Hebert v. Balderston, 2020 BCPC 43
Opinion
Citation: Hebert v. Balderston 2020 BCPC 43 Date: 20200316 File No: 7157 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CALVIN LESLIE J. HEBERT CLAIMANT AND: GLENN BALDERSTON and SHERWOOD MHP INC. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Claimant: P. Sorenson Appearing on his own behalf: G. Balderston Representative of the Defendant Sherwood MHP Inc.: R. Gordon Place of Hearing: Colwood, B.C. Dates of Hearing: August 20, 2019 and September 10, 2019 Claimant’s Written Submissions by P.
Sorenson: September 24, 2019 Defendants’ Written Submissions by T. Cox: October 7, 2019 Claimant’s Responding Submissions by P. Sorenson: October 16, 2019 Date of Judgment: March 16, 2020 INTRODUCTION [ 1 ] Calvin Leslie J. Hebert (the “Claimant”) seeks damages from the Defendants Glenn Balderston (the “Defendant Balderston”) and Sherwood MHP Inc. (the “Defendant Sherwood”) for what is alleged to have been losses arising from a wrongful disposal by way of a sale of a manufactured home (the “Unit”) owned by the Claimant and his son Daryl William Hebert (“Daryl”) as joint tenants.
[2] The facts of this case are unusual. The Unit was located on a site in the mobile home park owned by the Defendant Sherwood,known as Sherwood Estates, pursuant to a tenancy arrangement solely with Daryl and not with the Claimant. The Defendant Sherwoodpurportedly exercised its remedies as a landlord against the Unit under the Manufactured Home Park Tenancy Act, SBC 2002, c. 77 (the“MHPTA”) and the Manufactured Home Park Tenancy Regulation (the “MHPTR”) as a result of a tenancy default by Daryl.
The exerciseof the landlord’s remedies resulted in the disposition of the Unit in a fashion that purportedly transferred the registered ownership ofDaryl and the Claimant in the Unit to a third party, Jeff Zigay. [3] The Claimant alleges that he has suffered damages, both general and aggravated, as a result of the wrongful actions of the twoDefendants. [4] The task of this Court is to determine whether or not the Claimant has proven that the Defendants or either of them actedwrongfully and specifically wrongfully disposed of the Unit and if so, what are the proven damages flowing from that wrongfuldisposition.
Legal Framework and Legal Principles Applicable Legal Principles Burden of Proof [5] The burden of proof in a civil case rests with a claimant to prove their case on the standard of a balance of probabilities. TheSupreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41 at para. 49, states: [I]n civil cases there is only one standard of proof and that is proof on a balance of probabilities.
In all civil cases, the trial judge mustscrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [6] Therefore, the Claimant must prove the existence of the facts and other essential elements upon which it relies in order tosucceed in its claim against the Defendants. If he fails to do so, he cannot succeed. [7] What does “proof on a balance of probabilities” mean? It does not mean proof beyond a reasonable doubt. That standard ofproof applies only in criminal trials.
In civil trials the party who has the burden of proof on an issue must convince the finder of fact (herebeing the court) that what she or he asserts is more probable than not or to put it another way that the balance is tipped in his or herfavour. [see: F.H. v. McDougall, supra]. [8] The degree of probability required to meet the standard and to discharge this burden of proof has been defined by Lord Denningin the following terms: It must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that the tribunalcan say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not. [see: Miller v. Minister of Pension, [1947] 2 All E.R. 372. at 374 (K.B.)] [9] In Smith v. Smith (SCC), [1952] 2 S.C.R. 312; [1952] S.C.J.
No. 25 (S.C.C.) Justice Cartwright (as he then was)of the Supreme Court of Canada articulates the applicable test as follows: … that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of apreponderance of probability and I do not propose to attempt a more precise statement of the rule.
I wish, however, to emphasize that inevery civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonablysatisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment isformed including the gravity of the consequences of the finding. [10] Sopinka, Lederman & Bryant: The Law of Evidence in Canada, Third Edition (LexisNexis Canada Inc., 2009) (“Sopinka et al”)at s. 5.52 and 5.53 provide the following useful
summary: [5.52] …Simply put, the trier of fact must find that the existence of the contested fact is more probable than its nonexistence.Conversely, where a party must prove the negative of an issue, the proponent must prove its absence is more probable than its existence. [5.53] But how does a trier of fact determine if the standard has been met? Certainly not based on the number of witnesses or the volumeof evidence adduced.
Also, if the nature of the inquiry is serious or the evidence adduced is very unsatisfactory, a jury may not besatisfied as to the existence of a disputed fact even though the proponent of the issue adduced a preponderance of evidence. [11] Sopinka et al in s. 5.53 at footnote 135 goes on to cite Dixon J. in Briginshaw v.
Briginshaw (1938), 60 C.L.R. 336 at 361 to 362(H.C.A.) for the proposition that there must be a subjective belief by the tribunal of the fact, expressed in the following words: The truth is that, where the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existencebefore it can be found… [12] If the evidence on an issue is evenly balanced such that the trier of fact is unable to say where the balance of probabilities lies,then the decision on that issue must be made against the party who has the burden of proving it. [13] In deciding whether an issue has been proven on a balance of probabilities, the trier of fact must consider all of the evidencerelevant to that issue, no matter who produced it.
The Role of Expert Evidence
[14] As noted below, no expert evidence was called by the Claimant in this matter to the detriment of the Claimant. [15] The Supreme Court of Canada’s decision in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, sets out criteria fordetermining the admissibility of expert opinion. To qualify for admissibility the expert evidence must meet four criteria:
a) relevance;
b) necessity in assisting the trier of fact;
c) the absence of any exclusionary rule; and
d) must be given by a properly qualified expert. [16] A properly qualified expert witness must be independent and impartial [see: White Burgess Langille Inman v. Abbott andHaliburton Co., 2015 SCC 23 , [2015] 2 SCR 182 at para. 53]. [17] Evidence from a qualified expert is admitted in a trial as an exception to the general exclusionary rule barring opinion evidence,in order to provide the trier of fact with the necessary technical or scientific basis upon which to properly assess the evidence presented[see: Sopinka et al at s. 12.35].
In other words it is a tool to allow the trier of fact to better comprehend complex or technical evidence inmaking its decision, where the complex or technical evidence is likely outside the knowledge and experience of the trier of fact. [18] In all circumstances it is open to the trier of fact to accept or reject the opinion of an expert on the ultimate issue. [see: The Continuing Legal Education Society of British Columbia: Expert Evidence in British Columbia Civil Proceedings, ThirdEdition (2011) (“CLEBC: Expert Evidence”) parts 2.17 to 2.21 inclusive] Summarizing the Evidence [19] I do not intend to describe the minutiae of all of the evidence presented in this case.
I have rather taken a more compressed andsomewhat selective canvassing of the evidence where it is relevant and necessary in making evidentiary findings. This approach wasapproved by Judge T. Woods in R. v. Connell, 2017 BCPC 123 , 2017 BCPC123, at paras. 5 and 6. This approach has beenfollowed in other recent decisions of our court. [20] However, in drawing necessary inferences and in reaching my conclusions I have carefully considered all of the evidence, evenif I have not made specific reference to certain aspects of it.
The Non-Disputed Background Circumstances and Facts Giving Rise to the Claim [21] In addition to the circumstances detailed above under the heading of Introduction there are a number of other non-disputedbackground circumstances and facts giving rise to this claim. [22] The Claimant is a retired financial planner, in his late 70s with two sons.
His son Daryl, in his mid-50s, has suffered for anumber of years from drug addiction and several related serious health issues; he is classified as disabled and receives monthly paymentsfrom the Province to assist in his support. [23] In consultation with Daryl, the Claimant sought to provide Daryl with stable housing. This led to the purchase of the Unitlocated in Sherwood Estates for the amount of $11,500 on January 31, 2017, following the granting of approval of Daryl as a tenant ofSherwood Estates by the Defendant Sherwood. It was a private sale with no realtor involved.
No home inspection or real estate appraisalfor the Unit was obtained by the Claimant or Daryl. A lawyer was retained by them to complete the purchase transaction and to preparethe necessary Statements of Adjustments and the required transfer document that was registered in the Manufactured Home Registry onFebruary 15, 2017. Daryl moved into the Unit following the completion of the purchase and sale. [24] The only address used by the Claimant and Daryl for the purposes of the owners’ address in the Manufactured Home Registrywas the Sooke River Road address for Sherwood Estates mobile home park.
