Crest Group Holdings Ltd. v. British Columbia (Attorney General)

2014 BCSC 1651 Crest Group Holdings Ltd. v. British Columbia (Attorney General) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Crest Group Holdings Ltd. v. British Columbia (Attorney General), 2014 BCSC 1651 Date: 20140828 Docket: S141566 Registry: Vancouver Between: Crest Group Holdings Ltd. Petitioner And The Attorney General of British Columbia, The Director of the Residential Tenancy Branch of British Columbia, Ray Pernowski, John Barr, Mary Barr, Muriel Reeves, John Orpe, Cesare Screbo, Tony Bigras, Cindy McLean, Ruby Miller, John Starling, Irene Starling, Spyro Titopoulos, Arnold Steffensen, Harriet Steffensen, Stuart Lowe, Roy Cardinal, Linnea McDonald, Arthur Heiduk, Robert Baylis, Dianne Stenberg, Yvonne Fries, Pam Leslie, John Berger, Georette Vaillancourt, Vincent Miller, Mary Miller, Jackline Vaillancourt, and Steve Kollar Respondents Before: The Honourable Mr. Justice Kent On judicial review from: A decision of the Residential Tenancy Branch of British Columbia dated January 10, 2014 Reasons for Judgment In Chambers Counsel for the Petitioner: Michael L. Drouillard Counsel for the Respondent Crown: Christina Drake Counsel for the Respondent Tenants: Kaitlin A. Cooper Place and Dates of Hearing: Vancouver, B.C. August 11-12, 2014 Place and Date of Judgment: Vancouver, B.C. August 28, 2014 Table of Contents Introduction. 3 The MHPTA Rent Control Regime. 4 The Rent Increase Application and Decision. 8 The Administrative Tribunals Act and the Standard of Review.. 11 Submissions of the Parties. 14 Analysis. 15 Introduction [1] Crest Group Holdings Ltd. ("Crest") is the owner and landlord of a 71-site manufactured home rental park in Nanaimo, B.C. known as "Crest Estates". [2] The Manufactured Home Park Tenancy Act, S.B.C. 2002, c. 77 (the "MHPTA") provides for a form of rent control for such parks. The MHPTA stipulates when and how a landlord such as Crest may increase rent for a site in the park. The regime permits yearly rent increases in accordance with a formula set out in the Manufactured Home Park Tenancy Regulation, B.C. Reg. 481/2003 (the "MHPT Regulation"). It also permits a landlord to apply to the Director of the Residential Tenancy Branch of B.C. for an additional rent increase in certain circumstances. [3] In September 2013 Crest applied to the Residential Tenancy Branch for an additional rent increase in respect of 26 sites in the park. The other 27 tenants at Crest Estates had conditionally consented to a $100 per month rent increase. [4] Crest's application was heard in November 2013 by Mr. Richard Maddia, a delegate of the Director (the "arbitrator"). The arbitrator dismissed Crest's application for an additional rent increase and provided reasons for his decision on January 10, 2014 (the "Decision"). [5] Crest now applies for judicial review of the Decision on the basis that: 1. the hearing conducted by the arbitrator was unfair; and 2. the Decision is patently unreasonable. Crest asks that the Decision be set aside and that the additional rent increase application be remitted back to the Director for a new hearing before a new arbitrator. [6] For the reasons that follow, I have concluded both that arbitrator Maddia acted fairly and that his Decision was not patently unreasonable. In the result, Crest's application for judicial review is dismissed with costs. The MHPTA Rent Control Regime [7] Sections 34-36 of the MHPTA set out when and how a landlord may increase rent for a manufactured home park tenancy. Relevant portions include: 34 A landlord must not increase rent except in accordance with this Part. 35(1) A landlord must not impose a rent increase for at least 12 months ... (2) A landlord must give a tenant notice of a rent increase at least 3 months before the effective date of the increase. (3) A notice of rent increase must be in the approved form. (4) If a landlord's notice of a rent increase does not comply with subsections (1) and (2), the notice takes effect on the earliest date that does comply. 36(1) A landlord may impose a rent increase only up to the amount (a) calculated in accordance with the regulations, (b) ordered by the director on an application under subsection (3), or (c) agreed to by the tenant in writing. (3) in the circumstances prescribed in the regulations, a landlord may request the director's approval of a rent increase in an amount that is greater than the amount calculated under the regulations referred to in subsection (1) (a) by making an application for dispute resolution. [8] Section 32 of the MHPT Regulation sets out the calculation for a yearly rent increase that a landlord is allowed by right under the MHPTA. Section 33 of the MHPT Regulation provides the following with respect to the circumstances in which a landlord can apply for an additional rent increase, the factors to be considered on such an application and the orders that may be made after such an application: (1) A landlord may apply under section 36 (3) of the Act [additional rent increase] if one or