A Supreme Court judge has upheld an arbitrator’s order to evict a Richmond tenant for not paying her rent.
The B.C. Supreme Court’s Madam Justice Jacqueline Hughes decided that the Residential Tenancy Branch’s (RTB) order for a tenant to move out of a Richmond home was procedurally fair and not unreasonable.
The tenant, Fuping Li, had petitioned for a judicial review of an RTB ruling, claiming that it was “patently unreasonable” and that the RTB had made errors in addition to acting with “bias and bad faith.”
Li, who rented a house near the intersection of Garden City and Francis roads, received a 10-day notice to end her tenancy from her new landlord, Sarabjit Singh Virk, back in April 2022 for not paying her rent for the month.
She had initially signed a lease with her former landlord in 2018 to rent the house for $2,500 per month, but the rent was reduced in 2019 after a crack in the foundation made one of the rooms unusable.
Li and the former landlord then signed a second lease to reflect the rent reduction to $2,000.
She had also paid a damage deposit of $2,500 to the former landlord, which exceeded the Residential Tenancy Act’s limit of half of one month’s rent.
When Virk bought the house from the former landlord in March 2022, he received a copy of the original lease between Li and the former landlord, and Li was asked to e-transfer her monthly rent of $2,500.
Li did not pay rent when it was due on April 1, 2022 and told Virk’s property manager that the rent was supposed to be $2,000. However, she was unable to provide a copy of the updated lease at the time.
According to court documents, Li had thought Virk was trying to force her to sign a new lease with a $500 illegal rent increase.
A second email was sent to ask Li to pay rent via e-transfer, and Virk ultimately issued a notice to terminate Li’s tenancy when she failed to pay by April 10. Li subsequently gave Virk a copy of the updated lease a few days later.
Both parties filed applications with the RTB, with Li disputing the eviction notice and Virk seeking an order of possession. The RTB arbitrator ultimately determined in August 2022 that the updated lease applied to the situation, but Virk was entitled to evict Li because she failed to pay rent since April.
Li did not pay rent between April and August 2022 while the parties waited for the RTB decision, her reasons being that she was worried about paying the wrong person and the dispute about the rent amount had yet to be resolved.
In Justice Hughes’ reason for judgment, she noted that the errors Li claimed to have been made by the RTB in its decision were “voluminous and somewhat difficult to discern.”
However, the most “palpable” ones include rejecting Li’s testimony that she tried to pay the April rent in cash and concluding that Li had no valid basis to dispute the eviction notice.
RTB rejected Li’s payment claim
In the RTB decision, the arbitrator rejected Li’s claim that she tried to pay $2,000 in cash for April’s rent and was declined by Virk.
The arbitrator wrote that it “does not accord with common sense” that Virk would decline the rent payment “because the whole purpose of a tenancy is to collect rent” and it was “unclear” why Li didn’t just pay by e-transfer if Virk didn’t take cash.
Li was ordered to move out two days after the decision was given and to pay Virk $10,000 in rent from April through August 2022.
Li also questioned the RTB arbitrator’s decision to set the effective date for Virk’s possession order two days after the decision was given, rather than two days after Li receives the decision, and said the arbitrator failed to deduct the unpaid rent from her overpaid damage deposit.
Justice Hughes agreed with the RTB arbitrator that Li failed to prove she had tried to pay her rent in cash, adding that it was “no answer” for Li to claim the arbitrator made a mistake by not asking Virk to prove he refused a cash payment that he said was never offered.
Li’s argument that she should have been entitled to deduct the security deposit overpayment from rent was also rejected, as it was not put forward for the RTB’s consideration and hence should not be raised as an issue during judicial review.
Justice Hughes also decided that the RTB was correct in deciding Virk’s eviction notice complied with the law since there was indeed unpaid rent owed by Li, and Li did not have grounds to dispute the eviction notice since she didn’t pay rent for the subsequent months.
She said that “(Li) identifies no statutory provision or basis in the jurisprudence suggesting she was entitled to withhold rent but remain in possession of (the house)” until Li could identify the new landlord, Virk, or until the rent amount dispute was resolved.
Justice Hughes added that it was not unreasonable for RTB to set the effective date for Virk’s possession order as two days after the decision was given since the RTB has discretion to do so and by then it was already more than four months after the tenancy had ended.
She also rejected Li’s claim that RTB acted on bad faith and bias.
“(Li’s) allegations of bad faith and bias are wholly unsupported in the evidence and appear to arise solely from disagreement with the (arbitrator’s) findings,” said Justice Hughes.
Li’s petition for judicial review was ultimately dismissed and she has been given until the end of the month to move elsewhere.