No change of address was ever filed by the Claimant andspecifically not when he subsequently moved from Victoria to Duncan, BC. [25] According to the documentary exhibits in evidence the Unit was built in 1973 and was 56 feet in length and 12 feet in width. Itis what is commonly referred to as a “single wide” mobile home. At all material times, the Unit was located on Site 12 in the 25 siteSherwood Estates mobile home park. [26] The purchase funds for the Unit were provided by the Claimant by way of a personal loan from the Royal Bank of Canadaobtained by the Claimant (the “Purchase Loan”).
The Purchase Loan principal amount was $16,000 with interest at a rate equal to PrimeRate plus 5.14% equalling 7.84% at the outset and the date of advancing of funds being April 7, 2016. The term was 48 months withmonthly payments of $389.38. The Purchase Loan proceeds were fully advanced in April 2016 being several months prior to completionof the purchase of the Unit. Daryl made no financial contribution to the purchase of the Unit nor was he responsible to the Royal Bank ofCanada for the Purchase Loan.
Daryl was unable to get a loan in his own right. [27] In addition to the purchase price of the Unit, the Purchase Loan proceeds were used for the purchase adjustments and the relatedlegal expenses. The balance was made available to Daryl to cover the landlord’s requirements for the first and last month’s rent and forinsurance coverage to be arranged by Daryl.
The Purchase Loan was unsecured and relied only on the covenant of the Claimant, thusthere were no security interests or other charges registered against the Unit. [28] In addition to arranging the Purchase Loan, the Claimant also spent approximately $1,500 to purchase a bed for the Daryl tofurnish the Unit and also spent approximately $200 to $300 for bedding and pillows for Daryl’s use in the Unit.
[ 29 ] The Claimant expected that Daryl would make payments of approximately $400 per month to the Claimant to cover the monthly instalments due under the Purchase Loan. The Claimant did not carefully track the payments received from Daryl but the Claimant believes that such payments were made for four or five months, but ceased prior to December 2017. There was apparently no follow up by the Claimant with Daryl about the payments ceasing.
This was a casual arrangement and the Claimant’s expressed view in his evidence was that any non-payment would come out of “Daryl’s share” of the inheritance that eventually would be forthcoming in the future from the Claimant’s estate. As at the date of the trial, the Claimant continued to make the monthly payments on the Purchase Loan to the Royal Bank of Canada. [ 30 ] Sherwood Estates is owned and operated by the Defendant Sherwood of which the Defendant Balderston is an officer and director.
The Defendant Balderston and the other active shareholder, officer and director, Richard Gordon, share management responsibilities. According to the evidence of the Defendant Balderston, he was responsible for on-site issues at Sherwood Estates including tenant complaints and maintenance in the mobile home park. His colleague Mr.
Gordon was responsible for leasing arrangements and other financial matters for the Defendant Sherwood. [ 31 ] Prior to the completion of the purchase Unit, Daryl, as the tenant and the Defendant Sherwood, as landlord, entered a month to month tenancy arrangement (the “Tenancy Arrangement”) for the occupation of Site 12, by way of an approved Application for Tenancy signed December 24, 2016. Rent was payable on the first day of each month commencing February 1, 2017 in the amount of $575 per month but, as I understand, the commencement was subsequently deferred to March 1, 2017.
The Claimant was intentionally not a party to that Tenancy Arrangement, although his name, telephone number and his then Victoria residential address were in the Application for Tenancy but only as an emergency contact person.
As will be seen below, that decision to not be joined as a tenant became very problematic for the Claimant. [ 32 ] The Defendant Balderston explained in his evidence that notwithstanding multiple approaches made to Daryl by the representatives of the Defendant Sherwood requesting him to sign the formal tenancy agreement contemplated by the Application for Tenancy, Daryl failed or refused to do so after he took possession of the Unit on Site 12.
Apparently Daryl also failed to comply with his requirement as a tenant, as set out in the Application for Tenancy, to provide “proof of ownership of the manufactured home by submitting a copy of the Manufactured Home Transfer of Ownership form as per Sections 5 or 7 of the Manufactured Home Act .” [ 33 ] On September 9, 2017 the Defendant Sherwood, as landlord, served Daryl, as the tenant, with a Notice to End Tenancy for Unpaid Rent, which was given pursuant to s. 39 and 45 of the MHPTA (the “Notice to End Tenancy”) because of his default in payment of rent due for the months of August and September 2017.
Pursuant to the Notice to End Tenancy and specifically pursuant to s. 39(1) of the MHPTA , the Defendant Sherwood sought to terminate the tenancy 10 days from Daryl’s receipt of the Notice to End Tenancy. Daryl made a partial payment on account of the rental arrears by way of a direct deposit of $475 on September 20, 2017 but failed to make payment within five days of all overdue rent pursuant to s. 39(4) (a). Also, Daryl did not make an application pursuant to s. 39(4)(
b) for a dispute resolution. [ 34 ] The Defendant Sherwood sought an immediate Direct Request Proceeding in order to obtain an order for vacant possession of Site 12 but it was only granted an interim decision for a Notice of a Dispute Resolution Hearing, set for December 11, 2017 (the “December 11, 2017 Hearing”). The basis for this interim order was the lack of a signed formal tenancy agreement and the Defendant Sherwood’s sole reliance on the approved Application for Tenancy signed December 24, 2016.
Daryl continued to occupy the Unit on Site 12 up to and following the December 11, 2017 Hearing. [ 35 ] Upon completion of that hearing the Dispute Resolution Services of the Residential Tenancy Branch issued an order (the “Order for Possession”) requiring Daryl to deliver full and peaceable vacant possession and occupation of Site 12 to the Defendant Sherwood within two days of service of that Order for Possession upon Daryl.
Daryl did not participate in the December 11, 2017 Hearing nor did he, or anybody on his behalf, apparently file any documents in the proceedings. [ 36 ] The Claimant was not informed, nor was he served with any documentation nor did he become aware of any proceedings against Daryl for the non-payment of rent.
The Claimant did not participate in December 11, 2017 Hearing nor did he receive any notice of it because he was not a tenant of Site 12. [ 37 ] Service of the Order for Possession upon Daryl was completed by way of registered mail sent to his address on the Application for Tenancy which was the same address as in the Mobile Home Registry being the civic address for Site 12. Daryl did not vacate Site 12. Daryl remained in possession of the Site 12 and the Unit. [ 38 ] The Defendant Sherwood then sought and obtained a Writ of Possession from the Supreme Court of British Columbia on December 20, 2017.
The Defendant Sherwood retained the services of Consolidated Civil Enforcement BC Inc. (the “Court Bailiffs”) to execute the Writ of Possession, to remove the personal items belonging to Daryl to a storage locker, to change the locks of the Unit and to thereby gain peaceable vacant possession and occupation of both Site 12 and the Unit on behalf of the Defendant Sherwood. Following these procedures, the Unit remained located on Site 12 and was unoccupied. [ 39 ] Thereafter the Defendant Sherwood purportedly dealt with the Unit under the regulation provisions of
Part 6 – Abandonment of Personal Property of the MHPTR and on the basis that the Unit was abandoned personal property within the meaning of s. 34 of that regulation. That procedure included sending by registered mail Notice of Disposition required by s. 37(2)(
a) of the MHPTR to the Claimant and to Daryl. However, the Defendant Sherwood used the address for both of them contained in the records of the Manufactured Home Registry, being the mailing address for Site 12 for that notice (the “Mailed Notice of Disposition”). The Mailed Notice of Disposition was returned by Canada Post as “unclaimed”. Therefore the Mailed Notice of Disposition was not mailed to the actual residence of the Claimant, who by now had relocated from his Victoria residence to his new residence in Duncan. [ 40 ] The procedures under
Part 6 of the MHPTR also included publication of the Notice of Disposition pursuant to s. 37(2)(
b) of the Regulations in the Sooke News Mirror newspaper on January 31, 2018, again naming the Claimant and Daryl (the “Published Notice of Disposition”). No response was received by the Defendant Sherwood to the Published Notice of Disposition from anybody. [ 41 ] Besides Daryl, the Claimant was also named in both the Mailed Notice of Disposition and the Published Notice of Disposition
because the Defendant Sherwood had by way of a search in the Manufactured Home Registry determined that the Unit was jointly owned by Daryl and by the Claimant. [ 42 ] Thereafter the Defendant Sherwood undertook steps to purportedly dispose of the Unit pursuant to the provisions of
Part 6 of the MHPTR and to transfer registered ownership of the Unit into the name of Jeff Zigay, with the assistance of a notary public. That occurred sometime after April 20, 2018, being the date on the Ownership Transfer form which was submitted to the Manufactured Home Registry to complete the transfer into Jeff Zigay’s name.
