A Richmond landlord fined $49,200 for a clerical error when terminating a lease has managed to get the decision overturned.
Zhi Yong Xu, who owns a unit on Westminster Highway near No. 6 Road, was ordered to pay his tenants 12 months' rent after they found out his dad had moved in instead of Xu or his spouse, as indicated in his two-month notice.
Xu told the Residential Tenancy Branch (RTB) his real estate agent had marked the wrong circle when filling in the standardized form, mistakenly indicating it would be the landlord or his spouse. According to Xu, it was supposed to indicate a parent was moving in.
However, the RTB arbitrator ultimately found the discrepancy was a "fatal flaw" and ruled in favour of tenants Janice Carol Walmsley and Michael John Penman.
Arguing the arbitrator failed to "grapple with the real issue" and falsely simplified the matter, Xu filed a petition at the B.C. Supreme Court in April in opposition to the ruling.
In a decision issued in August, B.C. Supreme Court Justice Ward Branch sided with Xu but decided the case should be sent back to RTB for reconsideration.
He noted the arbitrator's decision was "largely based on a concern that the landlord had not checked the proper box" on the notice and "this alleged error alone was a sufficient basis to grant the remedy he did."
"However, I conclude that the arbitrator's designation of this error as a 'fatal flaw' was itself a 'fatal flaw' that justifies intervention by this court,' said Branch.
Branch found the arbitrator erred in law and "improperly fettered his discretion" by not considering whether the Residential Tenancy Act could be invoked to allow Xu to amend the notice.
Under Section 68 of the Residential Tenancy Act, the RTB director is allowed to amend the notice in question if they are satisfied the recipient of the notice knew or should have known the information omitted from the notice, and it is reasonable under the circumstances to make the amendment.
Branch added the arbitrator should have "at least considered whether the deviation from the form affected its substance," as it falls under the RTB director's discretion to approve such forms.
He concluded the two errors were sufficient to overturn the RTB decision but it should be sent back for reconsideration so RTB, as a specialist tribunal can consider the policy issues raised by the case and provide a "more fulsome review" of other arguments such as the timing of the move-in and the landlord's "true initial intention."
In particular, Branch suggested RTB comment on how important it is to tell the tenant exactly who is moving in so they can "perform what was referred to at the hearing as a 'sidewalk audit' of who, in fact moved in."
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