Executive Summary: Key Legal and Evidentiary Issues

• Judicial review addressed whether the petitioner had exhausted internal remedies before seeking court intervention.

• The tenancy agreement’s material term concerning household composition and notification of changes was central to the dispute.

• Landlord relied on occupancy standards and subsidized housing policies to determine continued eligibility for tenancy.

• Petitioner’s absence from the April 17, 2025 RTB hearing due to mental health issues raised procedural fairness considerations.

• The arbitrator proceeded in the petitioner’s absence and upheld the notice to end tenancy.

• The court stayed the order of possession for three weeks to allow the petitioner to apply for reconsideration with the RTB.

Facts of the case

Natalie Kellner is the tenant of a subsidized two-bedroom apartment in Surrey managed by Entre Nous Femmes Housing Society. She moved into the unit in 2009 and has lived there for almost 16 years. The tenancy agreement, signed on November 1, 2009, included a provision that the landlord selected the tenant based in part on the number of residents, and only those named at the beginning of the tenancy could reside in the unit unless the landlord consented in writing. The tenant was required to notify the landlord promptly of any change in residents, making the number of residents a material term of the agreement. The agreement allowed the landlord to end the tenancy if the tenant failed to report a change in the number of residents, if the number of residents was unreasonable, or if the family makeup violated the landlord’s operating agreement with the federal or provincial government.

The landlord stated that, around 2017, they became aware that neither of the petitioner’s children was occupying the unit. On April 23, 2018, the landlord sent a letter to Ms. Kellner confirming a change in occupancy and advising her that she was over-housed under the Canada Mortgage and Housing Corporation National Occupancy Standard. She was informed that she needed to apply for a transfer through the B.C. Housing Registry and, within six months from October 31, 2018, either find alternative housing or provide proof that she was actively working towards having her children returned to her care 51 percent of the time. The landlord stated that confirmation was not provided that either child was living with Ms. Kellner for more than 51 percent of parenting time. As of 2020, the petitioner informed the landlord that her daughter was the only child occupying the unit.

On January 10, 2025, the Ministry of Children and Family Development removed the petitioner’s daughter from her care, and there were criminal charges in relation to that incident. A condition was imposed that the petitioner was not to have any contact with her daughter, and therefore the daughter was not living in the unit. On January 28, 2025, the landlord served Ms. Kellner with a two-month notice to end tenancy because she no longer qualified for a subsidized rental, as her children were not living in the two-bedroom unit. The petitioner filed a notice of dispute with the Residential Tenancy Branch (RTB) on February 11, 2025.

Two hearings were held before the RTB. The first hearing took place on March 17, 2025, with both parties attending via teleconference and the petitioner assisted by an advocate. The petitioner requested more time to provide evidence, particularly regarding whether her son was occupying the unit. The arbitrator adjourned the hearing to April 17, 2025, and set deadlines for evidence submission. The petitioner did not attend the second hearing, later explaining to the court that her mental health condition prevented her attendance. She provided a letter from a psychiatrist after the hearing, but this letter was not before the arbitrator. The arbitrator exercised discretion to proceed in her absence and upheld the notice to end the tenancy.

Judicial review application and policy terms

Ms. Kellner applied to the RTB for a correction after the April 17, 2025 hearing, but her application was dismissed because it was based on arguments that the decision was incorrect or that she disagreed with the decision. The application was made under section 78 of the Residential Tenancy Act, not section 79, which allows a party to apply for reconsideration if unable to attend a hearing for reasons beyond their control. The court noted that, generally, a party must exhaust internal remedies within the tribunal before seeking judicial review.

Court’s ruling and outcome

Justice Hoffman found that the judicial review was premature because Ms. Kellner had not applied for a reconsideration under section 79 of the Residential Tenancy Act. The court directed that Ms. Kellner be given a reasonable amount of time—suggested as three weeks—to make this application. The order of possession was stayed for this period to allow for the reconsideration application. If the reconsideration is not applied for within the set time, either party may contact the court to request a decision on the merits of the judicial review application. The court did not rule on the substance of the judicial review, and no costs or monetary amounts were awarded, as the matter remains unresolved pending the outcome of the reconsideration process.