Immediately prior to this transfer of registration occurring the Unit had remained registered in the names of the Claimant and Daryl. [ 43 ] Besides the Ownership Transfer document, an Affidavit of Abandonment and Sale, sworn by Richard Gordon on April 19, 2018 as an authorized signatory of the Defendant Sherwood, was submitted to the Manufactured Home Registry. [ 44 ] In that Affidavit of Abandonment and Sale, Mr.
Gordon deposed that the Unit, which was situated in the Sherwood Estates mobile home park, had been left in that mobile home park by the Claimant and Daryl as “tenants of the Park in circumstances amounting to abandonment”. In the Affidavit of Abandonment and Sale, Richard Gordon further deposed that upon determining that the Unit had been abandoned, the Unit had been dealt with pursuant to
Part 6 of the MHPTA and after complying with the requirements of
Part 6, the Unit was sold to Jeff Zigay on the 18 th day of April, 2018. The Affidavit of Abandonment and Sale further says that it was made for the purposes of establishing that Jeff Zigay had acquired a marketable title to the Unit, free of all encumbrances. The referenced date of April 18, 2018 appears to coincide with the date that two separate $3,000 cheques were transferred into the Defendant Sherwood’s business account. [ 45 ] The Ownership Transfer or Change document shows the consideration amount paid by Jeff Zigay to the Defendant Sherwood to be $6,000. [ 46 ] The Claimant testified that he was never informed nor provided with any formal notification under
Part 6 of the MHPTR about the disposition or pending disposition of the Unit to Jeff Zigay by the Defendants, except by way of a brief initial discussion he had with Jeff Zigay, outside the Unit at Site 12. [ 47 ] At no point before or after the original purchase of the Unit by the Claimant and Daryl, and continuing up to approximately March or April 2018, did the Claimant ever introduce himself to, provide documentation to, or contact any representatives of the Defendant Sherwood to inform them of his ownership interest in the Unit, his financial arrangements with Daryl or otherwise.
The Claimant did not make any inquiries about the status of Daryl’s monthly rental payments for Site 12 to the Defendant Sherwood. In his own words, the Claimant left all of that up to Daryl and “I trusted him”. Similarly, no information was forthcoming or calls made to the Claimant by the Defendants with respect to any of these matters. [ 48 ] In early February 2018, the Claimant sent Daryl a birthday card which was “Returned to Sender” by Canada Post. That prompted the Claimant to travel from Duncan to Sherwood Estates to locate Daryl. The Claimant believes that to be in or around early March 2018.
It was the Claimant’s first visit to the Unit, or at least one of the few visits ever made to the Unit or to Sherwood Estates subsequent to its purchase. Again that date for the on site visit is challenged by the Defendants because the Claimant ties his visit into his brief meeting with Jeff Zigay. [ 49 ] According to the Claimant, it was upon his arrival at Site 12 that he noted a number of people removing items from the Unit; the Claimant took this to be part of a renovation of the Unit which was then underway.
He spoke to one of the workers who referred him to another individual who was also present and as it turned out, was Jeff Zigay. As a result of the Claimant’s discussions with Jeff Zigay, the Claimant came to understand that Mr. Zigay had purchased the Unit from the Defendant Sherwood. Mr. Zigay provided the Claimant with the Defendant Balderston’s business telephone number in Victoria. [ 50 ] There is a disagreement about when this discussion may have occurred but the Claimant says it was in or around March 2018 that the Claimant became aware of Mr.
Zigay’s apparent acquisition of the Unit from the Defendant Sherwood.
That date is challenged by the Defendants on the basis that Jeff Zigay was not permitted to do any work on the Unit until the Defendant Sherwood received funds from Jeff Zigay which was some time in April 2018. [ 51 ] Following his discussions with Jeff Zigay, the Claimant then took his concerns to the Sooke detachment of the RCMP but was told that they could not assist him, presumably because it was considered to be a civil matter rather than a criminal matter. [ 52 ] At some point the Claimant then called and spoke to the Defendant Balderston to raise concerns about the apparent disposition of the Unit in which he had an ownership interest, all without any notice having been received by him.
The date of that telephone discussion is uncertain. The Claimant contends it was shortly after his March 2018 meeting with Jeff Zigay. Again, the Defendants say it was much later in April 2018. [ 53 ] When the Claimant did not get any satisfaction from his telephone discussions with the Defendant Balderston, he sought advice from the constituency offices of two separate local Members of the Legislative Assembly.
That led the Claimant to obtain required information from the Duncan courthouse to initiate a claim with the Residential Tenancy Branch. [ 54 ] The Claimant did not testify as to an exact date as to when he went to the Duncan courthouse but in his Notice of Claim, he pleads that it was April 17, 2018 that he so attended, at which time he apparently became aware of Daryl’s “forced eviction” from Site 12 by the Defendant Sherwood.
He apparently then also became aware of the Writ of Possession issued in the Supreme Court of British Columbia on December 20, 2017. [ 55 ] In or about April 2018, the Claimant met with the Defendant Balderston at the Defendant Sherwood’s Victoria offices. During that meeting, the Claimant apparently asserted his rights of ownership with respect to the Unit and the Defendant Balderston denied that the Claimant had any such right.
Again, there is a dispute and conflicting evidence about the date of that in person meeting. [ 56 ] The Claimant then filed an Application for Dispute Resolution with the Residential Tenancy Branch on April 20, 2018 and
served the Defendants. As I understand it, the Claimant sought to dispute the Notice to End Tenancy on the basis that it had not been served upon the Claimant by the Defendant Sherwood, as landlord. In that Application the Claimant also sought compensation for his monetary loss or other money owed in the amount of $18,000 for the destruction of the Unit. A Notice of Dispute Resolution Proceeding set the matter for a hearing by way of telephone conference call on October 25, 2018.
The Claimant apparently sought some legal advice regarding this Application for Dispute Resolution but for expense reasons dealt with it on his own. [ 57 ] At the telephone conference hearing conducted on October 25, 2018 (the “October 25, 2018 Hearing”), the Residential Tenancy Branch Arbitrator dismissed the Claimant’s Application, including the claim for monetary compensation on the basis of a want of jurisdiction to consider the matter.
This decision was based upon the Claimant’s own confirmation that he was never a tenant under the Manufactured Home Park Tenancy Act nor was he representing the former tenant (that is Daryl) in the subject dispute before the Tenancy Branch Arbitrator. [ 58 ] In the meantime on October 2, 2018, the Claimant filed a Notice of Claim to start this Small Claims action and the Defendants filed their Reply on October 19, 2018. Evidence of the Claimant [ 59 ] The Claimant testified that when he first spoke to Jeff Zigay it was in March 2019.
Before the Claimant had actually disclosed his ownership interest in the Unit to Jeff Zigay, the Claimant’s evidence is that in their conversation Mr. Zigay said that he had obtained a “sweet deal” on the purchase of the Unit.
Jeff Zigay was not called as a witness by any of the parties. [ 60 ] The Claimant testified that when he first spoke with the Defendant Balderston on the telephone he found him to be off hand and dismissive about the Claimant’s claim to and concerns about the Unit and then stated that as a “third party” the Claimant was not entitled to documents or information about the Unit and its disposition. [ 61 ] The Claimant says that at the April 2018 in person meeting with the Defendant Balderston, the Defendant Balderston did not tell him about any intention to dispose of the Unit nor was he told about the completion of any sale of the Unit. [ 62 ] The Claimant testified that he did not receive any notification from any source nor any telephone calls about the outstanding rents or actions being taken against the Unit.
