Two tenants who were evicted from a Coquitlam home on what they said were false pretenses are entitled to $30,808, following a recent B.C. Supreme Court decision.
An arbitrator with the Residential Tenancy Branch previously awarded the money to William David McMaster and Cynthia-Lee Wohlford. However, property owner Aesuk Kim sought to have that judgment set aside.
In the spring of 2021, McMaster and Wohlford were paying $2,559 a month to live in a home near the Vancouver Golf Club on Ivy Avenue in Coquitlam.
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On April 1, 2021, Aesuk Kim signed a deal to buy the property and, shortly after, asked the sellers to have McMaster and Wohlford move out by July 1.
On July 6, Kim swore that, after inspecting the property, she found: “asbestos, lead and ozone-depleting substances,” which caused “serious health issues for the residents,” according to the judgment.
She subsequently had the house torn down and rebuilt.
While monitoring the demolition, McMaster and Wohlford noticed Kim: “did not appear to have resided in the property after ending the tenancy.”
Claiming their tenancy was ended on false pretenses, McMaster and Wohlford applied for a hearing with the Residential Tenancy Branch.
The tenants claimed Kim told them they could stay in the house, according to the judgment.
“The new owner informed us that we could continue renting. Weeks later gave us an eviction notice because they were going to move in July 1 2021. Instead they boarded up the house and tore it down,” they stated.
Kim did not participate in the hearing.
Persuaded by McMaster and Wohlford’s testimony and photos, the arbitrator concluded Kim took “no steps” to occupy the property after the sale.
The arbitrator awarded the tenants the equivalent of 12 months of rent as well as a $100 filing fee for a total of $30,808.
Contending she wasn’t properly notified, Kim petitioned the court to set aside the Residential Tenancy Branch decision.
Kim alleged the tribunal: “failed to observe the principle of natural justice” by not ensuring all the parties involved were aware of the case. The decision was “unreasonable,” especially considering she “had to tear down the house due to the hazardous material,” according to Kim.
Kim told the court she didn’t know about the arbitrator’s decision until Aug. 4, 2022, when the Land Title and Survey Authority sent her a certificate of judgment.
Chief Justice Christopher Hinkson dismissed Kim’s petition, largely due to her failure to explain numerous delays.
Kim waited 57 days, “before allegedly attending an [Residential Tenancy Branch] office to make inquiries about what recourse she could pursue.” Kim “then delayed over a month before petitioning for judicial review,” Hinkson wrote.
Weak evidence, and the threshold for unreasonable
A judge should not interfere with a tribunal decision unless it is “patently unreasonable,” Hinkson explained.
While the tribunal decision may have deficiencies, “it does not rise to the level of being ‘clearly irrational,’” Hinkson wrote.
Important documents may have been sent to Kim’s former home in North Vancouver, Hinkson acknowledged.
“However, this was the address provided by [Kim] in the notice to end tenancy that was sent on her behalf. And there is no evidence that she ever made any attempt to update this address with her future tenants,” Hinkson wrote.
There was also no indication those documents were returned to sender, Hinkson added.
“While this is weak evidence, it is not ‘no evidence’ as required for the decision to be patently unreasonable,” the judge concluded.
