Executive Summary: Key Legal and Evidentiary Issues

• Erin Booth's application for a stay of execution of a vacant possession order was dismissed by the Court of Appeal for British Columbia, as the balance of convenience did not favour granting a stay and doing so would not be in the interests of justice.

• The Residential Tenancy Branch arbitrator determined the property was not a "rental unit" as defined by the Residential Tenancy Act, concluding the matter did not come within the RTB's jurisdiction — a finding upheld on appeal.

• No serious question for appeal was established, as Ms. Booth failed to substantiate her procedural fairness arguments with sufficient materials or evidence demonstrating any error in law, principle, or fact.

• Claims of irreparable harm — including loss of her family home, permanent displacement, emotional and psychological harm, and disruption to schooling, healthcare, and family stability — were unsupported by any evidence beyond Ms. Booth's own statements.

• Habitat for Humanity Victoria argued it legally and beneficially owned the property and submitted that it had a family in need waiting to take possession.

• Approximately 30 days had passed since the earlier stay was lifted, during which Ms. Booth had the opportunity to prepare for vacating but provided no evidence of efforts to secure alternative accommodation.

Background and facts of the case
Habitat for Humanity Victoria ("Habitat") gave Erin Elizabeth Booth occupancy of a property in Saanichton, British Columbia (the "Property"), as part of its Homeownership Program (the "Program"), which is designed to provide housing at below-market cost to eligible working families. Ms. Booth could not maintain eligibility for the Program. After Ms. Booth refused to vacate upon request, Habitat issued a notice to vacate. Ms. Booth took the position that her occupancy was a tenancy within the meaning of the Residential Tenancy Act, S.B.C. 2002, c. 78 ("RTA"), and applied to the Residential Tenancy Branch ("RTB") seeking a decision that the RTB had jurisdiction over what she asserted was her tenancy. The RTB arbitrator found the Property was not a "rental unit" as defined by the RTA and concluded the matter did not come within the RTB's jurisdiction.

Judicial review and the first appeal
Upon judicial review, the reviewing judge found the arbitrator's decision was patently unreasonable and issued a stay of petition proceedings commenced by Habitat to obtain vacant possession. Habitat appealed this decision. In reasons indexed as Habitat for Humanity v. Booth, 2026 BCCA 8, released January 12, 2026, the Court of Appeal allowed Habitat's appeal and lifted the stay, confirming the decision of the RTB arbitrator that Ms. Booth was not a tenant of the Property.

The petition for vacant possession
On January 28, 2026, Justice Jackson heard Habitat's petition to obtain vacant possession. The only issue before the judge was not if, but when Ms. Booth and her family would be required to vacate the Property. Ms. Booth sought to vacate in June 2026, after her children finished school. The judge was not satisfied that Ms. Booth had made efforts to secure alternative accommodation or had demonstrated hardship in doing so on short notice. The judge considered that the Property should be made available as soon as possible for charitable purposes. The judge ordered that Ms. Booth immediately deliver vacant possession to Habitat of the Property, on or before 12:00 P.M. on January 30, 2026, or on another later date as agreed to by the parties. On January 30, 2026, Habitat agreed not to enforce the order prior to February 6, 2026.

The stay application before the Court of Appeal
On February 4, 2026, Ms. Booth filed her notice of appeal and an urgent application to stay Justice Jackson's order. Registrar Outerbridge heard Ms. Booth's urgent application on February 5, 2026, and ordered a stay until her application could be properly heard in regular chambers. The matter then came before Justice Mayer of the Court of Appeal on February 12, 2026. The Court applied the well-established three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, which requires the applicant to show: (a) that there is some merit to the appeal in the sense that there is a serious question to be determined; (b) that irreparable harm would be occasioned to the applicant if the stay was refused; and (c) that, on balance, the inconvenience to the applicant if the stay was refused would be greater than the inconvenience to the respondent if the stay was granted. The ultimate consideration in deciding whether to grant a stay was identified as the interests of justice, per Coburn v. Nagra, 2001 BCCA 607.

Analysis of the serious question threshold
Ms. Booth argued her appeal raised serious and arguable issues of procedural fairness and natural justice, setting out three grounds: that she was unrepresented at the hearing despite demonstrating diligent efforts to obtain legal counsel; that she was denied the opportunity to present relevant evidence, including critical facts arising in 2024; and that the order appeared to rely on arguments or considerations that were not advanced at the hearing. Justice Mayer was not satisfied that there was a serious question to be addressed. There was no evidence before the Court regarding efforts made by Ms. Booth to obtain counsel, and the Court was not satisfied that this would have made a difference. The judge had dismissed her application for an adjournment, and Ms. Booth provided insufficient materials or evidence demonstrating any error in law, principle, or fact in the judge's determination. With respect to the exclusion of evidence, it appeared that Ms. Booth took issue with the judge not affording her an opportunity to present evidence when the judge was in the process of pronouncing reasons. Understandably, the judge was not inclined to reopen argument at that stage. Ms. Booth had also not explained what evidence she would have provided, nor why evidence from 2024 — well before the January 2026 appellate decision confirming she was not a tenant — was relevant. As for the allegation that the judge relied on arguments not advanced at the hearing, Ms. Booth had not indicated what those arguments were.

Assessment of irreparable harm and balance of convenience
Ms. Booth submitted that without a stay, she and her family would be evicted immediately, resulting in immediate and irreparable harm, including loss of her family home, permanent displacement, significant emotional and psychological harm, and disruption to schooling, healthcare, and family stability. She also submitted that this harm could not be later remedied by damages or other forms of legal relief, but did not explain why that was the case. The Court noted that, other than making those statements, Ms. Booth had not provided evidence to substantiate those points. Habitat argued there was no irreparable harm because Ms. Booth was already functionally moved out, as evidenced by public posts online. Ms. Booth submitted to the Court orally that she had started to take steps to remove some of her possessions in anticipation of a potential move out. The Court was not satisfied that irreparable harm had been demonstrated. On the balance of convenience, the Court observed that approximately 30 days had passed since the earlier stay was lifted, during which Ms. Booth had the opportunity to start preparing for the possibility that Habitat would be successful in obtaining an order for vacant possession. Habitat argued there was no evidence that Ms. Booth had taken any steps to obtain alternative accommodation, and the Court agreed. Habitat also submitted that it had a family in need waiting to take possession of the Property.

Ruling and outcome
Justice Mayer concluded that the balance of convenience did not favour the granting of a stay, and that in consideration of all the factors and the circumstances, it was not in the interests of justice to grant a stay. Ms. Booth's application was accordingly dismissed. As the successful party, Habitat for Humanity Victoria was entitled to its costs of the application. No exact amount of costs was specified in the decision.