Notwithstanding that he had moved from Victoria to Duncan in the Cowichan Valley, his telephone number appearing in the Application for Tenancy remained active and operative for him. Specifically the Claimant says that he did not know that there was a newspaper known as the Sooke News Mirror and he did not see the Published Notice of Disposition regarding the Unit published by the Defendant Sherwood in the January 31, 2018 edition.
He was aware of the practice of mini storage operations publishing notices in newspapers about the proposed disposition of various personal properties left at their sites. [ 63 ] The Claimant further testified that had he known about the sale of the Unit or had he known he could “challenge the sale”, he would have done so. He was not specific about what he would have done.
In cross-examination he agreed that he had not and did not take any steps or make any inquiries to protect his interest in the Unit other than to make his filing with the Residential Tenancy Branch. [ 64 ] He was asked in cross-examination if he had ever viewed the inside of the Unit after Daryl had taken occupation. He stated that the last occasion of viewing the Unit was around July 2017. When asked about his observations of the interior condition he only made mention about a minimal level of disarray such as an unmade bed but otherwise he stated it was “quite normal”.
He agreed that Daryl was responsible for the maintenance and upkeep of the Unit and accordingly that the Claimant was not. [ 65 ] The Claimant testified that he became aware of a subsequent listing of the Unit, apparently by Jeff Zigay, at an offer price of $124,900. He called the listing realtor about it on October 16, 2018. He agreed that the real estate listing being Exhibit 1, document 2.8 reflected a significantly renovated and improved manufactured home from what the Unit was like when he and Daryl had completed their purchase.
The listing described it as “beautifully updated” and the listing contains an extensive list of those updates and additions. [ 66 ] According to the discussions the Claimant had with the listing realtor, he learned that there were three offers received and the now renovated and improved Unit sold for $135,900. The Realtor was not called as a witness. [ 67 ] The Claimant did not obtain any formal valuation or appraisal of the Unit as it existed at the time that the Defendant Sherwood had gained vacant possession of the Unit or prior to any improvements being made by Jeff Zigay.
As previously noted, no valuation was obtained by the Claimant prior to the purchase of the Unit by the Claimant and Daryl. [ 68 ] When asked in examination-in-chief about his reaction to his treatment by the Defendant Balderston and by inference the Defendant Sherwood he stated “it has been a nightmare” that he has had to “live everyday”.
He says that it has “changed” his retirement”. [ 69 ] I gather from the whole of the Claimant’s evidence he does not know the present whereabouts of Daryl nor has he had any communication or contact with Daryl for several months and certainly none after the disposition of the Unit to Jeff Zigay. Daryl was not called as a witness. Evidence of the Defendant Balderston [ 70 ] The Defendant Balderston testified that he had no personal interest in Sherwood Estates except by way of his shareholdings in the Defendant Sherwood.
I take it from his evidence at all material times he was acting in a representative capacity for the Defendant Sherwood and not in his own personal capacity. [ 71 ] The Defendant Balderston knew Daryl and dealt with him during his occupancy of Site 12. The Defendant Balderston confirmed that he tried repeatedly and unsuccessfully to get Daryl to sign a Manufactured Home Site Tenancy Agreement.
The absence of that signed agreement resulted in the interim decision of the Residential Tenancy Branch to issue a Notice of a Dispute Resolution Hearing, for December 11, 2017, which thereby delayed the Defendant Sherwood from gaining vacant possession of the Unit and Site 12
for several months after Daryl’s default in payment of rent. [ 72 ] The Defendant Balderston stated that during the period of Daryl’s occupation of Site 12, he had to deal with a number of complaints received by the Defendant Sherwood from other residents of Sherwood Estates.
These complaints were about Daryl, his large number of “guests” and other unknown persons described as “squatters” causing disturbances in Sherwood Estates as well as the problems of non-payment of rent by Daryl for Site 12. [ 73 ] There were also complaints and allegations received by the Defendant Sherwood from other residents of Sherwood Estates about illicit drug use and drug activity in the Unit, vandalism of personal property owned by other residents of Sherwood Estates and episodes of other residents being confronted by unknown individuals, all of which was perpetrated by persons in occupation of the Unit at the Site 12.
These complaints necessitated several attendances by the RCMP to Sherwood Estates. [ 74 ] The Defendant Balderston met with Daryl in or around September 9, 2017 about these various concerns. On that occasion, there were three or four unknown occupants inside the Unit and two unknown individuals camping outside. This meeting preceded the service of the Notice to End Tenancy. The Defendant Balderston noted that at that time Daryl had physical difficulties standing on his own, caused by what the Defendant Balderston believed was drug impairment.
The Defendant Balderston further stated that Daryl “did not seem to have control of the situation”, being the number of individuals occupying the Unit or congregating on Site 12. [ 75 ] Following the issuance and service on Daryl of the Order for Possession, the Defendant Balderston had dealings with and provided instructions to the Court Bailiffs on behalf of the Defendant Sherwood in connection with the execution of the Writ of Possession.
The Defendant Balderston received the Court Bailiffs’ report, the accounting of funds including the paid invoice of the Court Bailiffs and also acknowledged on behalf of the Defendant Sherwood the receipt of full and peaceful possession of the Unit and Site 12 pursuant to the Writ of Possession, all on January 5, 2018. [ 76 ] The Defendant Balderston then prepared a “Summary of Accounting” for Site 12 on behalf of the Defendant Sherwood being Exhibit 1, document 6.1 which shows all outstanding rents and expenses, including the Court Bailiff expenses and notary fees as at April 2018 of $8,948.54. [ 77 ] According to the Defendant Balderston’s evidence, this was the first occasion, in the many years of operation of Sherwood Estates that the Defendant Sherwood ever had been required to take all of these necessary steps to gain vacant possession and then deal with the disposition of a manufactured home located in Sherwood Estates. [ 78 ] He testified that he received information that Daryl had abandoned the Unit from a named representative of the Court Bailiffs, with whom he was dealing.
The Defendant Balderston then used this information in the preparation and filing of the Affidavit of Abandonment and Sale under the MHPTR .
This Affidavit was sworn by Richard Gordon on April 19, 2018 and used in connection with the ultimate completion of the sale and the transfer of registered ownership of the Unit to Jeff Zigay, the date of which the Defendant Balderston believed to be on or about April 23, 2018. [ 79 ] According to the Court Bailiffs’ report, Daryl’s personal belongings that Daryl wished to retain, along with the household appliances, were transported by professional movers to a mini storage obtained by the Court Bailiffs at the pre-paid expense of the Defendant Sherwood for a period of 30 days.
The Court Bailiffs’ report further stated that Daryl, as the tenant, “was able to deal with storage contents within 21 days”. Therefore following this process no personal property belonging to Daryl remained in the Unit but the Unit remained unoccupied on Site 12.
In addition, some four separate one ton truck loads of debris taken from in and around the Unit and Site 12 were removed out of Sherwood Estates at the direction and cost of the Defendant Sherwood. [ 80 ] Once the Defendant Sherwood had gained vacant possession of the Unit, the Defendant Sherwood as landlord was faced with a significant number of problems. According to the Defendant Balderston’s evidence these problems flowed from a number of factors. The Unit was 45 years old and the usual life expectancy of such a mobile home was some 30 years.
However, that life expectancy required a level of ongoing maintenance to have occurred, which was not the case for the Unit. An inspection revealed that the Unit had not been maintained at all and was in a state of complete disrepair. That disrepair included walls and coverings that were in poor condition, a leaking roof, collapsed ceilings due to water ingress, puddles of water on the floor, rotten and mouldy floors, an inadequate foundation, and broken and leaking windows.
The porch and veranda area leading to the front door of the Unit was rotting out and loose boards had been placed on it to permit some continued use and ingress and egress by the previous occupants. [ 81 ] Besides the significant level of disrepair there were a number of safety concerns affecting the Unit’s continued use and occupation.
When the Defendant Balderston toured the Unit with the Court Bailiffs, a number of dangers were observed: there were unsecured loose and potentially dangerous electrical wiring in places where walls had been cut open and the wires pulled out and there were used hypodermic needles in and around the Unit and Site 12. [ 82 ] A significant concern to the Defendants was that there was an absence of a required certification or approval mark for the electrical equipment located in the Unit as required by the Electrical Safety Regulation made under the Safety Standards Act of British Columbia.
