Seignoret v. Bakonyi Holdings Ltd., 2018 BCSC 994

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Seignoret v. Bakonyi Holdings Ltd., 2018 BCSC 994 Date: 20180618 Docket: S183143 Registry: Vancouver Between: Ed Seignoret Petitioner And Bakonyi Holdings Ltd. Respondents Corrected Judgment: The text of the judgment was corrected at paragraph 41 on August 24, 2018 Before: The Honourable Mr. Justice Crawford On judicial review from: An order of the Residential Tenancy Branch, dated January 24, 2018 Reasons for Judgment Counsel for the Petitioner: P.M. Samarakoone Counsel for the Respondents: R. Bakonyi Place and Date of Trial/Hearing: Vancouver, B.C.

April 27, 2018 Place and Date of Judgment: Vancouver, B.C. June 18, 2018 Introduction [ 1 ] Mr. Seignoret petitions the court for judicial review of the decision of the Residential Tenancy Branch (the “RTB”) Arbitrator dated January 24, 2018, granting the landlord an order for possession and upholding a Notice to End Tenancy regarding Mr. Seignoret’s apartment on Selkirk Street in Vancouver, B.C. [ 2 ] Mr. Seignoret is a pensioner and has been a tenant in the rental suite since 1991. He lives there as a month to month tenant, paying $1045 a month. [ 3 ] The landlord has been the same throughout his tenancy.

Grounds for Judicial Review [ 4 ] Although a number of grounds were submitted, two were principally relied upon in argument before me: (1) that the Arbitrator was biased and (2) that the Arbitrator misapprehended a document submitted by Mr. Seignoret, namely a report, with the Vancouver Fire Department logo on it, dated December 6, 2017. Preliminary Matters [ 5 ] Mr. Seignoret sought to amend his petition to seek relief from forfeiture and secondly, to adduce new evidence. [ 6 ] As to the latter, Mr.

Seignoret was seeking to put in evidence an inspection report dated April 12, 2018, i.e. a report made after the RTB hearing. [ 7 ] The law regarding the introduction of new evidence generally relates to evidence that was available before the original hearing but was not known of or was not tendered for good reason. Hearing or finality is a factor. Otherwise trials would never be concluded because the disaffected party would go and seek new evidence and try to reopen the trial or hearing to introduce “new evidence”.

[ 8 ] It follows that the proposed report is not admissible as it is something that could have been obtained before the RTB hearing and was not. [ 9 ] As to the argument regarding relief from forfeiture, that is met directly by a decision of the Court of Appeal in Ganitano v. Metro Housing Corporation , 2014 BCCA 10 [ Ganitano] . While the matter dealt with a failure to pay rent on time, the introductory paragraph reads: [1] The sole issue raised on this appeal is whether s. 24 of the Law and Equity Act , R.S.B.C. 1996, c. 253, empowers a court to grant equitable relief against forfeiture of a residential tenancy.

Section 24 provides: The court may relieve against all penalties and forfeitures, and in granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit. … 5 For the reasons that follow, I would allow this appeal. As I will explain, I am of the view equitable relief is not available against forfeiture of a residential tenancy in the circumstances of this case, as such forfeiture is statutory in nature. [ 10 ] I note that it was a five member quorum because there were earlier discordant precedent decisions.

In short, the Court of Appeal ruled that given the Residential Tenancy Act , S.B.C. 2002, c. 78 [the “ Act ”], creates a statutory forfeiture, the common law cannot intrude to provide different relief under s. 24 of the Law and Equity Act , R.S.B.C. 1996, c. 253. [ 11 ] Here, the landlord has given a notice to end the tenancy on the basis of two sections under the Act : s. 47.1(d)(ii) seriously jeopardizing the health or safety or a lawful right or interest of the landlord or another occupant; or s. 47.1(d)(iii) putting the landlord’s property at significant risk. [ 12 ] I note that the Ganitano case was based on s. 47.1(

b) of the Act , (the tenant was repeatedly late paying rent). The s. 47(2) termination provisions are the same. The tenancy terminations are from the same part of the Act . [ 13 ] It follows that in light of the Ganitano case, which I find applicable, I will not allow the amendment to the pleading. The Arguments [ 14 ] As noted the principal arguments put forth by counsel were: (1) that the tenant had a reasonable apprehension of bias; and (2) the failure of the Arbitrator to give due weight to a document put before the Arbitrator dated December 6, 2017, from the Vancouver Fire Department.