more of the following apply: (a) after the rent increase allowed under section 32 [annual rent increase], the rent for the manufactured home site is significantly lower than the rent payable for other manufactured home sites that are similar to, and in the same geographic area as, the manufactured home site; (3) The director must consider the following in deciding whether to approve an application for a rent increase under subsection (1): (a) the rent payable for similar sites in the manufactured home park immediately before the proposed increase is intended to come into effect; (b) the rent history for the affected manufactured home site in the 3 years preceding the date of the application; (c) a change in a service or facility that the landlord has provided for the manufactured home park in which the site is located in the 12 months preceding the date of the application; (d) a change in operating expenses and capital expenditures in the 3 years preceding the date of the application that the director considers relevant and reasonable; (e) the relationship between the change described in paragraph (d) and the rent increase applied for; (f) a relevant submission from an affected tenant; (g) a finding by the director that the landlord has contravened section 26 of the Act [obligation to repair and maintain]; (h) whether, and to what extent, an increase in costs with respect to repair or maintenance of the manufactured home park results from inadequate repair or maintenance in a previous year; (i) a rent increase or a portion of a rent increase previously approved under this section that is reasonably attributable to the cost of performing a landlord's obligation that has not been fulfilled; (j) whether the director has set aside a notice to end a tenancy within the 6 months preceding the date of the application; (k) whether the director has found, in dispute resolution proceedings in relation to an application under this section, that the landlord has (i) submitted false or misleading evidence, or (ii) failed to comply with an order of the director for the disclosure of documents. (4) In considering an application under subsection (1), the director may (a) grant the application, in full or in part, (b) refuse the application, (c) order that the increase granted under subsection (1) be phased in over a period of time, or (d) order that the effective date of an increase granted under subsection (1) is conditional on the landlord's compliance with an order of the director respecting the manufactured home park. (5) If the total amount of the approved increase is not applied within 12 months of the date the increase comes into effect, the landlord must not carry forward the unused portion or add it to a future rent increase, unless the director orders otherwise under subsection (4). [9] Section 62 of the MHPTA sets out the amount of a rent increase that the Director may, in his discretion, order on an application for an additional rent increase: 62 If the director is satisfied that the circumstances prescribed for the purposes of section 36(3) [amount of rent increase] apply, the director may order that a landlord is permitted to increase rent by an amount that is (a) greater than the amount calculated under the regulations for the purpose of section 36(1 )(a), and (b) not greater than the maximum rent increase authorized by the regulations prescribed for the purpose of this section. [10] With respect to tenancy dispute resolution proceedings, relevant provisions of the MHPTA regarding jurisdiction and the exclusivity of jurisdiction include: 51(1) Except as restricted under this Act, a person may make an application to the director for dispute resolution in relation to a dispute with the person's landlord or tenant in respect of any of the following: (a) rights, obligations and prohibitions under this Act; (3) Except as provided in subsection (4), a court does not have and must not exercise any jurisdiction in respect of a matter that must be submitted for determination by the director under this Act. 55(1) The director has authority to determine (a) disputes in relation to which the director has accepted an application for dispute resolution, and (b) any matters related to that dispute that arise under this Act or a tenancy agreement. (2) The director may make any finding of fact or law that is necessary or incidental to making a decision or an order under this Act. (3) The director may make any order necessary to give effect to the rights, obligations and prohibitions under this Act, including an order that a landlord or tenant comply with this Act, the regulations or a tenancy agreement. 