To obtain that required certification or approval mark, significant re-wiring work was required by a qualified electrician. This would likely entail a significant dismantling of or opening up of the interior walls and such electrical work would require the ultimate approval of a Provincial electrical inspector. The minimum estimated cost of the work was in the range of $3,000. The Defendant Sherwood was not obliged nor prepared to expend those funds, especially given the age and very poor condition of the Unit. [ 83 ] The Defendant Balderston and Mr.
Gordon were aware of this electrical certification requirement based upon their long time experience in the manufactured home park business, as well as the Defendant Balderston’s additional experience of some 47 years as an Accredited Appraiser and a member of the Appraisal Institute of Canada, holding the highest designation granted by that professional Institute. [ 84 ] Parenthetically I note that the Defendant Balderston did not testify as an expert in this matter but his experience and qualifications came up in cross-examination.
The Defendant Balderston has been qualified and accepted as an expert in appraisals by courts in British Columbia. He continues to work as an Accredited Appraiser.
[ 85 ] The Defendant Sherwood approached a licensed realtor who held a listing on another manufactured home in Sherwood Estates but there was no interest in entering into a listing agreement without the required electrical certification being completed and without that certification the Unit could not be listed on the Real Estate Board’s MLS service. [ 86 ] The Defendant Sherwood approached the largest Vancouver Island manufactured home dealer (the “Dealer”) with whom they had dealt with previously.
The purpose was to discuss the possibility of the Dealer removing the Unit at the Dealer’s expense in exchange for the Defendant Sherwood’s approval to grant a tenancy to the Dealer to acquire the tenancy rights to Site 12 and to thereby permit the Dealer to place a new 24 foot “double wide” unit on Site 12. [ 87 ] A similar arrangement with the Dealer had been made approximately three or four years previously for another site in Sherwood Estates. The Dealer declined the offer and verbally quoted a cost to the Defendant Sherwood of some $10,000 to demolish and remove the unit.
No representative of the Dealer was called as a witness. [ 88 ] The Defendant Balderston also spoke with the executive director of the British Columbia Manufactured Home Park Owners Association about potential solutions for dealing with aged, uncertified mobile homes. Through those discussions it became apparent that the situation faced by the Defendant Sherwood was an industrywide problem, and the expense of dismantling and removal of these older types of mobile homes was in the approximate range of some $8,000 to $10,000 per mobile home.
The executive director was not called as a witness. [ 89 ] According to the evidence of the Defendant Balderston, the most cost-effective approach for the Defendant Sherwood was to negotiate the disposition of the Unit to a person qualified to completely renovate the Unit in order to make it saleable and habitable. [ 90 ] The Defendant Balderston further testified that given that any prospective purchaser would have to be approved in the usual course as a tenant by the Defendant Sherwood, as landlord, it was also important that the Defendant Sherwood maintain control over the type and quality of renovation work that a prospective tenant would complete in order to make the Unit safe and habitable. [ 91 ] On this basis, the Defendant Sherwood then approached a local contractor who was a resident of Sherwood Estates but could not come to any satisfactory financial arrangement with him.
In the meantime, the Defendant Sherwood began to field calls from individuals who had apparently seen an advertisement for the sale of the Unit on a local online buy-sell website. These callers were seeking to find out about obtaining landlord approval in order to acquire Site 12. Although the representatives of the Defendant Sherwood were unable to verify it themselves, they understood that the “ask price” for the Unit on the website was in the range of some $20,000.
They also were not able to verify it but they believed that it was Daryl who was seeking to sell the Unit at this price. [ 92 ] It was through such a phone call to the Defendant Sherwood inquiring about landlord approval for the Unit to remain in Sherwood Park that the Defendants first became aware of and subsequently met Jeff Zigay.
Based upon Jeff Zigay’s contracting experience and his knowledge of manufactured home renovations, the Defendant Sherwood then engaged in further discussions and negotiations with Jeff Zigay. [ 93 ] The negotiations between the Defendant Sherwood and Jeff Zigay started with an offer from Jeff Zigay to pay approximately $2,000 for a short term License to Occupy, being an instrument commonly used in the manufactured home park industry. A License to Occupy is often issued in order to permit renovation of or removal and reinstallation of replacement manufactured homes to occur on a manufactured home site.
Based on initial discussions with Jeff Zigay, the Defendant Balderston understood that Jeff Zigay was trying to locate a used manufactured home to move on to the Site 12 and spent approximately a month to month and a half trying to find such a used manufactured home.
That search apparently was unsuccessful. [ 94 ] At that point, the Defendant Sherwood realized that it was already in a “negative equity” position given their best estimate of the market value of the Unit, the expenses both out-of-pocket and for arrears of rent and the further accrual of rental arrears prior to gaining vacant possession of the Unit and Site 12 and lost rent subsequent thereto. [ 95 ] The Defendant Sherwood negotiated with Jeff Zigay and ultimately entered into an undated Contract of Purchase and Sale of a Manufactured Home on a Rental Pad (the “Contract of Purchase and Sale”) which appears to have been prepared and then signed by Jeff Zigay after his viewing of the Unit and Site 12 on or about April 7, 2018. [ 96 ] The offer to the Defendant Sherwood by Jeff Zigay was left open for acceptance by the Defendant Sherwood until five o’clock on April 18, 2018 and was executed on that date by the Defendant Sherwood.
Under the terms of the Contract of Purchase and Sale the agreed purchase price was $6,000 for the Unit, which was sold on a “as is where is basis”. Mr. Zigay was to receive a License to Occupy apparently dated April 7, 2018 for a term from April 7, 2018 and extending to June 30, 2018 for the purposes of being able to renovate “property” during that period of time.
The details as to what was required in order to complete the necessary work on the Unit was not outlined but such work was the subject of on going discussions between the Defendant Balderston and Jeff Zigay. [ 97 ] According to Defendant Balderston’s evidence the amount of $6,000 was paid by Jeff Zigay by way of two electronic transfers. The first was in the amount of $3,000 due by way of electronic transfer on April 8, 2018 as provided for in the Contract of Purchase and Sale. The first cash transfer was made to the personal bank account of the Defendant Balderston and the other to Mr.
Gordon’s personal bank account, all within a short period of time, and prior to April 18, 2018 when the monies were then actually transferred by the Defendant Balderston and Mr. Gordon into the bank account of the Defendant Sherwood. [ 98 ] According to Defendant Balderston’s evidence no work was commenced on the Unit prior to payment in full of the monies due from Jeff Zigay. Thereafter a Notary Public prepared documentation to complete the transfer and the registration of the Unit in the Manufactured Home Registry to Jeff Zigay.
The transfer documentation was executed on April 20, 2018, along with the Affidavit of Abandonment on April 19, 2018. It is uncertain as to when the registration was complete but the Unit was in Jeff Zigay’s name as of May 30, 2018. [ 99 ] The Defendant Sherwood maintained control over the completion of the necessary work on the Unit to an appropriate standard because they were not going to grant the Manufactured Home Site Tenancy Agreement for Site 12 to Jeff Zigay until the work was all
properly completed. Without that tenancy agreement, Jeff Zigay would not be able to sell the renovated Unit. [ 100 ] The Defendant Balderston continuously observed the significant amount of work that was completed by Jeff Zigay and his tradesmen. Essentially the entire Unit was stripped down and gutted to the exterior walls and then entirely rebuilt. A significant amount of work was also done improving and landscaping the area encompassed in the Site 12. [ 101 ] The Defendant Balderston understood that Jeff Zigay eventually sold the completely renovated Unit on Site 12 for the amount of some $130,000.
The Defendant Sherwood did not receive any portion of that sale price paid to Jeff Zigay by the subsequent purchaser. [ 102 ] A new month-to-month tenancy agreement was entered into with the ultimate purchaser from Jeff Zigay, who was approved of as a tenant by the Defendant Sherwood. The new rental rate was based on market rental rates at that time and subject to any increase limitations imposed by the MHPTR .
