Maxwell v. Mo

2023 BCSC 493 Maxwell v. Mo

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Maxwell v. Mo, 2023 BCSC 493 Date: 20230329 Docket: S224718 Registry: Vancouver Between: Steve Maxwell and Veronica Chase Petitioners And Yafen Mo and Hanying Liu Respondents Before: The Honourable Justice Thomas Reasons for Judgment Counsel for the Petitioners V. Baylis Counsel for the Respondents: D. Moonje Place and Date of Hearing: Vancouver, B.C. February 9-10, 2023 Place and Date of Judgment: Vancouver, B.C. March 29, 2023 Table of Contents Decision of the arbitrator.. 3 Additional evidence.. 7 The Anthony Affidavit 7 The Hilpert Affidavit 8 The Kocurek Affidavit 8 The Hashimoto Affidavit 9 Legislative Scheme.. 9 Authorities.. 12 Costs.. 15 [1] This is an application to have new and/or fresh evidence admitted at a judicial review of an order made under the Residential Tenancy Act, S.B.C. 2002, c. 78 [RTA] arising from a dispute between the petitioner tenants, Steve Maxwell and Veronica Chase, and the respondent owners. [2] The main issue at the residential tenancy hearing, and the review of the residential tenancy hearing, was whether the owner or her immediate family, had an honest intention to move into the rental unit. [3] The tenants took the position that the owner wanted to terminate their tenancy because of wild parties. There was no "good faith" intention to move into the rental property. Althoughthe owner's son

stated that he wishes to move into the property; this was nothing more thana "bad faith" attempt to circumvent the real reason for the termination. Decision of the arbitrator [4] The hearing occurred on March 17, 2022 and May 12, and 18, 2022. The arbitrator released his decision on May 30, 2022. [5] The arbitrator summarized the relevant facts and his decision as follows: Where a tenant disputes a notice to end a tenancy given by a landlord, the onus is on the landlord to establish that it was given in accordance with the Residential Tenancy Act, and in the case of a Two Month Notice to End Tenancy for Landlord's Use of Property, the landlord must establish good faith intent to use the rental unit for the purpose contained in that Notice. Good faith means an honest intent with no other motive. In this case, the owner's son testified as a witness that he has an honest intent to move into the rental unit. He currently owns other property and rented it out believing he would be moving into the rental property owned by his mother, and changed his identification to show the address of the rental unit. That may have been somewhat presumptuous, however when he could not move into the rental unit, he commenced a tenancy in another unit. He also purchased furniture for his mother and sister to reside in the rental home, and has provided evidence of that, and paid a large deposit for

renovations. The tenant takes the position that the owner's son, who corresponded with the tenant by email never mentioned in any of the correspondence anything about the owner and his sister moving in. However, there is no requirement for that. The tenant also testified that the quote provided by the landlords for renovations is not completed properly, is a scam, and if an upgrade was really meant to be done for the owner to move in, it would be done properly. I have reviewed all of the evidentiary material provided by the parties, and note the sequence of events: · On June 14, 2021 the tenant was advised by the realtor office that the owner is going to sell and put the rental home on MLS. The tenant replies that the tenant will purchase the property in 1 year or less, and the owner will not have to deal with operating costs or realtor fees. · On June 16, 2021 the tenant received an email from the realtor office that the owner "wants to go with his realtor," and states the owner will give some compensation for showings. · On June 21, 2021 the landlord issues a Two Month Notice to End Tenancy for Landlord's Use of Property, effective August 31,2021. The reason for issuing it is the rental unit will be occupied by the child of the landlord or landlord's spouse. That in itself could give rise to an ulterior motive. · On June 23, 2021 the realtor advises the tenant that the owner

doesn't want to sell now. · On August 23, 2021 the landlord's son signed and issued a One Month Notice to End Tenancy for Cause, effective September 30, 2021, citing 9 reasons for ending the tenancy. · On November 2, 2021 a hearing was held wherein the tenant had applied for an order cancelling both notices to end the tenancy and for repairs. The resulting Decision is dated November 3, 2021. A copy of the resulting Decision has been provided for this hearing, which cancels both notices to end the tenancy. It also states that no evidence had been lead by Legal Counsel for the landlords with respect to the Two Month Notice to End Tenancy for Landlord's Use of Property, who was only retained to deal with the One Month Notice to End Tenancy for Cause, and the only evidence lead was that if the tenant left, the owner's son would move in "for sure." · On November 13, 2021 the owner's son placed an advertisement to rent his own property for $5,000.00 per month. · November 16, 2021 the second Two Month Notice to End Tenancy for Landlord's Use of Property was served, effective January 31,2022, stating that the rental unit will be occupied by the child of the landlord or landlord's spouse. · On November 17, 2021 the landlord's son advises the tenant that the previous property manager has been fired, and a Judicial Review will be filed, and both notices to end the tenancy will be

