Executive Summary: Key Legal and Evidentiary Issues

• Classification of Mr. Stephen Banni’s Oak Street accommodation as “transitional housing” under s. 4(f) of the Residential Tenancy Act and the resulting exclusion from the RTA and RTB jurisdiction

• Scope of viable civil claims against Coast Foundation Society (1974) acting as Coast Mental Health under the November 17, 2022 Program Agreement, limited to breach of contract and mental injury claims

• Complete absence of a contractual relationship or private law duty of care between British Columbia Housing Management Commission and Mr. Banni, leading to dismissal of all claims against BC Housing

• Striking out of defamation, breach of public trust, contempt, negligent breach of contract, and related causes of action against Coast as not properly founded in law or fact on the pleadings

• Constitutional challenges under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms to the transitional housing exclusion being struck as moot after Mr. Banni moved to new housing

• Application of Rules 9-5 and 9-6 to confine the action to properly pleaded, triable claims against Coast while dismissing the claims against BC Housing and the constitutional issues

Facts and housing arrangement
Mr. Stephen Banni is described as a person who is at risk of homelessness. Before coming to the Oak Street housing, he lived in a shelter with a three-month limit, says he contracted pneumonia there and almost died, and says he was living on the street before being taken in by Coast Mental Health. Coast Foundation Society (1974), acting as Coast Mental Health, managed 21 units in a building on Oak Street in Vancouver under a Rapid Response to Homelessness Operator Agreement with British Columbia Housing Management Commission. The units were designated for persons experiencing homelessness or at risk of homelessness, and Coast was required to set rent at the income assistance shelter rate of $375 per month. On November 17, 2022, Mr. Banni entered into a Program Agreement for the “Easter Seals Transitional Housing” program. The agreement stated that as a tenant he would have housing and services provided by Coast staff, that staff must protect tenants’ quiet enjoyment, security, safety and physical wellbeing, and that tenants had rights including reasonable enjoyment of the unit, freedom from harassment, respectful communication about housing concerns, and a right to file a complaint with the Program Manager or Director of Community Services. It also stated that tenants recognize the housing is a transitional program and not permanent, and set out conditions under which Coast could end the agreement, including health and safety issues and, in some circumstances, with fewer than three warning letters or immediately if there was deemed sufficient safety risk.

RTB proceedings, eviction attempt, and parallel court action
In December 2022 and January 2023, a dispute arose over the use of a common area. A warning letter dated January 24, 2023 asserted that on December 25–27, 2022 and January 3, 2023 Mr. Banni verbally harassed and intimidated staff and followed a staff member outside the work location; it warned that his behaviour jeopardized his housing. In a January 26, 2023 letter, he described the accusations as a “false and malicious attack” on his character and criticized the grievance process. Coast later closed the common area, at least for some time. Mr. Banni applied to the Residential Tenancy Branch (RTB), challenging the closing of the common area and the prohibition on guests, and proposed that tenants be allowed guests on 24 hours’ notice. Coast argued the RTB lacked jurisdiction because the accommodation was “transitional housing” excluded by s. 4(f) of the Residential Tenancy Act and the Residential Tenancy Regulation. After an adjourned hearing and written submissions, the RTB arbitrator issued a June 30, 2023 decision concluding that the housing was transitional housing and that the RTB had no jurisdiction; a reconsideration application was dismissed on August 1, 2023. While the RTB process was underway, Coast issued a May 29, 2023 formal notice ending the Program Agreement, citing continued harassment of staff after the January warning, an unauthorized guest on March 20, 2023, and verbally abusive conduct on April 12, 2023 regarding a lost-keys fee, and stating his final day in the program would be June 13, 2023. On June 14, 2023, he commenced Action S234322 by Notice of Civil Claim against Coast seeking to stop the eviction, relying on the RTB interim order and the RTA. A series of court orders from June to August 2023 restrained Coast from evicting him, tied to the RTB decisions and subsequent judicial review steps. In a separate petition proceeding, the court later set aside the June 30, 2023 RTB decision and remitted the dispute to the RTB, finding the arbitrator had not explained why she rejected his evidence that programs intended to help tenants live independently were not in fact provided.