71.1 Sections 1, 44, 46.3, 48, 56 to 58 and 61 of the Administrative Tribunals Act apply to the director as if the director were a tribunal and to dispute resolution proceedings under Division 1 of this Part and reviews under Division 2 of this Part. 77.1(1) The director has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in a dispute resolution proceeding under Division 1 of this Part or in a review under Division 2 of this Part and to make any order permitted to be made. (2) A decision or order of the director on a matter in respect of which the director has exclusive jurisdiction is final and conclusive and is not open to question or review in any court. [11] With regard to procedures on dispute resolution hearings, relevant provisions of the MHPTA include: 57(2) The director must make each decision or order on the merits of the case as disclosed by the evidence admitted and is not bound to follow other decisions under this Part. 67(1) Subject to the rules of procedure established under section 9 (3) [director's powers and duties], the director may conduct a hearing under this Division in the manner he or she considers appropriate. (2) The director may hold a hearing (c) by telephone, video conference or other electronic means. 68 The director may admit as evidence, whether or not it would be admissible under the laws of evidence, any oral or written testimony or any record or thing that the director considers to be (a) necessary and appropriate, and (b) relevant to the dispute resolution proceeding. [12] The Director of the Residential Tenancy Branch of B.C. has issued a "Policy Guideline" in respect of rent increases permitted under both the Residential Tenancy Act and the MHPTA. Both Acts have the same regime of permitting a landlord to impose a rent increase up to a certain amount calculated in accordance with the MHPT Regulation or alternatively, as ordered by an arbitrator on application. The Guideline, last updated March 6, 2012, is entitled "Residential Tenancy Policy Guideline 37: Rent Increases". It contains the following statement as to its purpose: This Policy Guideline is intended to provide a statement of the policy intent of legislation, and has been developed in the context of the common law and the rules of statutory interpretation, where appropriate. This Guideline is also intended to help the parties to an application understand issues that are likely to be relevant. It may also help parties know what information or evidence is likely to assist them in supporting their position. [13] The Guideline provides a fairly detailed description of the legislation and the processes by which rent can be increased. It specifically discusses the process governing a landlord's application for additional rent increases under the MHPTA, including the "limited grounds" for such application under the MHPT Regulation, namely, that After the allowable Annual Rent increase, the rent for the manufactured home site is significantly lower than the rent payable for the manufactured home sites that are similar to and in the same geographic area as, the manufactured home site. [14] The Guideline expressly defines the terms "similar units" and "same geographic area". It also makes it clear the burden of proof on such applications rests with the landlord and that "additional rent increases will be granted only in exceptional circumstances". [15] The Guideline makes recommendations to landlords as to the sort of information that should be provided on an application for a rent increase including: · "the landlord must clearly set out all the sources from which the rent information was gathered"; and · "specific and detailed information, such as rents for all the comparable units in the residential property and similar residential properties in the immediate geographical area with similar amenities, should be part of the evidence provided by the landlord". The Rent Increase Application and Decision [16] The Decision describes the manner in which the hearing was conducted. The parties have also described the procedure in their respective submissions. [17] The hearing occupied approximately three hours. Crest was represented by legal counsel and called two witnesses to testify, Ms. Elaine McFall, the park administrator, and Mr. Jason Mikes, a real estate appraiser. [18] Two tenants, Mr. Tony Bigras and Mr. Stuart Lowe also attended, representing not only themselves but also all but five of the other tenants named as respondents. Mr. Bigras and Mr. Lowe cross-examined the Crest witnesses and made submissions on behalf of the tenant respondents. [19] Two days before the hearing Crest submitted into evidence a binder with several hundred pages of evidence, argument and also legal authority. This binder had been served only on the lead tenant respondent. [20] Included in the material before the arbitrator was a 45 page "Market Rent Appraisal" prepared by Mr. Mikes on behalf of Crest. The stated purpose of the appraisal was to estimate the "current market rentable value" of the Crest Estate sites which was defined to mean "the most probable rent which a property should bring for the relevant rent term in a competitive and open market under all conditions requisite to a fair rent transaction, the tenant and landlord each acting prudently and knowledgeably, and assuming the rent is not affected by undue stimulus". [21] Part of the appraisal included a comparison of Crest Estates with eight other manufactured home parks. The