enforced; that the landlord's son must move into the property, no other options, no matter the cost. · On November 22, 2021 the new property manager advises the tenant that he will coordinate with the tenant and the contractor for renovations, and the owner's son will be moving in, and needs to do some measurements of the living room and bedroom for his furniture. · On December 22, 2021 the new property manager recommends a contractor for renovations to the owner's son; and to the contractor stating that the owner's son plans to move into the house on February 1,2022. · On December 27, 2021 the tenant proposes a new date for an inspection and questions whether the contractor intends to view the property to prepare a quote for renovations as requested by the owner's son. or for repairs requested by the tenant. · On December 28, 2021 the landlord's property manager advises the tenant in writing that the landlord's son will move in after completing some renovations and any refusal to provide entry will be a breach and that the property manager will issue a one month notice to end the tenancy. · On January 18, 2022 the new property manager advises the tenant that the contractor will visit to take measurements because the owner's son needs to do some renovations. · On January 19, 2022 the new property manager advises the tenant that he has to move out at the end of January, 2022 or

will have to pay the extra costs of the owner's son. · On January 20, 2022 the owner's son advises the tenant that he has to move in at the end of January, 2022, had just graduated and his salary is not enough to afford a condo; that his mother tries to support him and allows him to move into the house. · On January 21,2022 the landlord served another One Month Notice to End Tenancy for Cause, effective February 28, 2022 citing 3 reasons for ending the tenancy. The One Month Notice to End Tenancy for Cause was cancelled by Legal Counsel for the landlords at this hearing. · On January 30, 2022 the owner's son advises the tenant that he has purchased furniture and items that he plans to deliver to the rental home and move in on February 1, 2022, and that as a result of the tenant's failure to move out, storage fees and compensation will be enforced as against the tenant. · On February 9, 2022 the owner's son sends an email to the contractor stating that the parties are awaiting a hearing on March 17, 2022 and hopes to have the renovation start on March 28, 2022, and that the owner's son is exited to move in and will no longer need to rent a condo. · On February 10, 2022 the owner's son obtains a new BC Identification card, showing the address of the rental home. · On February 12, 2022 the owner's son asks for confirmation of the contractor receiving the deposit for the

renovations, and that the tenants will move out around the end of March, 2022 and the work can commence. · On February 14, 2022 the owner's son seeks a quote for moving into the rental home around March 25 to the end of March, 2022. · On February 21, 2022 the owner's son gives notice to end his tenancy effective March 31, 2022. I accept that the first property manager indicated that the owner intended to sell. Legal Counsel for the landlords submitted that the owner changed her mind and the owner's son testified that he checked and the house was never listed for sale. The Arbitrator who made the November 3, 2021 Decision did not make a finding that the landlords did not have good faith intent, but a finding that the landlords' Legal Counsel didn't lead any evidence in that regard. The owner's son made some presumptuous decisions, such as to rent out his own property on November 13, 2021 prior to issuing the second Two Month Notice to End Tenancy for Landlord's Use of Property. I also accept that there was no mention by the property managers or the owner's son that the owner and daughter intended to move to the rental unit as well. As previously stated, that is not a requirement, only that the rental unit will be occupied by the landlord's child. However, given that the owner's son has made significant attempts to renovate and purchase furniture for his own use in the rental

home, and in the meantime is renting another space, I am satisfied that the owner's son intends to move into the rental unit. I accept the testimony of the landlord's son that he intends to occupy the rental unit, and the tenant's application to cancel the Notice is dismissed. [6] On June 1, 2022 the tenants applied for a review consideration based on the fact that new and relevant evidence that was not available at the time of the original hearing had been obtained. The new evidence was that the owner had issued a further one-month notice to end tenancy dated May 15, 2022 after the tenants had made their closing submissions before the arbitrator. [7] On June 2, 2022 a different arbitrator rejected the application on the basis that the "new" information was available at the time of the original hearing and that the application was more in the nature of an attempt to re-argue the same matters that were before the arbitrator at the original hearing. [8] The arbitrator noted that the review process is not intended to provide a party with an opportunity to present additional evidence that was available but not presented at the original hearing in order to strengthen arguments that are considered but rejected by the arbitrator at the hearing. [9] On June 10, 2022 the tenants applied for judicial review of the arbitrators' decisions and obtained a stay of the order of

