Executive Summary: Key Legal and Evidentiary Issues

• Whether the landlord's stated intent to use the unit for a caretaker was made in good faith under section 49(6) of the Residential Tenancy Act.

• The arbitrator failed to consider contradictory evidence, including inconsistencies in the landlord’s affidavits and notices.

• No meaningful assessment was made of alternative vacant units available in the building.

• The arbitrator accepted untested affidavit evidence without cross-examination or explanation.

• The landlord's alleged ulterior motive was not properly weighed against the statutory test for good faith.

• The review process failed to cure the original decision’s legal and procedural deficiencies.

Facts and outcome of the case

Background and tenancy history

The petitioner, Janet Fraser, is a 73-year-old tenant who had lived in the same rental unit (Unit #7) for over 20 years, paying significantly below-market rent. She resided in an eight-unit residential building with her partner Jerry, who is deaf and suffers from stage 4 cancer and multiple sclerosis. In October 2023, a numbered company, 1392383 B.C. Ltd., purchased the building and shortly thereafter served Ms. Fraser with an eviction notice. The stated purpose was to convert the unit for use by a live-in caretaker.

An earlier notice (the First Notice) was cancelled due to a technical error (a misspelling of the landlord’s name). The Second Notice, issued in February 2024, claimed the unit would be converted for caretaker use. Ms. Fraser disputed the eviction, arguing the landlord acted in bad faith and was targeting her due to her low rent.

Residential Tenancy Branch proceedings

Ms. Fraser initially succeeded in having the Second Notice cancelled when the landlord failed to appear at a Residential Tenancy Branch (RTB) hearing in April 2024. However, the landlord applied for a review of that decision, resulting in a new hearing in June 2024. At that hearing, the landlord presented an affidavit and employment contract suggesting a caretaker would move in on July 1, 2024. Ms. Fraser argued that the unit was uninhabitable due to flood damage and that the stated caretaker plan was a pretext for eviction. She also highlighted that multiple other units were vacant or suitable for a caretaker and presented evidence of a pattern of improper eviction attempts against other tenants.

The arbitrator ruled against Ms. Fraser, finding that the landlord had acted in good faith and granting an order of possession. Ms. Fraser sought internal review, citing new evidence and inconsistencies in the landlord’s representations. The same arbitrator handled the review and ultimately upheld the original decision.

Judicial review and court findings

Ms. Fraser filed for judicial review of both the Underlying Decision and the Review Decision. The court first addressed whether the judicial review was timely, given that it was filed more than 60 days after the Underlying Decision. The court granted an extension, finding that Ms. Fraser had acted reasonably in pursuing internal remedies first and was disadvantaged due to age, health, and limited legal resources.

On the merits, the court found the RTB’s Underlying Decision to be patently unreasonable. The arbitrator failed to apply the two-part test for good faith under section 49(6) of the Residential Tenancy Act: (1) whether the landlord genuinely intended to follow through with the stated use, and (2) whether that intent was free of ulterior motives. The arbitrator did not meaningfully assess the second part of the test, despite Ms. Fraser raising credible concerns about the landlord’s motivations and presenting evidence of alternative units and inconsistent communications.

The court also criticized the reliance on untested affidavit evidence from the proposed caretaker and the lack of findings addressing Ms. Fraser’s arguments about procedural unfairness and available alternatives. The Review Decision did not cure these deficiencies, as it largely deferred to the original decision and did not reassess the core issues.

Final outcome

The court set aside both the Underlying Decision and the Review Decision, finding both to be patently unreasonable. The matter was remitted to the Residential Tenancy Branch for a new hearing before a different decision-maker. No costs or damages were explicitly awarded.