Executive Summary: Key Legal and Evidentiary Issues

• The arbitrator upheld the landlord’s notice to terminate tenancy based on excess occupancy under the Residential Tenancy Act.

• Appellant claimed the finding of six occupants in her unit was patently unreasonable.

• Supreme Court found the arbitrator’s decision was reasonably supported by evidence.

• Court of Appeal reiterated that judicial review is limited to patently unreasonable errors.

• Appellant's attempt to raise new procedural issues on appeal was rejected.

• Use of bed placement and credibility assessments were deemed valid factual bases by the arbitrator.

Background of the tenancy dispute
Liana Forever, the tenant, challenged her landlord Yu Yin Hsu’s notice to terminate her tenancy due to an alleged unreasonable number of occupants in her rental unit. This notice was issued under section 47(1)(c) of the Residential Tenancy Act, which allows termination for cause, including over-occupancy. A Residential Tenancy Arbitrator found that at least six people were living in Ms. Forever’s unit, which exceeded what was considered a reasonable number for that space.

Initial judicial review and rehearing
Ms. Forever first succeeded in a judicial review in October 2023, when Justice A. Ross found the arbitrator had acted patently unreasonably by disregarding certain evidence. The case was sent back for rehearing. On rehearing, a new arbitrator again found that there were at least six people living in the unit, basing this conclusion on evidence such as the number and positioning of beds and credibility assessments. The arbitrator also determined that this number constituted unreasonable occupancy under the Act.

Second judicial review and appeal
The appellant challenged the arbitrator’s renewed findings by way of a second judicial review. The chambers judge dismissed her petition, holding that the arbitrator's decision was not patently unreasonable. On further appeal to the British Columbia Court of Appeal, Ms. Forever argued that the arbitrator’s factual findings and legal conclusions were invalid. She also raised new claims of procedural misconduct, such as the arbitrator’s failure to declare his credentials or independence. However, the appellate court ruled that these new issues could not be introduced at this stage because they had not been raised in the original petition.

Standard of review and judicial deference
The Court of Appeal emphasized the standard of review applicable to administrative decisions under the Administrative Tribunals Act—namely, the patently unreasonable standard. This is the most deferential form of judicial review, requiring that a decision be clearly irrational to be overturned. The Court cited leading authority confirming that only findings that are openly and evidently unreasonable meet this threshold.

Decision of the Court of Appeal
The Court of Appeal unanimously dismissed the appeal. It held that the arbitrator’s findings regarding the number of occupants were grounded in the evidence presented and that his conclusion of unreasonable occupancy was supported by rational reasoning. The Court further concluded that the chambers judge had acted properly in declining to expand the scope of the judicial review to include new arguments. As such, the arbitrator’s decision stood, and the tenancy termination remained valid.

Final procedural direction
Justice Groberman directed that the formal order be finalized promptly and fairly, allowing the appellant time to sign or respond to the draft order. If she declined to sign, the court would review the order and determine whether it could be entered without her agreement. This ensured procedural fairness despite the appellant’s loss on the merits.