possession. Additional evidence [10] The petitioners seek to admit four affidavits into evidence at the judicial review. The Anthony Affidavit [11] In his affidavit, Mr. Anthony affirms as follows: a) On June 10, 2022 he attended at the rental property. Words were exchanged between Mr. Anthony and the owner's son Mr. Ni. As a result of this exchange Mr. Anthony decided to attend at Mr. Ni's property (the "Surrey Property") because he wanted to follow-up with him about the "exchange" that had occurred; b) Mr. Anthony attended at the Surrey Property many times after the exchange but no one was home; c) On August 15, 2022 a neighbour told him that Mr. Ni had been living in the Surrey property in the early spring of 2022 but that nobody was currently living at the property; d) In March or April, 2022 the SPCA attended at the Surrey property and removed dog. [12] The respondents object to the affidavit on the basis that it contains hearsay evidence. I note that at a residential tenancy hearing, hearsay evidence is admissible. However, I find it is unnecessary to determine whether hearsay evidence would be admissible upon a judicial review of a residential tenancy branch hearing. [13] Prior to the arbitration, the petitioners had been provided evidence indicating that the Surrey Property had been rented and that Mr. Ni had moved from the Surrey Property to a rental apartment in

Vancouver. [14] The petitioners say the extra-record evidence is relevant because it goes to whether Mr. Ni was residing in the Surrey Property; and whether he had actually leased the property. [15] The petitioners say that Mr. Anthony's affidavit provides a further basis upon which they could have challenged the good faith intention to move into the rental house at the hearing. The Hilpert Affidavit [16] Mr. Hilpert is a private investigator. In his affidavit he affirms as follows: a) On October 23, 24, 26 to 29, 2022 and on November 2 and four, 2022 no one appeared to be home at the Surrey property; b) Initially there was mail overflowing, and mail on the porch table addressed to the owner son, but this mail had been removed on November 4, 2022; c) The company that provided the storage quote for the beds purchased by Mr. Ni for the Surrey property had not provided any storage services to him. [17] Prior to the hearing, Mr. Ni had sent the tenants an email stating that he was incurring storage costs because they had refused to move out of the rental house. The storage quote was provided to the tenants as part of the pre-hearing disclosure. Mr. Ni subsequently advised that he did not store the beds with the storage company as he was able to store them at his rental apartment where he lived after moving out of the Surrey House. [18] The petitioners say Mr. Hilpert's affidavit

provides a further basis upon which they could have challenged the good faith intention to move into the rental house at the hearing. The Kocurek Affidavit [19] The Kocurek affidavit contains a two-month notice to end tenancy issued by the respondents dated December 22, 2022 in which the reason for ending the tenancy is because the owner and her daughter wished to move into the rental house. [20] Similar to the May 15, 2022 notice to terminate tenancy; the respondents say that this is further evidence of bad faith on behalf of the owner. [21] Although the notice to terminate was dated December 22, 2022; the fact that the owner and her daughter wished to move into the rental house with her son was provided during the hearing. The petitioners asked the arbitrator to draw an inference that this was a recent fabrication and further evidence of bad faith. This position was rejected by the arbitrator. The Hashimoto Affidavit [22] The Hashimoto affidavit contains evidence that Mr. Ni went to school with one of the tenants from whom he leased the Surrey Property; and that he went to high school with the employee at the company from whom he obtained a quote to do renovations on the rental house. [23] The petitioners say that this information is relevant because the property manager used a Craigslist ad to attempt to locate people to rent the property to, and that neither the tenancy

agreement nor quote for renovations were at "arm's length" as Mr. Ni knew the individuals who appear to be high school friends. [24] The petitioners say this information was only discoverable after they received an affidavit from Mr. Ni which indicated that in addition to his first name "Quan", he also went by the name "Daniel". They then were able to obtain Mr. Ni's Facebook friends which were listed under the name Daniel Ni. Legislative Scheme [25] The fundamental principles governing the court's jurisdiction on an application for judicial review of a decision arising from the RTA were summarized in Alfier v. Sunnyside Villas Society, 2021 BCSC 212 at paras. 29-32: [29] The court's role on judicial review is a supervisory one. The court's function is to review statutory decisions to ensure that decision makers stay within the confines of their assigned powers under statute and provide a fair process to the affected parties. The legislative choice to delegate statutory powers to an administrative decision maker, and not the court, is to be respected. It must be assumed that the legislature intended the statutory tribunal to discharge its responsibilities without undue interference by the courts. Such considerations ground the general presumption that, absent contrary indications in the relevant statute, statutory decisions are to be reviewed by the court on the deferential

