Executive Summary: Key Legal and Evidentiary Issues

• Arbitrator upheld eviction based on sustained conduct breaching the tenancy agreement, including safety and disturbance concerns.

• Tenants argued on judicial review that the landlord waived its right to evict via a September 2023 letter.

• Chambers judge ruled in tenants’ favour, holding that the waiver issue was “squarely raised” and not addressed by the arbitrator.

• Court of Appeal found the waiver argument was a new issue improperly considered by the lower court.

• Arbitrator's decision was supported by evidence and not patently unreasonable under the applicable statutory standard.

• Fresh evidence tendered on appeal by tenants was rejected for failing to meet legal admissibility criteria.

Background and tenancy relationship
Canada Lands Company CLC Limited is a federal Crown corporation that owns the Jericho Lands in Vancouver. In 2016, it granted a Licence to Occupy to Gail Marilyn Foran, allowing her to reside in a unit on the property. Gunter Schlieper, her partner, was not a party to the agreement but was considered a “Dependent” under its terms. The licence included strict conduct obligations and incorporated an Occupant Handbook. Between 2018 and 2023, Canada Lands received numerous complaints that Mr. Schlieper had engaged in confrontational and aggressive behaviour towards residents, visitors, and passersby. He was accused of confronting individuals, patrolling the common areas with his dog, and asserting unauthorized authority to enforce trespass laws. Canada Lands issued multiple written warnings stating this behaviour violated the Licence to Occupy.

The eviction notice and RTB hearing
On October 24, 2023, Canada Lands served the tenants with an eviction notice under section 47 of the Residential Tenancy Act (RTA), alleging serious breaches of tenancy terms and substantial interference with other occupants. The tenants contested the notice in a hearing before the Residential Tenancy Branch (RTB). They argued the actions were justified by security concerns and did not violate any legal or contractual obligations. The arbitrator rejected their application to cancel the eviction notice and issued an Order of Possession. The arbitrator found the conduct did amount to a breach and that repeated warnings had been ignored. Mr. Schlieper’s actions, including bringing a dog on “patrol,” were deemed threatening. The arbitrator relied on the no-waiver clause in the Licence and found no justification for the conduct under the Trespass Act or other legislation.

Judicial review before the B.C. Supreme Court
The tenants filed for judicial review. A chambers judge held that the arbitrator’s decision was patently unreasonable because it failed to consider whether Canada Lands had waived its right to evict. The judge pointed to a September 2023 letter from Canada Lands indicating that the tenancy would be extended to January 31, 2024, and argued this amounted to a waiver. Although this waiver argument had not been raised during the RTB hearing, the judge considered it “squarely before” the arbitrator due to submissions made by Canada Lands regarding its leniency. The judge concluded the arbitrator should have addressed the issue and quashed the Order of Possession.

Appeal to the Court of Appeal for British Columbia
Canada Lands appealed. The Court of Appeal allowed the appeal, holding that the waiver issue was not properly before the arbitrator and therefore should not have been considered on judicial review. The chambers judge erred in introducing and deciding a new legal issue, which violated the established limits of judicial review and improperly applied a correctness standard rather than the required patent unreasonableness standard under the Administrative Tribunals Act and the Residential Tenancy Act. The Court emphasized that a reviewing court must restrict itself to the record before the administrative decision-maker. Since waiver was not argued by the tenants at the RTB hearing, the arbitrator had no duty to address it.

Rejection of fresh evidence
The tenants attempted to introduce fresh affidavits on appeal to support their position, including one from another resident. The Court of Appeal applied the Palmer test and found the evidence failed to meet the criteria for admissibility. The affidavits were available at the time of the RTB hearing, not shown to be decisive, and would not have altered the outcome. The application to admit fresh evidence was denied.

Final outcome
The Court of Appeal concluded the arbitrator's decision was well-supported, procedurally sound, and not patently unreasonable. It restored the original Order of Possession issued by the RTB, making it effective 30 days from the appeal decision date of May 1, 2025. The tenants’ judicial review petition was dismissed, reaffirming the importance of procedural boundaries in administrative law and respecting the finality of tribunal decisions when no error of law on the record is present.