Court orders new hearing after evicted Vancouver tenant initially awarded $82K

A new hearing has been ordered in the case of a tenant who had been awarded more than $82,000 after being evicted more than two years ago.

Neal McLennan had been living in a rented, 8,000-sq-ft home on Cartier Street in Vancouver since 2016 when, in September 2022, he received a two-month notice to end tenancy, with the landlord, Xi Chen, claiming she would be moving into the house.

According to the BC Residential Tenancy Act, a landlord is permitted to evict a tenant if they or a close family member are planning on moving into the property for at least 12 months. At the time of this eviction, the requirement was for six months.

At a hearing in May 2024, McLennan argued that Chen hadn’t occupied the house for the required six months, saying he moved to a home nearby and would frequently pass by the house. He says he observed that the property’s gate remained locked, garbage cans were unmoved, and the pool had “deteriorated to a swamp.”

Chen countered this by arguing she had moved into the house in February 2023, submitting photographs, utility bills, copies of takeout food orders, and a photograph of identification with the address on it.

She also had a witness ready to speak during the hearing, who she included to provide further proof of her living at the house. The arbitrator excused the witness, saying they would reach out to her if they needed her.

The arbitrator found Chen’s argument insufficient, saying she hadn’t proven she had occupied the house for six months.

McLennan was awarded $82,480 — the value of 12 months of rent at $6,865 per month — after the Residential Tenancy Branch (RTB) ruled the eviction was in bad faith since Chen failed to move into the house after the tenant had left.

Chen later sought a judicial review of the decision, saying the original hearing was “procedurally unfair” since her witness had not been given the opportunity to present evidence. She also argues the reasons the arbitrator used were “patently unreasonable.”

In a decision published this week, Justice Anita Chan said she agreed that the hearing was unfair to the landlord.

“This was a significant monetary judgment. It was important to both parties,” Chan wrote.

“The landlord had a legitimate expectation that she would be able to call her witness to provide evidence during the hearing. It is difficult to find that the landlord’s right to be heard has been met when she did not have an opportunity to present evidence that she wanted the arbitrator to hear.”

However, Chan disagreed with Chen’s argument that the arbitrator’s reasons were unreasonable.

“The landlord is asking this Court to reweigh the evidence and come to different conclusions. The inferences drawn by the arbitrator were open to her on the evidence, and I do not find the decision to be openly, clearly, evidently unreasonable,” Chan said.

Overall, Chan says the appropriate remedy is to grant a new hearing, given that the hearing was procedurally unfair to the landlord.

“The decision of the arbitrator dated May 22, 2024 is set aside, and the matter is remitted to the RTB for a new hearing,” she said.