A B.C. Supreme Court judge has sided with a tenant after a Richmond landlord deliberately declined his rent payment and then evicted him for outstanding rent.
Henri Mbulu rented a room in a house on Blundell Road for $650 per month for almost four years. The house, owned by the landlord Xuanming Wu, had eight rooms available for renting.
The house was managed by the landlord's brother, Chunming Zhang, who lived there while Wu lived overseas.
In September 2023, Mbulu was served with a 10-day notice to terminate his tenancy, which claimed he had not paid his August rent.
However, Mbulu's online banking records showed he had sent the rent by e-transfer in July but the money was returned to his account.
In an automated message from Mbulu's financial institution shown in court, it stated the money was returned to Mbulu's account because Zhang, the landlord's brother, didn't deposit the money.
When he didn't take any steps to dispute the notice, a Residential Tenancy Branch (RTB) adjudicator ruled in favour of the landlord and granted him an order of possession. Mbulu then applied for a review of the decision, where another RTB adjudicator sided with the landlord.
Mbulu subsequently filed a petition for judicial review at the B.C. Supreme Court in Vancouver to set aside the two decisions.
In a decision issued on Jan. 12, B.C. Supreme Court Justice Kevin Loo found the landlord had intentionally declined Mbulu's rent payment as a way to rid the house of what he considered to be a "rogue" tenant.
Loo referred to the landlord's submissions in support of a separate one-month notice to terminate Mbulu's lease for cause, when Zhang said he wanted to "expel Henri (Mbulu) at all costs" and the landlord was considering ending free utilities to do so.
In the submission, Zhang asked the RTB adjudicator to "free us from the mental torment created by Henri" and said, "evicting rogue tenants in B.C. is hard."
Zhang added they refused Mbulu's rent for August "in order to avoid Henri's excuses."
Tenant 'far from blameless' when handling eviction notice
In his decision, Loo found Mbulu to be "far from blameless" when he failed to respond to the eviction notice.
Mbulu told the court he did not believe he had to do so knowing he already paid, but he should have submitted a dispute notice and stated he had paid the rent, said Loo.
Loo added Mbulu should have known the landlord didn't deposit his rent payment and he had the landlord's submissions to evict him for cause by the time he got the 10-day notice for not paying rent. The first time he mentioned the fact that he had already paid rent was in the judicial review application.
However, Loo found the landlord's conduct in filing the misleading 10-day notice "overcomes the deficiencies in (Mbulu's) conduct" and the court should hear Mbulu's arguments about the declined rent payment.
The landlord's fraudulent conduct when he knowingly made a misleading statement about unpaid rent meant the original decision was eligible for review by RTB, said Loo.
Although arguments about rent payment were not brought to the review adjudicator's attention, Loo concluded their decision was "patently unreasonable" for considering Mbulu's payment attempt and the landlord's "intentional decision" to decline rent to evict Mbulu.
No rent from tenant since August 2023
During the hearing, the court also heard Mbulu did not repay the August rent and has been living in the house since without paying rent.
Mbulu was granted an extension to a stay of proceedings in November 2023, with the condition that he repay $2,600 in rent arrears within two days, but he never made the payment.
"It is somewhat troubling that the Tenant did not comply with the terms of the conditional extension granted on November 24, 2023, and that he has been able to live in the property for the duration of the events giving rise to this judicial review without paying any rent," reads Loo's decision.
Loo ultimately decided to set aside both RTB decisions rather than sending them back for reconsideration, because it was unlikely RTB would reconsider and uphold the order in the landlord's favour based on evidence about Zhang's conduct.
He explained it would "make little sense" to expend resources on a reconsideration "likely to be of little practical utility" when the parties and RTB should focus on determining whether Mbulu should pay his now-five months of arrears.
He also declined to award costs of the proceedings to the parties because "the conduct of both parties made this hearing necessary."
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