appraisal concluded that the current rents at Crest Estates (ranging from $227 to $400 per month, averaging at $272 per month), were "well below market levels". Mr. Mikes opined that "based on the analysis of the comparable data, weighing the subject development, location, and services provided, market rent is estimated at $440 per pad per month". [22] The written Decision was divided into several parts namely: 1. Introduction; 2. Issue(s) to be decided; 3. Background and evidence; 4. Analysis; and 5. Conclusion. [23] Arbitrator Maddia noted the distinction between s. 33(1) and s. 33(3) of the MHPT Regulation. The latter mandated eleven factors ("key points") to be considered in determining whether to approve an application for a rent increase. The former sets out the preconditions that must be established in order for a rent increase application to be made, namely that following the annual rent increase permitted by the MHPT Regulation "the rent for the manufactured home site is significantly lower than the rent payable for other manufactured home sites that are similar to, and in the same geographic area as, the manufactured home site". [24] Arbitrator Maddia held that Crest "failed to meet the criteria for Section 33(1)" and therefore dismissed the application for an additional rent increase without undertaking any s. 33(3) analysis. [25] The relevant part of the Decision reads as follows: Prior to considering the 11 key points under Section 33(3) of the Regulation I must determine whether or not the landlord has provided sufficient evidence to establish that after the application of an allowable rent increase, rent for the sites in the subject property are significantly lower than the rent payable for other manufactured home sites that are similar to and in the same geographic area as the subject park. However, in the case before me, I find the data and information provided by the landlord is deficient in two areas vital to the determination of comparable parks and sites. First, I find that to determine whether the subject park and sites are similar to the comparables an important factor to be considered is the general size of the subject sites and the capacity to hold either a single or a double wide home. As the landlord has failed to provide any information on the subject park site sizes, including whether or not there are any sites in the subject park suitable for double wide homes and based on the tenants' undisputed submission I find that the sites in the subject park, in general, are substantially smaller than the majority of the comparables submitted by the landlord. Secondly, as the primary focus of the Appraisal was to determine market rent for new tenancies I find the Appraisal focused very heavily on the rates in the identified comparable parks for new tenancies. While there is some information regarding current tenancies, such as the number of tenants paying the lowest rent in the park; the highest rent in the park; and the average rent in the park there is very little and in some cases no information regarding all of the current rates in the park. As such, I find that the landlord has failed to provide sufficient detail regarding the current rents being paid in the identified comparable parks to determine if the current rents in the identified comparable parks are significantly higher than current rents being paid for the subject park sites. Based on the aforementioned I find there to be insufficient evidence to prove exceptional circumstances have led to rents for the subject sites to be significantly lower than the rent payable for other similar sites. In addition, I find the landlord has failed to provide sufficient evidence of significantly higher rents at comparable park sites. As I have found the landlord has failed to meet the criteria for Section 33(1) I have not considered any of the landlord's evidence in relation to the requirements set out in Section 33(3). Based on the above, I dismiss the landlord's Application for an additional rent increase. The Administrative Tribunals Act and the Standard of Review [26] The parties are agreed, and it is in any event correct that: · Section 71.1 of the MHPTA makes s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 ("ATA") applicable to dispute resolution proceedings in MHPTA matters; · Section 77.1 of the MHPTA constitutes a "privative clause" as defined in s. 1 of the ATA; · hence, s. 58(2) stipulates the standard of review applicable to the present judicial review proceedings; · in respect of (1) findings of fact or law, or (2) a discretionary ruling, the standard of review is "patent unreasonableness" i.e . the decision "must not be interfered with unless it is patently unreasonable"; · with respect to a challenge of an exercise of discretion, the term "patently unreasonable" is statutorily defined by s. 58(3)of the ATA; · however, the ATA does not define the term "patently unreasonable" as it relates to findings of fact or law and its meaning must therefore be derived from the case law including, in particular, Manz