Executive Summary: Key Legal and Evidentiary Issues

• Landlord failed to attend two RTB hearings without providing adequate explanation for either absence

• Medical note submitted lacked credibility markers such as letterhead details and physician credentials, and only stated attendance was "medically inadvisable" rather than impossible

• Documentary evidence (sales contract, realtor letter, e-transfer receipts) was insufficient to prove actual occupancy of the rental unit for the required six-month period

• Photos submitted during review were not considered "new evidence" as they existed 10 months prior to the hearing and could have been submitted earlier

• Tenant's testimony regarding his observations of an unoccupied unit contradicted the landlord's claims of residency

• Court applied the highly deferential "patently unreasonable" standard of review and found the arbitrator's decisions were supported by evidence

Background of the tenancy dispute

Bahador Mohajerrey began renting a lower-level unit at 602 St. Andrews Road in West Vancouver from Davood Nekoi-Panah on August 1, 2022, initially paying $3,100 per month, which increased to $3,208 a month at the end of the tenancy. On March 8, 2024, the landlord served the tenant with a two-month notice to end tenancy for landlord's use, with a move-out date of May 7, 2024. The tenant asked if he could stay until the end of June so his children could complete their school year, but the landlord refused that request. The tenant found a new place and advised the landlord on March 17 that he would move out by March 31, 2024. The tenant vacated the residence by March 31, 2024.

The tenant's dispute resolution application

The tenant filed for dispute resolution pursuant to sections 49 and 51 of the Residential Tenancy Act, S.B.C. 2002, c. 78, arguing the landlord did not accomplish the stated purpose of the notice to end tenancy—i.e., the landlord did not occupy the rental unit for six months as required pursuant to the legislation at that time.

RTB hearing proceedings and the landlord's non-attendance

A hearing was scheduled for January 24, 2025, as a conference call at 11:00 a.m. The tenant attended with an interpreter; no one attended on behalf of the landlord. At the outset, the tenant requested an adjournment as he had made last-minute travel plans out of the country due to a death in his family. The arbitrator granted the adjournment by a decision dated January 28, 2025 (the "Interim Decision"), and the matter was reset for February 18, 2025 at 1:00 p.m. At the rescheduled hearing, the tenant and his interpreter called in at 1:00 p.m. The arbitrator waited until 1:35 p.m. but no one attended for the landlord. Due to the landlord not attending the prior hearing, the Interim Decision had been sent by the RTB directly to the landlord together with the notice of dispute resolution with the call-in details for the rescheduled hearing.

Evidence presented at the merits hearing

At the hearing, the tenant provided oral evidence. The tenant testified that he started renting from the landlord in August 2022. The tenant provided evidence that the landlord's realtor had been arranging viewings of the rental unit while the tenant was still residing there. By the time he moved out at the end of March 2024, the tenant saw a "sold" sign on the lawn of the property. The tenant provided evidence that he returned to the rental unit at the end of April 2024 and saw no one occupying the rental unit. The tenant spoke with the woman renting the upper floor and was told she did not know the landlord. The landlord had submitted evidence prior to the hearing, including a contract for purchase and sale of the property dated March 20, 2024, with a completion date of April 29, 2024. There was an addendum dated April 5, 2024, which reduced the purchase price by $10,000 and provided that the landlord would rent the rental unit from May 1 to September 30, 2024 for $3,500 a month. The landlord provided a letter from his realtor dated December 28, 2024, which stated the landlord had rented the rental unit back from the new purchaser from May 1 to September 30, 2024 for $3,500 a month. The landlord also submitted e-transfer receipts showing five payments of $3,500 a month by the landlord to the purchaser from May to September 2024.

The arbitrator's merits decision

The arbitrator found the evidence submitted by the landlord was not sufficient to establish that the landlord occupied the rental unit from May 1 to September 30, 2024, as stated in the addendum of the sales agreement for the property. In any event, the arbitrator found even if the landlord had moved into the rental unit from May 1 to September 30, that was not six months as required pursuant to the RTA. The arbitrator on March 5, 2025 issued a monetary order of $38,596, consisting of 12 months' rent ($38,496) and the filing fee ($100).

The landlord's review application and its rejection

On March 6, 2025, the landlord applied for a review consideration pursuant to s. 79 of the RTA, on the grounds that he was unable to attend the hearing due to circumstances that could not have been anticipated and were beyond his control; that there was new and relevant evidence not available at the time of the hearing that materially affected the decision; and that the arbitrator did not determine an issue required to be determined. The landlord wrote on his application: "I was out of country and I had medical emergency So, I couldn't attend the hearing on February 18/2025". The landlord submitted a doctor's note on the letterhead "one medical" which confirmed the landlord had been under medical care for "ongoing health issues" and that "his health concerns required continued monitoring and rest, which made it medically inadvisable for him to participate in any legal proceedings on that date". The landlord also submitted four photos taken on April 6, 2024, showing a vehicle in a garage and the interior of the rental unit. The arbitrator noted the landlord had also not attended the January 24, 2025 hearing and provided no explanation for this. The arbitrator found the doctor's note not persuasive as there was no address or phone number in the letterhead, nor was the signatory identified as a medical doctor. The arbitrator found the medical note not sufficient to prove the landlord had a medical emergency which could not have been anticipated, and that the note did not prove the landlord was prevented from attending the hearing, as the note only referenced that it was "medically inadvisable" for him to attend. The arbitrator found the landlord did not provide any reason why he did not arrange for someone else to attend the hearing on his behalf. The arbitrator found the four photos were not new evidence, as they were taken on April 6, 2024 and were available at the time of the hearing. The landlord's application for review was dismissed on March 18, 2025.

Judicial review and the court's analysis

The landlord petitioned the Supreme Court of British Columbia for judicial review, arguing he was denied procedural fairness and the reasons of the arbitrator in both the Merits Decision and the Review Decision were patently unreasonable. Justice Chan applied the patently unreasonable standard of review, which is the most deferential standard. The Court described a "patently unreasonable" decision as one that is "openly, clearly, evidently unreasonable" and where "the result must almost border on the absurd." The Court found the arbitrator's observations about the medical note were accurate. The Court found the arbitrator's finding that the landlord had not shown he was unable to attend the hearing due to circumstances that could not have been anticipated and that were beyond his control was rational and flows from the evidence. It was noted that the landlord did not present any evidence of utility bills in his name at that address, mail addressed to him at that location, deliveries being made to him at that address, or any identification documents such as a driver's licence or passport with that address. The Court also observed that after the property was sold to the new purchaser on May 1, 2024, it is arguable whether the landlord still qualified as a landlord pursuant to s. 49, as he no longer held "not less than ½ of the full reversionary interest" in the property, though this issue was not argued before the arbitrator or before the Court.

Ruling and outcome

The Court dismissed the landlord's petition for judicial review, finding that the arbitrator's findings were not patently unreasonable and were entitled to deference. The tenant, Bahador Mohajerrey, was the successful party, with the monetary order of $38,596 remaining in effect. No costs award was specified in the decision.