Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Residential Tenancy Branch was challenged due to the absence of a tenancy agreement between the occupant and the owner or estate.

• The petitioner failed to prove the existence of a tenancy agreement or license to occupy between Damien Welsh and the owner or executrix.

• Dispute over the ownership of the unit and whether Sheena Welsh or the estate held legal title was raised but not resolved due to lack of evidence.

• The arbitrator’s statutory interpretation and findings were reviewed under the standard of patent unreasonableness.

• Allegations of procedural unfairness and false statements by Sheena Welsh were made but not substantiated with documentary evidence.

• The court ordered that each party bear their own costs, with no damages awarded.

Facts and outcome of the case

Background and factual context

The petitioner, The Owners, Strata Plan NW 1874, applied for judicial review of decisions made by the Residential Tenancy Branch concerning a dispute over a strata unit in White Rock. On May 23, 2024, the strata served a One-Month Notice to End Tenancy for Cause to Damien Welsh, alleging that he had consistently violated strata bylaws by smoking in the unit and patio area, causing serious interference with other occupants’ use and enjoyment of their units and common property. The notice was issued under section 138 of the Strata Property Act and section 47 of the Residential Tenancy Act.

Damien Welsh did not file a notice of dispute regarding the notice. The strata then applied to the Residential Tenancy Branch for a hearing for an order of possession. At the hearing, it was revealed that Damien Welsh and Sheena Welsh are siblings, and their late mother, who died in 2010, was the owner of the unit. Sheena Welsh is the sole executrix of the estate, and probate had not yet been completed. Damien Welsh continued to reside in the unit after their mother’s death. No tenancy agreement existed between Damien Welsh and the late mother or between Damien Welsh and Sheena Welsh as executrix.

The arbitrator adjourned the proceeding to allow for additional evidence but ultimately concluded in a decision dated September 6, 2024, that there was no jurisdiction to hear the application because there was no tenancy agreement or license to occupy under the Residential Tenancy Act. The arbitrator also noted that the strata had failed to prove who the owner of the unit was and that there was no evidence of a contractual agreement between Damien Welsh and the owner or agent of the unit.

The strata sought a review of this decision, arguing that the decision was obtained by fraud and that the arbitrator had no jurisdiction for the issue determined. In a decision dated September 12, 2024, the review arbitrator dismissed the application for review, finding that the strata had not demonstrated that Sheena Welsh intentionally provided false information or evidence at the hearing and that no sufficient documentary evidence had been submitted to prove ownership or contravention of the will.

Judicial review and legal issues

On judicial review, the strata argued that the Residential Tenancy Branch’s interpretation of the Residential Tenancy Act was patently unreasonable, that the review decision was patently unreasonable for not finding that Sheena Welsh made false claims, and that procedural fairness was not afforded because arguments related to implied tenancy and evidence regarding ownership were not properly considered. The court reviewed the statutory definitions of “tenant,” “landlord,” and “tenancy agreement” and found that the arbitrator’s conclusion that there was no evidence of a tenancy agreement or license to occupy was supported by the record.

The court also found that the arbitrator’s findings regarding ownership were based on the lack of documentary evidence and that the review arbitrator’s decision not to find intentional falsehoods by Sheena Welsh was justified, as the strata had not submitted a land title search or a copy of the will. The court determined that the findings were not patently unreasonable and that procedural fairness had been afforded, as the strata had the opportunity to present evidence and arguments.

Outcome and costs

The court dismissed the petition for judicial review. The decisions of the Residential Tenancy Branch were upheld. The court ordered that each party bear their own costs, and no damages were awarded.