v. British Columbia (Workers' Compensation Appeal Tribunal), 2009 BCCA 92 [Manz] at para. 39, and Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 [CAIMAW], at 1003 (para. 19). [27] The relevant paragraph from Manz reads as follows: 39 the well understood meaning of that phrase in relation to factual matters applies, is as described in Speckling: [37] As the chambers judge noted, a decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is "openly, clearly, evidently unreasonable", can it be said to be patently unreasonable. That is not the case here. [Emphasis added.] [28] The relevant paragraph in CAIMAW is as follows: 19 The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 237). The test for review is a "severe test" . This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. [Emphasis added.] [29] The Court of Appeal has set out the process for determining the appropriate standard of review as follows: · determine whether the ATA applies; · if so, the ATA then provides a complete code governing the standard of review and the common law does not apply (s. 58 and s. 59 of the ATA provide the standard of review for statutes that, respectively, have a privative clause and those that do not); · the next step is to then determine the type of question(s) at issue before the tribunal (finding of fact, exercise of discretion, application of the rules of natural justice and procedural fairness, or all other matters); · following characterization of the question(s) in issue, apply the standard of review mandated by the appropriate subsection of the ATA (patent unreasonableness, fairness in all the circumstances, or correctness). See Lavender Co-Operative Housing Assn. v. Ford, 2011 BCCA 114 and Robertson v. British Columbia (Teachers Act, Commissioner), 2014 BCCA 331. [30] If the question in issue involves an exercise of discretion by the tribunal, then the relevant subsections of the ATA prescribe four separate bases for finding patent unreasonableness namely, · exercise of discretion arbitrarily or in bad faith; · exercise of discretion for an improper purpose; · discretion based entirely or predominantly on irrelevant factors; or · failing to take statutory requirements into account. [31] If the question in issue involves a finding of fact or law, the ATA does not expressly prescribe what might constitute patent unreasonableness. Rather, as discussed above, the inquiry is the "severe test" of whether there exists a rational basis for the decision of the tribunal and not whether the reviewing court agrees with the outcome. Submissions of the Parties [32] Crest invokes both s. 58(2)(a) and (b) in seeking judicial review of the arbitrator's ruling in this case. With respect to the latter it submits: · the arbitrator was obliged by statute (s. 57(2) of the MHPTA) to provide a fair hearing, review the evidence, and make a decision on the merits of the case as disclosed by that evidence; · the arbitrator's reasons disclose a pattern of failing to consider Crest's evidence and submissions on almost all issues of importance; · the arbitrator "cherry picked" the evidence and ignored, or at least failed to expressly grapple with, Crest's evidence on the very matters the arbitrator said were important to the outcome; and · the systematic failure of the arbitrator to address the key points of Crest's evidence leads to the conclusion that the tribunal did not act fairly in all the circumstances. [33] In the alternative, Crest invokes s. 58(2)(a) to claim that the findings of fact or law made by the arbitrator were patently unreasonable. In particular, Crest submits: · the arbitrator's reasons respecting Crest's failure to provide evidence about current rents paid for other manufactured home sites were logically inconsistent; · there was no evidence before the arbitrator to support his conclusion that site size was an important factor; · treating as a negative factor the reduction in park services and facilities that had occurred many years previously was inappropriate and, indeed, done without statutory authority; and · Crest put evidence before the arbitrator regarding the start dates for the affected tenancies and their duration, and the arbitrator wrongly treated a perceived failure to provide such evidence as a negative factor. [34] For their part, the tenants submit: · there was no breach of natural justice or procedural unfairness in the proceedings before the arbitrator and, in any event, the arbitrator's reasons alone cannot be the basis for concluding that a breach of natural justice has occurred; · judicial review requires an "organic exercise" of reading the tribunal's reasons together with the outcome of the case and it is clear there was a rational basis for the arbitrator's Decision in this case; · the test of patent unreasonableness requires a high degree of deference to be given to the tribunal's decision and where, as here, there is some evidence to support the arbitrator's findings of fact or law, the Decision cannot be said to be patently unreasonable; · the arbitrator's Decision to dismiss