Bias [ 15 ] It is agreed that the parties’ hearing before the RTB on December 29, 2017, was adjourned and recommenced on January 5, 2018.

While RTB hearings normally last about an hour, the first hearing was 97 minutes and the second was 128 minutes. [ 16 ] It is agreed that the Arbitrator sought to settle the matter at the first hearing and again tried to settle the matter at the commencement of the second hearing. [ 17 ] The allegation of bias (that the Arbitrator prejudged the issue) is said to be found in the transcript of the hearing, which I allowed to be introduced as part of the record. [ 18 ] That transcript is of the hearing of January 5, 2018, and at page 8 of the transcript, the Arbitrator asked if the parties would try to settle the matter. [ 19 ] On page nine, the Arbitrator asked if Mr.

Seignoret was agreeable to a settlement based on Mr. Seignoret’s tenancy continuing but contingent on passing an inspection by a person from the Fire department and/or a pest control company. [ 20 ] It is evident that Mr. Seignoret had spoken to a Captain Booth at the Fire Department. The landlord offered to continue the tenancy if Mr. Seignoret had the fire department or a pest control company in on 24 hours notice, and if he passed he could stay on, but if he failed he would have to leave. There was also to be a follow up inspection in three to six months on the same terms. Mr.

Seignoret said he simply wanted the notice of eviction to be cancelled and that he was “prepared to work very constructively with the landlord” with respect to the concerns about safety and health. [ 21 ] It is evident at page 12 that the arbitrator felt an agreement had been made in the previous settlement discussions but Mr. Seignoret had “backed out of the deal”. [ 22 ] It is evident that the Arbitrator felt the time to either settle or hear the matter was now pressing (p. 13) and that Mr. Seignoret was not prepared to make a decision about terms of settlement.

She points out at page 14, “you could be out in two days and I was really trying to help you twice now”, noting the landlord was prepared to give six months occupancy so Mr. Seignoret had the chance to stay and clean up based on inspectors of his choice. [ 23 ] At page 15 the Arbitrator said to Mr. Seignoret she was tired of him causing delay, that he continued to abuse the process, and she was not going to allow that to happen. Mr. Seignoret said he was prepared to proceed with a hearing. [ 24 ] At page 30 the Arbitrator makes it clear to the landlord their evidence has to finish promptly.

[ 25 ] Mr. Seignoret’s evidence begins at p. 33 and ends at page 49. Counsel further points to page 42 where the Arbitrator pointed out both sides had spoken for about half an hour and said to Mr. Seignoret “… I’ll need you to wrap up your submissions soon”. It is evident she was trying to share the time equally between the parties. [ 26 ] It is plain that both sides had put forth the evidence they felt supported their case. [ 27 ] I do not find bias in these references. There is no indication of prejudgment of the issue before the Arbitrator.

In my view the Arbitrator is simply trying to control the process before her, given the apparent guideline of one hour hearings. Patently Unreasonable [ 28 ] The legal test is clear: s. 5.1 of the Act says: Application of the Administrative Tribunals Act 5.1 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

Part 5, reviews under Division 2 of

Part 5 and the imposition and review of administrative penalties under

Part 5.1. [ 29 ]

Section 58 of the Administrative Tribunals Act , S.B.C. 2004, c. 45 [the “ATA ”], reads: Standard of review with privative clause 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 under a 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 to whether, 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 is correctness.

(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. [ 30 ] In Yee v. Montie , 2016 BCCA 256 , Neilson J.A. at paras. 21-22 wrote: [21] The ATA does not define patent unreasonableness as the term applies to questions of fact or law. In Manz v. Sundher , 2009 BCCA 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 on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable. That is not the case here. [22] In Pacific Newspaper Group Inc. v.

Communications, Energy and Paperworkers Union of Canada, Local 2000 , 2014 BCCA 496 at paras. 39-44 , this Court affirmed that the standard of patent unreasonableness is at the high end of the deference spectrum, and endorsed 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 the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason”.

A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. [Citations omitted.] [ 31 ] Thus judicial review is limited. It is not a hearing on the merits. There is not a weighing of the evidence. The administrative tribunal is deferred to unless there is no evidence to support the tribunal’s findings. The Fire Department Report

[ 32 ] Mr. Seignoret in his evidence put forward a document, ostensibly a standard form of the Vancouver Fire and Rescue Services entitled “Home Safety Check Report”, dated December 8, 2017. It gives Mr. Seignoret’s name as the occupant of his apartment on Selkirk Avenue and names two inspectors.