Lease expiry, second RTB ruling, and new pleadings
BC Housing held a Head Lease with Easter Seal House Society for the 21 units used by Coast. The initial term to July 31, 2022 was extended twice, most recently to July 31, 2024. In January 2024, BC Housing notified Easter Seals that it would not extend the Head Lease beyond July 31, 2024, which meant the Operator Agreement with Coast would also end. On January 23, 2024, BC Housing and Coast issued a Tenant Update stating that the lease for Easter Seals House would end on July 31, 2024, that the building had opened as temporary housing during the COVID-19 pandemic, and that over the next few months BC Housing and Coast would work with each tenant to find a new home, with Coast staff helping with interviews, packing, and moving. The court later refused an injunction to prevent the lease expiry, declined to add Easter Seals as a party, but added BC Housing as a defendant. Contempt applications against Coast and BC Housing for allegedly breaching the injunction by allowing the lease to end were struck, and the court directed Mr. Banni to file an amended notice of civil claim. Following the earlier judicial review, a new RTB telephone hearing was held on August 1, 2024, and on August 9, 2024 a different arbitrator again decided that his former housing with Coast was transitional housing, so the RTB had no jurisdiction. On August 2, 2024, Mr. Banni had moved to new permanent housing. On September 12, 2024, he filed Petition S246330 for judicial review of the August 9, 2024 RTB decision, and on November 20, 2024 he filed an Amended Notice of Civil Claim. On January 31, 2025, he filed an Amended Notice of Constitutional Question attaching the Amended Notice of Civil Claim, the amended petition, and an explanatory affidavit.

Outcome of the applications and remaining claims
In the Amended Notice of Civil Claim, Mr. Banni alleged that Coast provided his housing funded by BC Housing, that he was harassed by a Coast staff member, that Coast ran a “distortion campaign” and insisted it could terminate his housing at any time, and that Coast breached the Program Agreement by failing to provide quiet enjoyment and by attempting to terminate without reasonable grounds, without due process and not in good faith. He alleged that Coast falsely claimed to provide programs and services and meal services, interfered with the process of law in the RTB and court proceedings, was negligent in a duty of care to taxpayers, was in contempt of injunctions, and defamed his character. He further alleged that Coast and BC Housing breached the trust of public funds and that BC Housing failed in its Operator Agreement obligations to monitor Coast’s supportive services and provide standards and expectations. Constitutional claims under ss. 7 and 15 of the Charter challenged the exclusion of transitional housing from the RTA, and he alleged that the most recent RTB decision was patently unreasonable. Coast applied under Rules 9-5 and 9-6 to strike or dismiss the claims, and BC Housing applied under the same rules to have the claims against it dismissed or struck. The court found there was no contractual nexus between BC Housing and Mr. Banni, that he was not a party to the Operator Agreement, that any failure by BC Housing to monitor Coast’s performance did not give him private rights, that he lacked standing to bring claims on behalf of taxpayers, and that no duty of care arose merely from BC Housing’s awareness of his situation; all claims against BC Housing were dismissed under Rule 9-6(4). As to Coast, the court held that the defamation claims failed because the allegedly defamatory statements were made in court and RTB proceedings, which attract absolute privilege, and his letters were not alleged to have been published. Claims for breach of public trust, breach of statutory duty, contempt as a cause of action, negligent breach of contract, and taxpayer-based claims were also struck as not supportable or not recognized. However, the court accepted that there was an arguable claim for breach of the Program Agreement, and that there could be arguable claims in negligent infliction of mental injury and intentional infliction of emotional distress, given the nature of the housing contract and the allegations about Coast’s conduct. Because the Amended Notice of Civil Claim was prolix and confusing, the court struck it but granted leave to file a further amended notice of civil claim limited to three causes of action against Coast: breach of the Program Agreement, negligent infliction of mental injury, and intentional infliction of emotional distress. All other claims against Coast were struck without leave to amend, and Coast’s summary judgment application on the remaining claims was dismissed because there were genuine issues of fact.

Constitutional mootness and costs
On the constitutional issues, the court noted that Mr. Banni challenged the transitional housing exclusion in s. 4(f) of the Residential Tenancy Act as contrary to ss. 7 and 15 of the Charter, arguing that it deprived him of security of the person and equal benefit of the law by denying him RTB protections and an independent hearing. The court reviewed the ss. 7 and 15 tests and emphasized that s. 7 requires a deprivation of life, liberty or security of the person with a sufficient causal connection to the impugned law, and that s. 15 requires a distinction based on enumerated or analogous grounds that is discriminatory. It held that the constitutional pleadings were prolix and confusing and did not clearly set out the necessary elements, and that the underlying dispute about his tenancy at the Oak Street building was now moot because he had moved to new housing, Coast no longer operated the building, and only damages claims remained. Applying the Borowski mootness framework and related authorities, the court declined to exercise its discretion to decide the moot constitutional issues, and struck the Amended Notice of Constitutional Question and the constitutional portions of the Amended Notice of Civil Claim and the amended petition without leave to amend. Overall, the court dismissed all claims against BC Housing under Rule 9-6(4), refused summary judgment to Coast on the remaining causes of action, adjourned Mr. Banni’s summary trial applications generally, and ordered that BC Housing have its costs fixed at $500, made no order as to costs with respect to the Province, and directed that Coast and Mr. Banni bear their own costs as between them.