the application for lack of sufficient evidence to establish the threshold criteria required by s. 33(1)(a) of the MHPT Regulation was an exercise of discretion and therefore subject to the s. 58(3) mandated standards of review, none of which are established here. Analysis [35] I must first characterize the issues to be decided on this judicial review proceeding. As indicated, the petitioner invokes both s. 58(2)(a) and (b) in this case. In my view, however: · there has been no breach of the common-law rules of natural justice and procedural fairness, and it cannot be said that in all the circumstances of the case, the arbitrator acted unfairly; · the arbitrator's determination of whether there was sufficient evidence to meet the threshold criteria required by s. 33(1)(a) of the MHPT Regulation was not an exercise of discretion by the arbitrator but rather was a finding of fact or law; hence · the sole question to be decided on review is whether the arbitrator's Decision was patently unreasonable in the sense that there was no evidence to support the findings or there was no rational basis for same. [36] Procedural fairness is comprised of two rights: the right to be heard, and the right to an impartial hearing. The content of procedural fairness goes to the manner in which the decision-maker went about making his decision: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3 at para. 82; Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 102. [37] Adequacy of a decision maker's reasons does not generally give rise to an issue of procedural fairness. Any challenge to the reasoning of the decision should therefore be made within the reasonableness analysis, whether it be "patent unreasonableness" as mandated by the ATA or reasonableness required by the common law as the case may be: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 22. [38] There have been cases where an erroneous decision to reject relevant evidence has such an impact on the fairness of the proceeding that it can only be concluded there has been a breach of the rules of natural justice: Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471 at para. 46. [39] The present case did not involve a refusal to admit relevant evidence. The parties were permitted to lead whatever evidence they considered appropriate and to make lengthy submissions on the issues to be decided. There is nothing in this case to suggest that in all the circumstances the tribunal acted anything but fairly. Any application for review pursuant to s. 58(2)(b) of the ATA must be dismissed. [40] It remains to characterize the issue/question decided by the arbitrator and, in particular, whether it involved an exercise of discretion or a finding of fact or law. [41] It certainly appears that any decision respecting the amount of any rent increase ordered by the director pursuant to s. 62 of the MHPTA is an exercise of discretion ("the director may order that a landlord is permitted to increase rent by an amount "). But the same is not true in respect of the determination of the threshold requirements for a rent increase application as mandated by s. 33(1)(a) of the MHPT Regulation. That section permits a landlord to apply for an additional rent increase if: (a) after the rent increase allowed under s. 32 [annual rent increase], the rent for the manufactured home site is significantly lower than the rent payable for other manufactured home sites that are similar to, and in the same geographic area as, the manufactured home site. [42] In order to meet these criteria, a landlord must adduce evidence sufficient to satisfy the arbitrator that: · there are similar sites in the same geographic area; and · the rent for the site under review is significantly lower than the rent for those other sites. [43] Weighing the existence and sufficiency of evidence on any given point is a classic mixed question of fact and law. It is not a matter of discretion. Rather, the decision-maker must determine (a) whether any evidence on the point exists and (b) whether the evidence is sufficient to prove the point in question in accordance with the applicable standard of proof. [44] The Policy Guideline defines "similar units" as rental units of comparable size, age, construction, interior and exterior ambiance (including view) and sense of community. The arbitrator was clearly entitled to apply these factors, and indeed any other factors that common sense might dictate, in determining whether other comparator manufactured home sites existed. [45] The Policy Guideline also made it clear that with respect to the question of whether rent is significantly lower, the landlord should provide "specific and detailed information such as rents for all the comparable units in the residential property and similar residential properties in the immediate geographical area with similar amenities" [emphasis added]. [46] In the present case the arbitrator determined an "important factor" to be considered in comparing similarity of both parks and sites was "the general size of the subject sites and their capacity to hold either a single or a double wide home". He went on to find, based on the tenants' evidence, that the sites in Crest Estates were in general "substantially smaller than the majority of the comparables submitted by the landlord". [47] The tenants' evidence was that Crest Estates is an old park with small sites, narrow roads and homes placed right against the internal roads. Many of the features required by the Nanaimo Manufactured Home Park Bylaw of 1984 are absent (Crest Estates has been "grandfathered" insofar as that Bylaw is concerned). [48] The tenants' evidence was that contrary to the more modern parks analyzed in the petitioner's expert appraisal report, sites at Crest Estates range from 1,780-3,450 ft.