The document covers aspects entitled Kitchen Safety, Electrical, House Keeping, Smoke Alarms and Home Fire Escape Plans, and General Information. [ 33 ] All of the 34 items are marked “safe”. [ 34 ] With respect to the fire department report, the Arbitrator wrote: The tenant denied the landlord’s allegations (as to the condition of the apartment) and claimed that he had an inspection done by the fire department.

Yet, the landlord disputed the entire fire department report, arguing the tenant had not authenticated the one page report, did not produce the authors of the report to testify and did not provide an explanation of the report. I agree and I have taken this into account in attaching little weight to this report. [ 35 ] Further I note in the course of the second day’s hearing the Arbitrator said at page 43 of the transcript that she had warned Mr.

Seignoret at the previous hearing that it was his job to tender witnesses, that he needed to provide context to the report, and tender the witnesses if he was intending to put the report forward, and he had not done that. [ 36 ] The Act gives wide powers to the tribunal in its process: How the hearing may be conducted 74

(1) Subject to the rules of procedure established under section 9 (3) [director's powers and duties] , the director may conduct a hearing under this Division in the manner he or she considers appropriate.

(2) The director may hold a hearing (

a) in person, (

b) in writing, (

c) by telephone, video conference or other electronic means, or (

d) by any combination of the methods under paragraphs (

a) to (c).

(3) The director may administer oaths for the purposes of this Act .

(4) A party to a dispute resolution proceeding may be represented by an agent or a lawyer. Rules of evidence do not apply 75 The director may admit as evidence, whether or not it would be admissible under the laws of evidence, any oral or written testimony or any record or thing that the director considers to be (

a) necessary and appropriate, and (

b) relevant to the dispute resolution proceeding. Director may require persons to attend and produce documents 76

(1) On the request of a party or on the director's own initiative, the director may issue a summons requiring a person (

a) to attend a hearing under this Division and give evidence, or (

b) to produce before the director documents or any other thing relating to the subject matter of the dispute.

(2) A party who requests that a summons be issued under subsection (1) must provide conduct money for the witness in accordance with the rules of procedure established under section 9 (3) [director's powers and duties] .

(3) If a person named in and served with a summons under subsection (1) does not comply with the summons, the person is liable, on application to the Supreme Court, to be committed for contempt as if in breach of a judgment or an order of the Supreme Court. [ 37 ] In terms of the Arbitrator’s decision, the first three pages dealt with preliminary issues, then dealt with the primary matter, namely the Notice to Evict on the basis the landlord’s property had been put at significant risk. There is a two page

summary of the evidence and then three pages of analysis. Central to the Arbitrator’s analysis is her finding that the landlord was a more credible witness than the tenant, and that the landlord’s evidence was straightforward and consistent. She described the tenant’s evidence as changeable and not consistent and therefore less reliable. She accepted the evidence of the landlord and the onsite manager and while giving limited weight to a letter from a plumber who attended the rental unit, found the plumber’s observations were consistent with the observations of the landlord and the manager.

She accepted that photographs of the rental unit in July 2017, were descriptive of the tenant’s unit and she accepted that while there may have been some cleaning up by the tenant, she gave little weight to the fire department report as no one from the fire department spoke to the authenticity or indeed the eye witness evidence that might have been obtained by calling one of the firemen. [ 38 ] On balance then, she found the one month notice to be valid and allowed the landlord’s application to obtain an order for possession for cause.

Decision [ 39 ] On the issue of whether the decision is patently unreasonable, I find the Arbitrator’s decision is not patently unreasonable, that there is evidence supporting her decision and the application for judicial review must be dismissed. [ 40 ] Mr. Seignoret has been a long term tenant. It is not clear to me why a person who is said to be a pensioner has his apartment stacked with boxes of paper. It is apparent (if he has not already done so) he will need time to clear the apartment. [ 41 ] Subject to Mr.

Seignoret paying $1045 for the use and occupation of the Selkirk apartment, I extend the stay of the order of possession to midday June 30, 2018. Then he must leave. [ 42 ] The landlord is entitled to his costs if sought. “Crawford J.”