standard of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23-32. [30] The limited role of the court on judicial review also explains the limits on the court's ability to consider evidence beyond the record that was before the statutory decision maker in the first instance. The admission of extra-record evidence risks usurping the role of the tribunal, and thereby undermining legislative choices. New evidence may be admitted in exceptional cases to show a lack of jurisdiction, a denial of natural justice, or to establish that there was no evidence for a material finding: Duhamel v. Financial Institutions Commission, 2018 BCSC 962 at para.

21. In some cases, new evidence may be admitted to provide the court with general background where a judicial review is procedurally and factual complex and there is a large volume of material to synthesize: British Columbia (Assistant Water Manager) v. Chisholm, 2020 BCSC 545 at para. 12. [31] In the present case, the court's exceptional jurisdiction to receive extra-record evidence is even more constrained by the existence of the right to seek an internal review under s. 79 of the RTA on the basis of new evidence. It seems to me that a party to a judicial review under the RTA would not only be required to bring themselves within the established exceptions for the receipt of extra-record evidence but also explain why they did not invoke their internal right of review. [32] Finally, the role of the court on judicial review also explains the existence of the court's discretion to decline to entertain issues on judicial review that were not raised before the tribunal whose decision is under review. This is because the role of the court on judicial review is to review the reasonableness of the tribunal's decision, not to make decisions of first impression: Johnson v. British Columbia (Workers' Compensation Board), 2011 BCCA 255 at paras. 42-52. [26] In this case, it is important to consider that the administrative body: a) has specific expertise in determining whether an owner has

a "good faith" intention to reside in a property; b) has a specific procedure which enables (i) new evidence and (ii) concerns of fraud to be addressed after a hearing and as part of review of the decision (s. 79 of the RTA); and c) has a process in which significant fines are imposed against owners whom have been found to have a "good faith" intention to reside in a property but in fact do not reside in the property after the tenant has been evicted (s. 52 of the RTA). [27] In my view, the fundamental principles and the enumerated elements specific to the RTA make it clear that the legislature intended that issues of fraud and "good faith" be resolved within the administrative process and that new evidence should only be entertained on judicial review, after satisfactory explanation as to why the internal process was not utilized. There is a sound policy rationale for resolving these issues in the manner prescribed by the legislature. [28] The evidence contained in the Anthony and Hilpert affidavits could, with due diligence, have been pursued prior to the hearing. The additional evidence pertains to legal and evidentiary issues that the petitioners were provided specific notice of, prior to the hearing. The fact that steps to determine if the Surrey Property was occupied only occurred after a post-hearing heated argument between the parties that left the petitioners upset, is

not a satisfactory explanation for not exploring the issue earlier. [29] If the petitioners wished to pursue these issues they should have made inquires prior to the hearing or sought a consideration of the evidence pursuant to s. 79(1) of the RTA. In my view, their failure to do so is fatal to their application. [30] The evidence contained in the Kocurek affidavit was put before the arbitrator in the initial hearing and considered by him. The fact that the notice was formalized after the hearing is of no import. In my view, this is not additional evidence, it is evidence that was considered by the arbitrator in the initial decision. The affidavit is therefore not admissible on judicial review. [31] The Hashimoto evidence was not available to the petitioners until they received the affidavit of Mr. Ni after the hearing and after they had invoked the review of the decision. In my view, this constitutes an explanation for not complying with the administrative process set out by the legislature. Authorities [32] In Davies v. Halligan, 2013 BCSC 2549 at paras. 15-19 Justice Fitzpatrick set out the following principles with respect to the admission of new evidence during a judicial review of a decision under the RTA: [15] The second issue advanced by Mr. Davies is that he subsequently discovered evidence of certain past conduct of Ms. Halligan. He says that this evidence allows him

