Kozlowski v. Mackey, 2017 BCSC 257

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kozlowski v. Mackey, 2017 BCSC 257 Date: 20170217 Docket: 17812 Registry: Salmon Arm Between: Gloria Kozlowski Petitioner And Shirley Mackey, Ivan Mackey Respondents Before: The Honourable Madam Justice Hyslop On judicial review from: Decisions of the Residential Tenancy Branch, dated July 17, 2016 and August 8, 2016 Reasons for Judgment Counsel for the Petitioner: D.T. Brooks-Hill Counsel for the Respondents: B.J. Lownds Place and Date of Hearing: Revelstoke, B.C. January 23, 2017 Place and Date of Judgment: Salmon Arm, B.C.

February 17, 2017 INTRODUCTION [ 1 ] The petitioner brings a Petition for judicial review under the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 [ JRPA ] seeking to set aside the Residential Tenancy Branch Arbitrator, G. Kahlon’s decision dated July 17, 2016, issued under the Manufactured Home Park Tenancy Act , S.B.C. 2002, c. 77 [ MHPTA] . [ 2 ] The respondent landlords issued a Notice to End Tenancy for Cause (“Notice”) respecting a manufactured home located at Site 8 on Highway 93/95 at Radium Hot Springs, British Columbia. The respondent landlords ask that the decision of G.

Kahlon and its review by A. Wood be upheld. [ 3 ] The Director of the Residential Tenancy Branch (“RTB”) filed a Response to Petition (“Response”) opposing the granting of costs against the provincial respondents. It further opposes any Order granted under item #5 of

Part 1 of the Petition, which states “Such other Orders as the court deems just” as the Province would have “no opportunity to respond to whether such an order would be appropriate on this judicial review.” [ 4 ] The Province takes no position as to the Orders sought by the petitioner: …so long as such orders are accompanied by a direction that the matter be remitted to the Director (of her delegate) for reconsideration pursuant to

section 5 of the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 (“ JRPA”) [ 5 ] The Province, in its Response, sets out a useful review of the law on judicial reviews, its limits and its remedies which I have repeated. [ 6 ] The Provincial respondent filed an Affidavit of Brad Sparrow which attaches a complete record of the proceeding pursuant to s. 1 of the JRPA . Also attached to Mr. Sparrow’s Affidavit is the RTB’s Policy Guidelines on Review Considerations or Orders. ACTS GOVERNING [ 7 ] The Acts governing this review are the MHPTA , the Administrative Tribunals Act , S.B.C. 2004, c. 45 [ ATA ] and the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241.

BACKGROUND [ 8 ] The petitioner owns a manufactured home at the Green Acres Mobile Home Park, which is located at Site 8 on Highway 93/95 at Radium Hot Springs, British Columbia. She has owned this mobile home since 1996, and has paid rent each month up to and including August of 2016. Its use is that of a summer residence. [ 9 ] The respondent, Shirley Mackey is the owner of the mobile home park known as Green Acres. It is managed by her son, Ivan Mackey. [ 10 ] On May 31, 2016, the petitioner was served with a “One-Month Notice to End Tenancy for cause” by the respondents.

She applied to the RTB to cancel the Notice on June 9, 2016. A Dispute Resolution Hearing was held by telephone conference on July 15, 2016 in which both the petitioner and the respondents participated. [ 11 ] The dispute arose when the petitioner permitted a tenant/handyman to move into her mobile home without seeking the consent of the respondents. The tenant was then observed cutting branches from trees located on site 8. When confronted by Mr. Mackey concerning cutting the tree branches, he met with verbal abuse and was told that he could do as he likes and to get off his property.

Shortly thereafter, the respondents served the Notice based on the failure of the petitioner to obtain consent to assign or sublet the mobile home without the consent of the respondents and causing extraordinary damages to the trees located on site 8, but cutting off the branches of the trees. [ 12 ] The issue of subletting is no longer an issue as the petitioner’s tenant/handyman has left. [ 13 ] The Dispute Resolution office issued their decision on July 17, 2016 upholding the respondents’ Notice and granted the respondents an Order of Possession effective at 1 p.m. on July 31, 2016. [ 14 ] The petitioner applied for a review of the decision of July 17, 2016 on July 29, 2016.

On August 8, 2016, the review decision was issued and the decision upheld the decision of July 17, 2016; the petitioner’s application for review was dismissed. [ 15 ] The petitioner obtained two Orders from this court staying the Order of Possession until this judicial review was heard. JUDICIAL REVIEW LIMITS [ 16 ] The role of the court in a judicial review is to supervise the jurisdiction of an inferior statutory tribunal so that the tribunal acts within its jurisdiction bestowed upon it by Legislature and the Act that gives it authority. This is described in Dunsmuir v.

New Brunswick, 2008 SCC 9 , at para. 28 : …Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [ 17 ] This Court’s role does not, except in limited circumstances, permit new arguments at either the original hearing or its reconsideration. New evidence is not permitted except in limited circumstances.