The pad rental rate for Site 12 was consistent with other pad rental rates in the Sherwood Estates. [ 103 ] The Defendant Balderston testified that there was no direct benefit received by the Defendant Sherwood as a result of the work undertaken by Jeff Zigay in restoring the Unit, but the indirect benefit was to improve the appearance of the Sherwood Estates mobile home park. [ 104 ] The Defendant Balderston agreed in both examination-in-chief and in cross-examination that the Defendant Sherwood did not formally advertise the Unit for sale, noting that they were already aware that somebody, likely Daryl, had already been advertising the Unit with apparent limited success. [ 105 ] The Defendant Sherwood did not obtain a formal independent valuation or appraisal of the Unit.
It was the Defendant Balderston’s belief based on his industry knowledge, his appraisal expertise and the various inquiries made that the Unit had a very limited value and it would be difficult to realize any value given all the existing and complicating factors surrounding the Unit. [ 106 ] Therefore, as I take it, the Defendant Sherwood was simply not prepared to undertake a formal marketing program but rather was relying on personal contacts and communications in order to find an appropriate buyer who had an acceptable plan for the Unit. [ 107 ] The Defendant Balderston was cross-examined at some length on the various timelines and in particular, his first telephone contact with the Claimant, the date of the subsequent meeting with the Claimant and the steps undertaken in connection with of the completion of the sale to Jeff Zigay. [ 108 ] He ultimately conceded that the telephone call from the Claimant to him, in which the Claimant asserted his ownership interest in the Unit, occurred in or around April 16, 2018, which predated the in person meeting he had with the Claimant.
Based upon the Defendant Balderston’s evidence, their telephone call appears to have occurred after the concluded negotiations between Defendant Sherwood and Jeff Zigay and after the payment of one or both of the $3,000 instalments.
The telephone discussions also appear to have predated the likely date of the formal execution of the Contract of Purchase and Sale by the Defendant Sherwood on April 18, 2018 and prior to the formal transfer of the Unit to Jeff Zigay. [ 109 ] The Defendant Balderston testified that he did not mention to the Claimant about the pending sale and transfer to Jeff Zigay based upon the following facts:
a) that the Defendant Sherwood believed it had taken all necessary steps to dispose of the abandoned Unit in accordance with
Part 6 of the MHPTR and in particular after service of the subsequently returned Notice of Disposition required under s. 37(2)(
a) of the MHPTR . That was sent by registered mail to the owners, Daryl and the Claimant, at the address appearing in the Manufactured Home Registry being the civic and mailing address for the Unit located on Site 12;
b) that the Defendant Sherwood had published the Notice of Disposition, specifically naming Daryl and the Claimant, in the Sooke News Mirror on January 31, 2018 as required by s. 37(2)(
b) of the MHPTR ; and
c) neither the Claimant nor Daryl had responded or contacted the Defendant Sherwood within the allowable time nor taken any steps available to them, which I take it to mean under
Part 6 of the MHPTR and in particular under s. 39(2) and (8) of the regulations. [ 110 ] Thus in the Defendant Sherwood’s view the Claimant was “out of time” when he contacted the Defendant Balderston by telephone and then subsequently met with him. [ 111 ] Notwithstanding some uncertainty about the timing of the telephone call and meeting with the Claimant in April 2018, the Defendant Balderston was adamant that Jeff Zigay was not permitted to start any renovation work on the Unit prior to payment of the $6,000 amount to the Defendant Sherwood.
He further testified that all of the debris had been removed from Site 12 and the Unit after vacant possession was achieved through the efforts of the Court Bailiffs and which occurred prior to Jeff Zigay viewing the Unit. [ 112 ] The Defendant Balderston denied the Claimant’s suggestion that the Defendant Sherwood made a “sweet deal” with Jeff Zigay, or that the Defendants sold the Unit to him below its actual value or that they sold it at price that would barely cover what was owed to the Defendant Sherwood by Daryl in terms of rent and had expenses of gaining vacant possession and cleaning up the Unit and Site 12. [ 113 ] The Defendant Balderston testified that Jeff Zigay made an opening offer of $2,000 which was rejected.
The agreed sale and purchase price of $6,000 was in the view of the Defendants, given all of the circumstances, the best offer they would receive and solved the problem of the disposition of an old, uncertified mobile home, which they learned was a difficult problem for the entire mobile home park industry. The Statutory and Regulation Regime [ 114 ] To assist the parties and the readers of these reasons for judgment the following are the provisions of the MHPTA that are relevant to this case and to which reference has already been made or may subsequently be made in these reasons:
Manufactured Home Park Tenancy Act
Part 1 — Introductory Provisions Division 1 — General What this Act applies to 2
(1) Despite any other enactment but subject to
section 4 [what this Act does not apply to] , this Act applies to tenancy agreements, manufactured home sites and manufactured home parks.
(2) Except as otherwise provided in this Act, this Act applies to a tenancy agreement entered into before or after the date this Act comes into force. What this Act does not apply to 4 This Act does not apply with respect to any of the following: (
a) a tenancy agreement under which a manufactured home site and a manufactured home are both rented to the same tenant; (
b) prescribed tenancy agreements, manufactured home sites or manufactured home parks. Enforcing rights and obligations of landlords and tenants 6
(1) The rights, obligations and prohibitions established under this Act are enforceable between a landlord and tenant under a tenancy agreement.
(2) A landlord or tenant may make an application for dispute resolution if the landlord and tenant cannot resolve a dispute referred to in section 51 (1) [determining disputes] .
(3) A term of a tenancy agreement is not enforceable if (
a) the term is inconsistent with this Act or the regulations, (
b) the term is unconscionable, or (
c) the term is not expressed in a manner that clearly communicates the rights and obligations under it. Liability for not complying with this Act or a tenancy agreement 7
(1) If a landlord or tenant does not comply with this Act, the regulations or their tenancy agreement, the non-complying landlord or tenant must compensate the other for damage or loss that results.
(2) A landlord or tenant who claims compensation for damage or loss that results from the other's non-compliance with this Act, the regulations or their tenancy agreement must do whatever is reasonable to minimize the damage or loss. Division 3 — During a Tenancy — Rights and Obligations Rules about payment and non-payment of rent 20
(1) A tenant must pay rent when it is due under the tenancy agreement, whether or not the landlord complies with this Act, the regulations or the tenancy agreement, unless the tenant has a right under this Act to deduct all or a portion of the rent.
(2) A landlord must provide a tenant with a receipt for rent paid in cash.
(3) Whether or not a tenant pays rent in accordance with the tenancy agreement, a landlord must not (
a) seize the manufactured home or any other personal property of the tenant, or (
b) prevent or interfere with the tenant's access to the tenant's personal property. (4) Subsection (3) (
a) does not apply if (
a) the landlord has a court order authorizing the action, or (
b) the tenant has abandoned the manufactured home or the manufactured home site and the landlord complies with the regulations. Landlord and tenant obligations to repair and maintain 26
(1) A landlord must (
a) provide and maintain the manufactured home park in a reasonable state of repair, and (
b) comply with housing, health and safety standards required by law.
(2) A tenant must maintain reasonable health, cleanliness and sanitary standards throughout the manufactured home site and in common
areas.
(3) A tenant must repair damage to the manufactured home site or common areas that is caused by the actions or neglect of the tenant or a person permitted in the manufactured home park by the tenant.
(4) A tenant is not required to make repairs for reasonable wear and tear.
(5) A landlord is not required to maintain or repair improvements made to a manufactured home site by a tenant occupying the site, or the assignee of the tenant, unless the obligation to do so is a term of their tenancy agreement.
(6) A landlord's obligations under subsection (1) (
b) apply whether or not a tenant knew of a breach by the landlord of that subsection at the time of entering into the tenancy agreement. Division 4 — At the Beginning or End of a Tenancy — Rights and Obligations Moving insurance or bond 29 On the request of the landlord, a tenant who is moving a manufactured home, or is having a manufactured home moved, on or off a manufactured home site must provide the landlord with a prescribed form of security against damage caused by the move. Leaving a manufactured home site 30 When a tenant vacates a manufactured home site at the end of a tenancy, the tenant must (
a) leave the site reasonably clean, and undamaged except for reasonable wear and tear, and (
b) give the landlord all the keys or other means of access that are in the possession or control of the tenant and that allow access to and within the manufactured home park.