to argue that Ms. Halligan's experience as a renter has been less than stellar and that she has had disputes with previous landlords. He says that this evidence goes to Ms. Halligan's credibility. He says that if DRO Maddia had known about these further facts, Ms. Halligan's credibility might have been rejected and he might have been successful on the first issue (the "Contract Issue"). [16] Mr. Davies' counsel has referred me to two decisions. The first is Zhu v. Li, 2007 BCSC 1467 where Mr. Justice Ehrcke described the test for adducing fresh evidence: [14] The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484[;] (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) The evidence must be credible in the sense that it is reasonably capable of belief[;] and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the

result. [17] In British Columbia (Public Safety and Solicitor General) v. Stelmack, 2011 BCSC 1244, Madam Justice Russell referred to the admissibility of extra-record evidence at paras. 231-240. She starts from the basic principle that decisions on judicial review are to be made on the record, namely the evidence that was before the DRO. As I said, on the Contract Issue there is no evidence that DRO Maddia disregarded relevant evidence or considered evidence he should not have considered. [18] In any event, Mr. Davies argues that this fresh evidence should be admitted by me for the purpose of either considering the matter myself or the alternative, sending the matter back to the RTB for consideration. In Stelmack, the substance of the decision was: [240] This review of the relevant law leads me to conclude that the Palmer test applies to determine whether extra-record evidence is admissible on issues of jurisdiction and procedural fairness. [19] It is quite evident from the submissions made that this proposed fresh evidence does not relate to matters of jurisdiction or procedural fairness, but to the substantive issue that was before DRO Maddia, namely whether or not the parties had entered into an agreement. So I do not see that these decisions assist Mr. Davies in any respect. [33] I agree, in principle, extra-record evidence may be admissible for purposes of a

jurisdictional review of administrative decisions on issues of jurisdiction and procedural fairness. [34] The petitioners say the owner had no intention of moving into the rental property and that the tenancy agreement entered into for the Surrey Property and the quote for renovations are fraudulent because instead of contracting with strangers, Mr. Ni contracted with people whom he knew. [35] The petitioners state that extra-record evidence of fraud may be admitted on judicial review; subject to the Palmer test of admissibility; to determine issues of procedural fairness. This arises from the principle that a decision obtained by fraud is unfair. They rely upon British Columbia (Public Safety and Solicitor General) v. Stelmack, 2011 BCSC 1244 at para. 235 and Ndachena v. Nguyen, 2017 BCSC 2605 for this proposition. [36] The administrative scheme set up by the legislature creates an internal legislative procedure to deal with allegations of fraud: a) There is an internal reconsideration of decisions based on allegations of fraud; and b) There is a further process upon which a significant penalty can be imposed when it is established, after the termination, that the owner did not have a "good faith" intention to reside in the rented premises. [37] The fundamental issue considered by the RTA in cases such as this, involves an assessment as to whether the owner has a "good faith"

intention to move into the premises. In this case, the petitioners are really attempting to use the extra-record evidence to attack the credibility of Mr. Ni. I say this because the extra-record evidence falls far short of indicating fraud, by itself, within the context of the other evidence considered by the arbitrator, and within the context of all of the evidence and the other extra-record affidavit evidence referred to in these reasons. [38] Within this context, I am not convinced that the Hashimoto evidence addresses an issue of procedural fairness. In my view, its relevance is limited to attacking the credibility of Mr. Ni which would goes to the issue as to whether there was a "good faith" intention to move into the property. [39] If I am wrong on this point, I will consider whether the Hashimoto evidence is admissible under the Palmer criteria: a) the evidence should generally not be admitted if, by due diligence, it could've been adduced at trial provided that this general principle will not be applied is strictly in a criminal case as in civil cases; b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; c) the evidence must be credible in the sense that it is reasonably capable of belief; and d) must be such that if believe it could reasonably, when taken with other evidence adduced at trial, the

expected to have affected the resolved. [40] I am not convinced that the Hashimoto affidavit could reasonably be expected to have affected the result of the decision. I see nothing wrong with contracting with people you are familiar with. [41] The fact that the Surrey Property was advertised for rental on Craigslist does not preclude the property manager from renting the property to people whom the owner knew. In any event, it does not appear that the rental of the Surrey Property played a determinative role in the arbitrator's decision. [42] In my view, the Hashimoto affidavit is not admissible as extra-record evidence at the hearing of the petition. Costs [43] The respondents have been wholly successful and would normally be entitled to costs in any event of the cause given that the issue raised by the application is discrete from the merits of the petition. [44] However, given the allegations of fraud made by the applicants, and the connection of these allegations to the petition; in my view, it is appropriate that the issue of the costs of this application be determined in conjunction with the petition. "Thomas J."