Coquitlam tenant loses court challenge over $21,600 eviction compensation

A former Coquitlam tenant has lost a BC Supreme Court challenge over her bid for $21,600 in compensation after she was evicted so her landlord’s daughter could move into the apartment — but the daughter never did.

Justice Terence Schultes dismissed Mozghan Bahadori Nia’s application for judicial review in an Aug. 4 decision, finding she had not been denied procedural fairness during a Residential Tenancy Branch (RTB) hearing that ultimately sided with her former landlord.

Bahadori Nia began renting the Coquitlam apartment, owned by Kian Bahaie, in 2014. In August 2019, Bahaie gave her a two-month notice to end the tenancy on the grounds that his daughter intended to move into the unit. It was undisputed that she ultimately did not.

Under B.C.’s Residential Tenancy Act at the time, a landlord could end a tenancy if they or a close family member intended in good faith to occupy the unit. If that purpose was not fulfilled, the tenant could be awarded a payment equal to 12 months of rent, unless extenuating circumstances could be proven.

After learning Bahaie’s daughter had not moved in, Bahadori Nia applied for a claim against her former landlord.

At the first RTB hearing in July 2020, Bahaie said his daughter planned to move into the apartment to be closer to SFU.

He said that after Bahadori Nia moved out on Nov. 1, 2019, he discovered extensive damage requiring repairs that were not completed until March 2020. By then, the COVID-19 pandemic had shut down in-person classes at the university and his daughter decided to remain at the family home.

An arbitrator initially sided with Bahadori Nia, awarding her 12 months rent. However, that decision was overturned on judicial review in November 2020 because the arbitrator had failed to consider whether there were extenuating circumstances. The dispute was sent back for another hearing.

At the second hearing, Bahadori Nia argued the landlord had never genuinely intended for his daughter to live in the apartment and instead planned to sell it.

She testified Bahaie told her in March 2019 that he wanted to sell the property and she should prepare to leave by the end of the summer. She also said her name remained on the building buzzer after she moved out and calls continued to be forwarded to her cellphone.

Bahaie disputed that account, saying his daughter wanted the apartment to shorten her university commute.

According to his testimony, his daughter partially moved in and used the apartment two or three times a week to study, but did not sleep there because of its condition and ongoing renovations.

Bahaie said the work was delayed by difficulties obtaining supplies and hiring help during the pandemic, as well as the need for strata approval for new flooring. By the time that approval came in February 2020, his daughter’s classes had moved online and she was concerned about COVID-19 exposure in the building.

The RTB arbitrator accepted Bahaie’s evidence and concluded his daughter’s use of the apartment for studying, combined with his efforts to repair it for her, fulfilled the stated purpose of the eviction.

The arbitrator also found that even if it did not, the onset of the pandemic amounted to extenuating circumstances that excused Bahaie from paying the $21,600.

Bahadori Nia then returned to BC Supreme Court, arguing the second RTB hearing had been procedurally unfair.

Her lawyer argued she was not given a meaningful opportunity to cross-examine Bahaie and the arbitrator did not clearly distinguish between testimony and final submissions during a hearing in which Bahadori Nia represented herself while Bahaie had a lawyer.

She also alleged the arbitrator prevented her from relying on statements from other residents who said they had not seen anyone living in the apartment after she left. Photos she said showed the condition of the apartment when she moved out were also apparently missing from the RTB’s hearing materials.

Schultes acknowledged that participants in RTB hearings are entitled to a high degree of procedural fairness and that cross-examination can sometimes be required when a key witness’ credibility is at issue.

However, there was no transcript from the first day of the RTB hearing, meaning the court could not determine what the arbitrator had initially told the parties about their rights to question each other’s evidence.

The judge ultimately found Bahadori Nia had been given an adequate opportunity to challenge her former landlord’s account.

“Without endorsing the arbitrator’s approach of simply having parties provide their respective testimonies and submissions, I cannot say that it resulted in any injustice in these particular circumstances,” Schultes wrote.

Schultes also briefly questioned one aspect of the RTB’s reasoning, noting the apartment was listed for sale within six months of Bahadori Nia moving out and that it was “arguable whether studying amounts to a residential purpose” for occupying a rental unit.

However, that finding had not been challenged as patently unreasonable and the RTB arbitrator had separately concluded the pandemic amounted to extenuating circumstances.

On the missing move-out photos, Schultes said that in an ideal situation the arbitrator would have alerted Bahadori Nia that the images were not before her, but concluded the omission did not make the hearing unfair.

The court dismissed Bahadori Nia’s petition and awarded Bahaie his costs.