The Court, on a judicial review of a tribunal’s decision, may not consider the evidence that is outside of the record that is before the tribunal. [ 18 ] The role of the court in a judicial review is limited. The court cannot substitute its view of the evidence or argument. It does not decide or re-decide the case. Its sole purpose is to supervise the tribunal and make sure that it stays within the bounds of the legislative enactment and does not lose its jurisdiction by failing to conduct a fair hearing or delivering a decision by the reviewing court that does not provide a degree of deference to the tribunal.

STANDARD OF REVIEW [ 19 ] It is not disputed in this proceeding that the standard of review is patent unreasonableness. This comes from s. 71.1 and 77.1 of the MHPTA : 71.1 Sections 1 , 44 , 46.3, 48 , 56 to 58 and 61 of the Administrative Tribunals Act apply to the director as if the director were a tribunal and to dispute resolution proceedings under Division 1 of this Part and reviews under Division 2 of this Part. … 77.1

(1) The director has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding under Division 1 of this Part or in a review under Division 2 of this Part and to make any order permitted to be made.

(2) A decision or order of the director on a matter in respect of which the director has exclusive jurisdiction is final and conclusive and is not open to question or review in any court. and s. 58 of the ATA : 58

(1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1) (

a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction undera privative clause must not be interfered with unless it is patently unreasonable, (

b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard towhether, in all of the circumstances, the tribunal acted fairly, and (

c) for all matters other than those identified in paragraphs (

a) and (b), the standard of review to be applied to the tribunal's decision iscorrectness.

(3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion (

a) is exercised arbitrarily or in bad faith, (

b) is exercised for an improper purpose, (

c) is based entirely or predominantly on irrelevant factors, or (

d) fails to take statutory requirements into account. [20] In Yee v. Montie, 2016 BCCA 256, the appeal court describes “patently unreasonable” as: [21] The ATA does not define patent unreasonableness as the term applies to questions of fact or law. In Manz v. Sundher, 2009BCCA 92 at para. 39, Saunders J.A. adopted the meaning of the phrase in relation to factual matters from 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 onjudicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Divisionand 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 bepatently unreasonable. That is not the case here. [22] In Pacific Newspaper Group Inc. v.

Communications, Energy and Paperworkers Union of Canada, Local 2000, 2014 BCCA 496at paras. 39-44, this Court affirmed that the standard of patent unreasonableness is at the high end of the deference spectrum, andendorsed this description of the phrase from Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52: ... a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that thedecision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance withreason".

A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. [Citationsomitted.] [21] In Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada, (SCC), [1989]2 S.C.R. 983, Mr. Justice La Forest described patent unreasonableness in even stronger terms: The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that itsconstruction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 237).

Thetest for review is a "severe test"; see Blanchard v. Control Data Canada Ltd., (SCC), [1984] 2 S.C.R. 476, at p. 493.This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference ismore than just a fiction courts resort to when they are in agreement with the decisions [page1004] of the tribunal. Mere disagreementwith the result arrived at by the tribunal does not make that result "patently unreasonable".

The courts must be careful to focus theirinquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. ISSUES RAISED BY THE PETITIONER 1. Which decision is subject to review? 2. Whether the arbitrator’s

interpretation of the words “extraordinary” and “damage” is patently unreasonable? WHICH DECISION IS SUBJECT TO REVIEW? [22] The petitioner argues that the decision to be reviewed is that of Arbitrator Kahlon issued July 17, 2016, and not ArbitratorWood’s decision issued August 8, 2016 and corrected August 12, 2016. [23] The respondent argues that the decision to be reviewed should be that of Arbitrator Wood. [24] The petitioner argues that the answer to this question is in Yellow Cab Company Ltd. v.

Passenger Transportation Board, 2014BCCA 329, and the comments by the Court of Appeal: [44] Where a denial of leave does not constitute a determination that the request for reconsideration lacks merit, it is my view that theinitial administrative decision, and not the denial of leave, will be the appropriate target for judicial review. To hold otherwise would beto allow a tribunal, through procedural machinations, to oust the inherent, constitutionally-protected supervisory jurisdiction of the

superior courts. In Jozipovic v. British Columbia (Workers' Compensation Board) , 2012 BCCA 174 , this Court emphasized that a tribunal cannot, by blocking access to administrative review of a decision, bar the courts from passing on the merits of judicial review. [ 25 ] In this review, because there is a privative clause in the MHPTA , reconsideration is limited and was limited to s. 58 of the ATA and s. 72(1) and (2) of the MHPTA . [ 26 ] In Martin v. Barnett , 2015 BCSC 426 , Madam Justice Burke referred to para. 44 of Yellow Cab .