Part 5 — How to End a Tenancy Division 1 — Ending a Tenancy How a tenancy ends 37
(1) A tenancy ends only if one or more of the following applies: (
a) the tenant or landlord gives notice to end the tenancy in accordance with one of the following: (
i) section 38 [tenant's notice] ; (ii)
section 39 [landlord's notice: non-payment of rent] ; (iii)
section 40 [landlord's notice: cause] ; (iv)
section 41 [landlord's notice: end of employment] ; (
v) section 42 [landlord's notice: landlord's use of property] ; (vi)
section 43 [tenant may end tenancy early] ; (
b) the tenancy agreement is a fixed term tenancy agreement that, in circumstances prescribed under section 89 (2) (a.1), requires the tenant to vacate the manufactured home site at the end of the term; (
c) the landlord and tenant agree in writing to end the tenancy; (
d) the tenant vacates the manufactured home site or abandons a manufactured home on the site; (
e) the tenancy agreement is frustrated; (
f) the director orders that the tenancy is ended; (
g) the tenancy agreement is a sublease agreement. (2) [Repealed 2003-81-7.]
(3) If, on the date specified as the end of a fixed term tenancy agreement that does not require the tenant to vacate the manufactured home site on that date, the landlord and tenant have not entered into a new tenancy agreement, the landlord and tenant are deemed to have renewed the tenancy agreement as a month to month tenancy on the same terms. Tenant's notice 38
(1) A tenant may end a periodic tenancy by giving the landlord notice to end the tenancy effective on a date that (
a) is not earlier than one month after the date the landlord receives the notice, and
(
b) is the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.
(2) A tenant may end a fixed term tenancy by giving the landlord notice to end the tenancy effective on a date that (
a) is not earlier than one month after the date the landlord receives the notice, (
b) is not earlier than the date specified in the tenancy agreement as the end of the tenancy, and (
c) is the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.
(3) If a landlord has failed to comply with a material term of the tenancy agreement and has not corrected the situation within a reasonable period after the tenant gives written notice of the failure, the tenant may end the tenancy effective on a date that is after the date the landlord receives the notice.
(4) A notice to end a tenancy given under this
section must comply with
section 45 [form and content of notice to end tenancy] . Landlord's notice: non-payment of rent 39
(1) A landlord may end a tenancy if rent is unpaid on any day after the day it is due, by giving notice to end the tenancy effective on a date that is not earlier than 10 days after the date the tenant receives the notice.
(2) A notice under this
section must comply with
section 45 [form and content of notice to end tenancy] .
(3) A notice under this
section has no effect if the amount of rent that is unpaid is an amount the tenant is permitted under this Act to deduct from rent.
(4) Within 5 days after receiving a notice under this section, the tenant may (
a) pay the overdue rent, in which case the notice has no effect, or (
b) dispute the notice by making an application for dispute resolution.
(5) If a tenant who has received a notice under this
section does not pay the rent or make an application for dispute resolution in accordance with subsection (4), the tenant (
a) is conclusively presumed to have accepted that the tenancy ends on the effective date of the notice, and (
b) must vacate the manufactured home site to which the notice relates by that date.
(6) If (
a) a tenancy agreement requires the tenant to pay utility charges to the landlord, and (
b) the utility charges are unpaid more than 30 days after the tenant is given a written demand for payment of them, the landlord may treat the unpaid utility charges as unpaid rent and may give notice under this section. Landlord's notice: cause 40
(1) A landlord may end a tenancy by giving notice to end the tenancy if one or more of the following applies: (
a) the tenant is repeatedly late paying the rent; (
b) there are an unreasonable number of occupants on the manufactured home site; (
c) the tenant or a person permitted in the manufactured home park by the tenant has (
i) significantly interfered with or unreasonably disturbed another occupant or the landlord of the manufactured home park, (ii) seriously jeopardized the health or safety or a lawful right or interest of the landlord or another occupant, or (iii) put the landlord's property at significant risk; (
d) the tenant or a person permitted in the manufactured home park by the tenant has engaged in illegal activity that (
i) has caused or is likely to cause damage to the landlord's property, (ii) has adversely affected or is likely to adversely affect the quiet enjoyment, security, safety or physical well-being of another occupant of the manufactured home park, or (iii) has jeopardized or is likely to jeopardize a lawful right or interest of another occupant or the landlord; (
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;
(
f) the tenant does not repair damage to the manufactured home site, as required under section 26 (3) [obligations to repair and maintain] , within a reasonable time; (
g) the tenant (
i) has failed to comply with a material term, and (ii) has not corrected the situation within a reasonable time after the landlord gives written notice to do so; (
h) the tenant purports to assign the tenancy agreement or sublet the manufactured home site without first obtaining the landlord's written consent or an order of the director as required by
section 28 [assignment and subletting] ; (
i) the tenant knowingly gives false information about the manufactured home park to a prospective tenant or purchaser viewing the manufactured home park; (
j) the manufactured home site must be vacated to comply with an order of a federal, British Columbia, regional or municipal government authority; (
k) the tenant has not complied with an order of the director within 30 days of the later of the following dates: (
i) the date the tenant receives the order; (ii) the date specified in the order for the tenant to comply with the order.
(2) A notice under this
section must end the tenancy effective on a date that is (
a) not earlier than one month after the date the notice is received, and (
b) the day before the day in the month, or in the other period on which the tenancy is based, that rent is payable under the tenancy agreement.
(3) A notice under this
section must comply with
section 45 [form and content of notice to end tenancy] .
(4) A tenant may dispute a notice under this
section by making an application for dispute resolution within 10 days after the date the tenant receives the notice.
(5) If a tenant who has received a notice under this
section does not make an application for dispute resolution in accordance with subsection (4), the tenant (
a) is conclusively presumed to have accepted that the tenancy ends on the effective date of the notice, and (
b) must vacate the manufactured home site by that date. Form and content of notice to end tenancy 45 In order to be effective, a notice to end a tenancy must be in writing and must (
a) be signed and dated by the landlord or tenant giving the notice, (
b) give the address of the manufactured home site, (
c) state the effective date of the notice, (
d) except for a notice under section 38 (1) or (2) [tenant's notice] , state the grounds for ending the tenancy, and (
e) when given by a landlord, be in the approved form. Order of possession for the landlord 48
(1) If a tenant makes an application for dispute resolution to dispute a landlord's notice to end a tenancy, the director must grant to the landlord an order of possession of the manufactured home site if (
a) the landlord's notice to end tenancy complies with
section 45 [form and content of notice to end tenancy] , and (
b) the director, during the dispute resolution proceeding, dismisses the tenant's application or upholds the landlord's notice.
(2) A landlord may request an order of possession of a manufactured home site in any of the following circumstances by making an application for dispute resolution: (
a) a notice to end the tenancy has been given by the tenant; (
b) a notice to end the tenancy has been given by the landlord, the tenant has not disputed the notice by making an application for dispute resolution and the time for making that application has expired; (
c) the tenancy agreement is a fixed term tenancy agreement that, in circumstances prescribed under section 89 (2) (a.1), requires the tenant to vacate the manufactured home site at the end of the term;
(c.1) the tenancy agreement is a sublease agreement; (
d) the landlord and tenant have agreed in writing that the tenancy is ended.
(3) The director may grant an order of possession before or after the date when a tenant is required to vacate a manufactured home site, and the order takes effect on the date specified in the order.
(4) In the circumstances described in subsection (2) (b), the director may, without any further dispute resolution process under
Part 6 [Resolving Disputes] , (
a) grant an order of possession to the landlord, and (
b) if the application is in relation to the non-payment of rent, grant an order requiring payment of that rent. What happens if a tenant does not leave when tenancy ended 50
(1) In this section: " new tenant " means a tenant who has entered into a tenancy agreement in respect of a manufactured home site but who is prevented from occupying the manufactured home site by an overholding tenant; " overholding tenant " means a tenant who continues to occupy a manufactured home site after the tenant's tenancy is ended.
(2) The landlord must not take actual possession of a manufactured home site that is occupied by an overholding tenant unless the landlord has a writ of possession issued under the Supreme Court Civil Rules.
(3) A landlord may claim compensation from an overholding tenant for any period that the overholding tenant occupies the manufactured home site after the tenancy is ended.