² whereas the sites and the comparator parks analyzed in the expert appraisal were almost all greater than 3,500 ft.² and some were as large as 5,000 ft.². [49] Further, because of the Bylaw setback requirements, approximately 26 sites at Crest Estates are too small or narrow to accommodate a modern manufactured home if the current home were to be removed. Such was not the case with many of the comparator parks analyzed in the expert appraisal report. [50] Hence the tenants argued before the arbitrator that the rents at Crest Estates are justifiably lower than rents at other parks in Nanaimo. [51] The thrust of the petitioner's submissions to the arbitrator on size was that it was an irrelevant consideration. Ms. McFall gave evidence that site size made no difference to the rent charged at Crest Estates. The appraiser expressed the opinion that site size was irrelevant to determining similarity and to determining what rent might be achieved for any site, primarily because there was such a low vacancy rate in the Nanaimo market there was no incentive on the part of a landlord to discount rent because of site size. [52] As indicated, the arbitrator held that site size was an important factor in determining the threshold question of site similarity. He made a finding that the sites at Crest Estates are substantially smaller than the majority of the other parks claimed to be comparable. [53] These were determinations based on the Policy Guideline and the evidence. While this court may not necessarily agree with the arbitrator's Decision on these points, there was evidence to support the findings and there was a rational basis for the Decision. Hence the Decision on this point cannot be said to be patently unreasonable. [54] The second "vital deficiency" in the landlord's evidence respecting comparable parks and sites was, so the arbitrator held, the heavy focus in the expert appraisal report on the rates for new tenancies in the identified comparable parks. While the report provided some information regarding current tenancies (lowest, highest and average rents) there was little and in some cases no information regarding all of the current rates. This led to the arbitrator's finding that "the landlord has failed to provide sufficient evidence of significantly higher rents at comparable parks sites". [55] The expert appraisal report purported to determine the "market rentable value" of the pads at Crest Estates i.e. the most probable rent which could be generated in a competitive and open market. As indicated, the report concludes site size is largely irrelevant due to the high demand in the Nanaimo market and there is no doubt the report does indeed make a point of articulating the (higher) rates charged to "new tenants" in both Crest Estates and six of the eight comparator parks. [56] It is clear that in assessing the threshold requirement of the existence of "significantly lower" rents, the arbitrator wanted more than generalities respecting highest, lowest and average rents. Rather, he considered it necessary for him to be provided better information regarding all of the current rates in the park as well as some rationale for the differences. [57] Again, it is not for this court to substitute its own opinion for that of the arbitrator in weighing the sufficiency of the evidence before him. This court may very well have reached a different conclusion respecting the rent comparison analysis but it cannot be said the arbitrator's Decision on this point was so openly, clearly and evidently unreasonable as to be irrational. [58] In the result, the petitioner's application for judicial review is dismissed with costs. [59] I might add that nothing in these reasons prevents the petitioner from making a further application under the MHPTA and Regulation for an additional rent increase in respect of Crest Estates. Section 57(2) of the MHPTA makes it clear that the Director must decide each case on the merits as disclosed by the evidence and that the Director is not bound to follow other decisions. Hence it is open to Crest Estates to make further application with further and better evidence on the threshold requirement of s. 33(1)(a) of the Regulation and it may very well be that some sort of rent increase may eventually come to pass. "N. Kent J." The Honourable Mr. Justice N. Kent