She acknowledged that the review under the Residential Tenancy Act, SBC 2002 c. 78 [ RTA ] is very limited, pursuant to s. 79(1) and (2) of the RTA. Madam Justice Burke concluded that, as a result of these provisions a reconsideration will not determine that the allegations of the errors lacked foundation. She decided that the original decision was subject to review. [ 27 ] Section 79(1) and (2) of the RTA is worded the same as s. 72(1) and (2) of the MHPTA . [ 28 ] Similar reasoning in Martin was applied in a dispute involving the MHPTA . In Powell v.

British Columbia (Director of the Residential Tenancy Branch) , 2015 BCSC 2046 , the court at para. 39 stated: While there is some disagreement as to whether the court has jurisdiction to go on and address the original decision issued by Arbitrator Molnar, I find the judgment of Burke J. in Martin v. Barnett , 2015 BCSC 426 , is determinative of this question. In Martin, the landlord applied for judicial review of a decision of the Residential Tenancy Branch concerning a compensation order in favour of the tenant. The landlord applied for a review of the original decision and his application was denied.

On judicial review, a question arose as to whether the court's jurisdiction extended to both decisions or to only the review decision. After reviewing the conflicting authorities, Burke J. concluded that the court must examine the statutory framework in each case to determine whether the review or reconsideration decision amounted to a review of the merits of the original decision.

Where the grounds for review are limited, and do not include a reconsideration of the merits of the original decision, as in the case of decisions pursuant to the Manufactured Home Park Tenancy Act , the court should not deny a litigant an opportunity to apply for judicial review of the underlying decision based on a determination by a reviewing arbitrator that the statutory grounds for review are lacking . [Emphasis added] [ 29 ] Based on the above, I conclude that the original decision of Arbitrator Kahlon is the decision that must be reviewed. WHETHER THE ARBITRATOR’S

INTERPRETATION OF THE WORDS “EXTRAORDINARY” AND “DAMAGE” IS PATENTLY UNREASONABLE [ 30 ] The petitioner argues that his Court should substitute dictionary meanings for the words “extraordinary” and “damage”. The petitioner claims that the manner in which the Arbitrator used these words does not confirm their true meaning. [ 31 ] Arbitrator Kahlon used these words properly and used them within the context of the dispute. Although the arbitrator did not refer to s. 40 of the MHPTA legislation specifically, it states: 40

(1) A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies: … (

e) the tenant or a person permitted in the manufactured home park by the tenant has caused extraordinary damage to a manufactured home site or the manufactured home park; [ 32 ] Ruth Sullivan, Sullivan on the Construction of Statutes , 6th Ed. (Markham, Ontario: LexisNexis Canada Inc., 2014, states this, as to the use of dictionary meanings in interpreting statute: 3.34 Finally, and fundamentally, dictionary meaning is a-contextual. It is an abstraction from a portion of the innumerable contexts in which a particular word has been or could be used.

It cannot, and does not purport to, indicate the meaning of a word as used in a particular context, in relation to a particular set of facts. As a basis for taking judicial notice of the ordinary meaning of a legislative text, then, a dictionary has little to offer. [ 33 ] Arbitrator Kahlon found: The owner’s agent referred to photographic evidence which showed extensive cutting of all the branches of three large trees up to an area of 15-20 feet from the base of the trees. The owner’s agent testified that the trees were planted there by the owner’s husband 42 years ago who had passed away.

The owner was very upset about this as this damage cannot be rectified. The owner’s agent referred to the Tenants’ breach of the park rules which the Tenants had signed in 199[7], in particular number 3 which states: “We will have no damage done to trees by nailing, attaching wire, climbing or cutting branches.” [Reproduced as written] [ 34 ] The rationale of the Arbitrator’s decision is set out as follows: Based on the photographic evidence before me I do find that KV caused extraordinary damage to the three trees.

This is because the branches cannot be replaced and therefore this damage of the aged trees is not repairable and permanent in nature. In addition, I find that such an undertaking should only have been executed by a tree specialist who would have taken any relevant action to ensure the longevity of the trees and prevent any long term effects to the trees that may have been caused by the manner in which the tree branches

were cut. [ 35 ] The Arbitrator considered and interpreted the words “extraordinary” and “damage” within the context of the facts he found. He was entitled to do so.

In addition, he considered KV’s and the respondent’s rationalization for cutting the branches from the trees: While I take into consideration that the cutting of the tree branches lead to other improvements, such as recovery of the lawn, I cannot use this reason alone to detract from the damage that was caused to the trees which I find extraordinary in nature. [ 36 ] It cannot be concluded that the decision of July 17, 2016 is patently unreasonable. [ 37 ] The petition is dismissed. [ 38 ] As between the petitioner and the respondents, the respondents shall have their costs at Appendix B, Scale B of the Supreme Court Civil Rules , B.C.

Reg. 168/2009. No order for costs is awarded to or against the Provincial respondent. “H.C. Hyslop J.” HYSLOP J.