that the petitioner had the benefit of an advocate, who could ensure that the petitioner was heard and his interests were represented even if he did, in fact, have some difficulty in following the proceedings.
[35] I turn then to the petitioner’s first ground of review: that the Arbitrator’s reasons are inadequate. Specifically, the petitioner alleges that the Arbitrator failed to weigh the evidence and failed to make findings of fact to support the ultimate conclusion that the petitioner’s conduct significantly interfered with and unreasonably disturbed the landlord and other occupants.
[36] As reflected in the Arbitrator’s analysis, reproduced at paragraph 14 above, the Arbitrator found that there were “multiple incidents” that have occurred between the petitioner, the other tenants, the landlord and the building manager. The Arbitrator further found that these incidents constituted a significant interference and an unreasonable disturbance, so as to justify the issuance of the Notice.
[37] The petitioner’s complaint about the sufficiency of these reasons is well summarized at para. 35 of his written submission:
The Arbitrator determined that the question before her was whether the “multiple incidents” that occurred involving the tenant met the requirements of section 47. She determined, without any further analysis that they did. The Arbitrator did not set out the principal evidence that comprised the “multiple incidents” involving the tenant, Landlord and other occupants. The legal test under section 47 of the Act is whether the tenant has “significantly interfered with or unreasonably disturbed another occupant or the landlord of the residential property”. Merely stating, as the Arbitrator has here, that incidents occurred, does not assist the parties or a reviewing Court in knowing which, if any, of those incidents, in the opinion of the Arbitrator, rose to the level of a “significant” interference or “unreasonable” disturbance. Without knowing which “incidents” constituted a significant interference or unreasonable disturbance, the Petitioner cannot “understand how and why the adjudicator reached that decision”.
[38] I agree that the Arbitrator’s reasons are inadequate and do not meet the requirements set out in Hawk and Laverdure. I come to this conclusion for the following reasons:
a) The Arbitrator summarizes the evidence and submissions of the parties but makes no findings of fact about which incidents actually occurred, beyond the general statement that there were “multiple incidents”;
b) The Arbitrator does not address the petitioner’s explanation and denial of some of the complaints or explain why the evidence of the landlord was apparently preferred; and
c) The Arbitrator does not explain which incidents, either individually or cumulatively, met the statutory standard of a “significant interference” or an “unreasonable disturbance”.
[39] I agree with the petitioner that the reasons simply state the Arbitrator’s conclusions but provide little insight into how those conclusions were reached. In the circumstances, both the petitioner and the Court are left to guess about how and why the Arbitrator reached the Decision.
[40] I should add that, based on the record, it is apparent that there was evidence before the Arbitrator that would support the conclusion upholding the Notice. Unfortunately, the reasons of the Arbitrator do not illuminate the path by which the Arbitrator reached that conclusion.
[41] I find that the reasons of the Arbitrator are inadequate and that the Decision must therefore be set aside.
[42] Pursuant to s. 5(1) of the JRPA, the petitioner’s application to cancel the Notice is remitted to the RTB for a rehearing before a different arbitrator.
[43] I make no order as to costs.
“Skolrood J.”