(4) If a landlord is entitled to claim compensation from an overholding tenant under subsection (3) and a new tenant brings proceedings against the landlord to enforce his or her right to possess or occupy the manufactured home site that is occupied by the overholding tenant, the landlord may apply to add the overholding tenant as a party to the proceedings. Director's orders: delivery and service of documents 64
(1) The director may order that a notice, order, process or other document may be served by substituted service in accordance with the order.
(2) In addition to the authority under subsection (1), the director may make any of the following orders: (
a) that a document must be served in a manner the director considers necessary, despite sections 81 [how to give or serve documents generally] and 82 [special rules for certain documents] ; (
b) that a document has been sufficiently served for the purposes of this Act on a date the director specifies; (
c) that a document not served in accordance with
section 81 or 82 is sufficiently given or served for purposes of this Act. Division 3 — Enforcement of Director's Orders Director's orders may be filed in Supreme Court 77
(1) A decision or an order of the director may be filed in the Supreme Court and enforced as a judgment or an order of that court after (
a) a review of the director's decision or order has been (
i) refused or dismissed, or (ii) concluded, or (
b) the time period to apply for a review has expired. (2) Subsection (1) applies whether the decision or order is interim, temporary or final. 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. 78
(1) This
section applies to a decision or an order of the director if (
a) the decision or order is for financial compensation or the return of personal property, and (
b) the amount required to be paid under the decision or order, excluding interest and costs, or the value of the personal property is within the monetary limit for claims under the Small Claims Act .
(2) A decision or an order described in subsection (1) may be filed in the Provincial Court and enforced as a judgment or an order of that court after (
a) a review of the director's decision or order has been (
i) refused or dismissed, or (ii) concluded, or (
b) the time period to apply for a review has expired.
Part 7 — General Matters Division 1 — How to Give or Serve Documents How to give or serve documents generally 81 All documents, other than those referred to in
section 82 [special rules for certain documents] , that are required or permitted under this Act to be given to or served on a person must be given or served in one of the following ways: (
a) by leaving a copy with the person; (
b) if the person is a landlord, by leaving a copy with an agent of the landlord; (
c) by sending a copy by ordinary mail or registered mail to the address at which the person resides or, if the person is a landlord, to the address at which the person carries on business as a landlord; (
d) if the person is a tenant, by sending a copy by ordinary mail or registered mail to a forwarding address provided by the tenant; (
e) by leaving a copy at the person's residence with an adult who apparently resides with the person; (
f) by leaving a copy in a mailbox or mail slot for the address at which the person resides or, if the person is a landlord, for the address at which the person carries on business as a landlord; (
g) by attaching a copy to a door or other conspicuous place at the address at which the person resides or, if the person is a landlord, at the address at which the person carries on business as a landlord; (
h) by transmitting a copy to a fax number provided as an address for service by the person to be served; (
i) as ordered by the director under section 64 (1) [director's orders: delivery and service of documents] ; (
j) by any other means of service prescribed in the regulations. Special rules for certain documents 82
(1) An application for dispute resolution or a decision of the director to proceed with a review under Division 2 of
Part 6, when required to be given to one party by another, must be given in one of the following ways: (
a) by leaving a copy with the person; (
b) if the person is a landlord, by leaving a copy with an agent of the landlord; (
c) by sending a copy by registered mail to the address at which the person resides or, if the person is a landlord, to the address at which the person carries on business as a landlord; (
d) if the person is a tenant, by sending a copy by registered mail to a forwarding address provided by the tenant; (
e) as ordered by the director under section 64 (1) [director's orders: delivery and service of documents] .
(2) An application by a landlord under
section 48 [order of possession for the landlord] , 49 [application for order ending tenancy early] or 49.1 [order of possession: tenancy frustrated] must be given to the tenant in one of the following ways: (
a) by leaving a copy with the tenant; (
b) by sending a copy by registered mail to the address at which the tenant resides; (
c) by leaving a copy at the tenant's residence with an adult who apparently resides with the tenant; (
d) by attaching a copy to a door or other conspicuous place at the address at which the tenant resides; (
e) as ordered by the director under section 64 (1) [director's orders: delivery and service of documents] .
(3) A notice under
section 80.5 [notice of administrative penalty] must be given in a manner referred to in subsection (1). When documents are considered to have been received
83 A document given or served in accordance with
section 81 [how to give or serve documents generally] or 82 [special rules for certain documents] , unless earlier received, is deemed to be received as follows: (
a) if given or served by mail, on the 5th day after it is mailed; (
b) if given or served by fax, on the 3rd day after it is faxed; (
c) if given or served by attaching a copy of the document to a door or other place, on the 3rd day after it is attached; (
d) if given or served by leaving a copy of the document in a mailbox or mail slot, on the 3rd day after it is left. Division 2 — Application of Other Law Common law applies 84 Except as modified or varied under this Act, the common law respecting landlords and tenants applies in British Columbia. [ 115 ] To assist the parties and the readers of these reasons for judgment the following are the provisions of the MHPTR that are relevant to this case and to which reference has already been made or may subsequently be made in these reasons: Manufactured Home Park Tenancy Regulation
Part 6 — Abandonment of Personal Property Abandonment of personal property 34
(1) A landlord may consider that a tenant has abandoned personal property if (
a) the tenant leaves the personal property on a manufactured home site that he or she has vacated after the tenancy agreement has ended, or (
b) subject to subsection (2), the tenant leaves the personal property on a manufactured home site (
i) that, for a continuous period of one month, the tenant has not ordinarily occupied and for which he or she has not paid rent, or (ii) from which the tenant has removed substantially all of his or her personal property.
(2) The landlord is entitled to consider the circumstances described in paragraph (1) (
b) as abandonment only if (
a) the landlord receives an express oral or written notice of the tenant's intention not to return to the manufactured home site, or (
b) the circumstances surrounding the giving up of the manufactured home site are such that the tenant could not reasonably be expected to return to the manufactured home site.
(3) If personal property is abandoned as described in subsections (1) and (2), the landlord may remove the personal property from the manufactured home site, and on removal must deal with it in accordance with this Part. (4) Subsection (3) does not apply if a landlord and tenant have made an express agreement to the contrary respecting the storage of personal property. Landlord's obligations 35
(1) The landlord must (
a) store the tenant's personal property in a safe place and manner for a period of not less than 60 days following the date of removal, (
b) keep a written inventory of the property, (
c) keep particulars of the disposition of the property for 2 years following the date of disposition, and (
d) advise a tenant or a tenant's representative who requests the information either that the property is stored or that it has been disposed of.
(2) Despite paragraph (1) (a), the landlord may dispose of the property in a commercially reasonable manner if the landlord reasonably believes that (
a) the property has a total market value of less than $500, (
b) the cost of removing, storing and selling the property would be more than the proceeds of its sale, or (
c) the storage of the property would be unsanitary or unsafe.
(3) A court may, on application, determine the value of the property for the purposes of subsection (2). Tenant's claim for abandoned property
(1) If a tenant claims his or her personal property at any time before it is disposed of under
section 35 or 39 [disposal of personal property] , the landlord may, before returning the property, require the tenant to (
a) reimburse the landlord for his or her reasonable costs of (
i) removing and storing the property, and (ii) a search required to comply with
section 37 [notice of disposition] , and (
b) satisfy any amounts payable by the tenant to the landlord under this Act or a tenancy agreement.
(2) If a tenant makes a claim under subsection (1), but does not pay the landlord the amount owed, the landlord may dispose of the property as provided by this Part. Notice of disposition 37
(1) For the purposes of this section: " financing statement " has the same meaning as in the Personal Property Security Act ; " security interest " has the same meaning as in the Personal Property Security Act ; " serial number " has the same meaning as in
section 10 of the Personal Property Security Regulation [collateral described by serial number] made under the Personal Property Security Act .
(2) Not less than 30 days before disposing of an item of personal property referred to in
section 34 [abandonment of personal property] , the landlord must (
a) give notice of disposition to any person who (
i) has registered a financing statement in the Personal Property Registry using the name of the tenant or the serial number of the property, (ii) is registered as an owner of a manufactured home in the Manufactured Home Registry, if the property is a manufactured home, and (iii) to the knowledge of the landlord
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