Executive Summary: Key Legal and Evidentiary Issues

• Tod-Hackett Group Ltd. sought judicial review of a Residential Tenancy Branch arbitrator's decision that set aside its four-month notice to end tenancy issued under s. 49 of the Residential Tenancy Act.
• Central to the dispute was whether the arbitrator properly assessed the landlord's good faith intention to occupy the rental unit for residential purposes.
• The arbitrator found an "absence of evidence" of the landlord's intent to occupy, despite the landlord's testimony and written statement directly addressing that intent.
• Misapprehension of the March 19, 2025 email formed a second basis for the arbitrator's flawed conclusion that the landlord had given inconsistent reasons for ending the tenancy.
• Applying the patent unreasonableness standard, the Supreme Court of British Columbia found the arbitrator failed to meaningfully engage with evidence bearing directly on the central issue.
• Remittal to the Residential Tenancy Branch was declined given the inevitable outcome, the 14-month delay since the notice was issued, and concerns for fairness and efficient use of public resources.

Facts of the case

Tod-Hackett Group Ltd. (the "Landlord") is a British Columbia family corporation whose shares are wholly owned by Mr. Timothy Hackett and/or his close family members, with Mr. Hackett serving as sole director. The Landlord owns Long Beach Lodge Resort just south of Tofino as well as a triplex at 421 Main Street, Tofino, British Columbia. Under a residential tenancy agreement signed by Mr. Hackett on behalf of the Landlord, tenants Marianne Boom and Alwyn Cox (collectively, the "Tenants") had occupied one unit in that triplex since approximately the beginning of December 2020.

In late 2024, Mr. Hackett decided to semi-retire and planned to transition resort management responsibilities to his stepdaughter, who also had no home in Tofino. He wished to reclaim the rental unit for his own use while staying in Tofino, for his stepdaughter while she worked at the resort, and for close family members when visiting. In early 2025, Ms. Boom gave her notice of resignation from the resort. On February 3, 2025, Mr. Hackett emailed Ms. Boom to acknowledge her service and advise that he would ask the Tenants to vacate so that he and his brother could use the unit. This began an email chain between the parties — and at times, Mr. Hackett's stepdaughter — that continued until March 24, 2025, and was submitted in full by the Tenants as part of the record.

The Tenants were unwilling to vacate. On February 19, 2025, Mr. Hackett's stepdaughter offered to reimburse three months' rent if the Tenants moved out by end of May 2025. After the Tenants' response of February 21, 2025 was inconclusive, Mr. Hackett on March 19, 2025 requested a definitive answer and, in the same email, noted that the unit had "always" been viewed as staff housing — as evidenced by below-market rent — but clarified in the very next sentence that the Tenants' rental situation had "nothing to do" with the request to vacate and that the Landlord had "another use for the suite." On March 21, 2025, Mr. Hackett reiterated the four-month eviction timeline and renewed the offer of three months' rent reimbursement if the Tenants confirmed they would vacate by September 30, 2025. Ms. Boom's final email on March 24, 2025 stated the Tenants could not commit to a move-out date.

On March 27, 2025, Mr. Hackett personally delivered the Notice (dated March 26, 2025), generated through the Residential Tenancy Branch Web Portal, requiring the Tenants to vacate by July 31, 2025. The Notice stated the reason for ending the tenancy as the landlord's intention in good faith to occupy the rental unit for at least 12 months, and Mr. Hackett certified that he would occupy the unit. The Tenants filed for dispute resolution on April 25, 2025, asserting the Notice was issued in bad faith. A hearing was held before the arbitrator on May 21, 2025 by conference call, with both parties providing testimony in addition to written submissions.

Statutory framework and policy guidance at issue

Section 49 of the Residential Tenancy Act, S.B.C. 2002, c. 78 (RTA) permits a landlord — including a "family corporation" as defined in the RTA — to end a tenancy if the landlord or a close family member wishes to occupy the rental unit. The arbitrator's decision also engaged Residential Tenancy Policy Guideline 2A (Ending a Tenancy for Occupancy by Landlord, Purchaser or Close Family Member), a public guidance document issued by the Director of the Residential Tenancy Branch. Policy Guideline 2A defines "occupy" as using the rental unit as living accommodation or as part of living accommodation, and specifies that such occupation must continue for at least 12 months on a generally consecutive basis — though the occupant need not reside there every day, maintain it as a primary residence, or forgo vacations. The guideline also states that occupation must not be so infrequent or sporadic that the unit is, in essence, left vacant for a year, and that the nature of occupation must reasonably justify the tenant losing possession.

Court's reasoning and analysis

Justice K. Wolfe applied the patent unreasonableness standard of review, as required under ss. 5.1 and 84.1(2) of the RTA and s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45. The Court identified two errors rendering the arbitrator's decision patently unreasonable.

The first and most critical error was the arbitrator's reliance on an "absence of evidence" that the Landlord and his stepdaughter would occupy the unit. The Court found this conclusion to be irrational on its face: the decision itself recorded Mr. Hackett's testimony that he and his stepdaughter intended to use the unit while in Tofino, that his stepdaughter would be in Tofino at least three weeks a month, and that he would be there at least three days a month. Beyond the testimony, Mr. Hackett's written statement — which the arbitrator never referenced — expressly described his intention to use the suite for himself and his family, and explained that his stepdaughter, now company manager, was required to travel from her home in North Vancouver to Tofino at least three weeks a month, making the suite likely to be occupied almost weekly. The Court confirmed, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, that administrative decision-makers must meaningfully engage with evidence bearing directly on a central issue and must explain why contrary evidence was rejected; failure to do so renders a decision patently unreasonable.

The second error concerned the arbitrator's finding that the Landlord gave different reasons for ending the tenancy. The Court found that the arbitrator misread the March 19, 2025 email by isolating the "staff housing" comment while ignoring the very next sentence, in which Mr. Hackett explicitly stated that the Tenants' rental situation had "nothing to do" with the request to vacate and that the Landlord had "another use for the suite." The Court also noted the arbitrator failed to consider the email in context — it was part of a longer conversation responding to Ms. Boom's suggestion that the tenancy provided steady income — and that both the February 3, 2025 email and Mr. Hackett's hearing testimony were consistent with one another regarding his and his stepdaughter's intended use of the unit. This selective focus on one portion of the record, without engaging with the surrounding context, was found to constitute a material misapprehension of the evidence.

On the second issue — whether the arbitrator erred in interpreting the RTA as requiring a demonstrated intention to occupy for 12 months — the Court found it unnecessary to decide the point given the findings above, but noted that the 12-month occupation standard was reflected in the Notice itself, in Policy Guideline 2A, and in prior decisions of the Court; accordingly, the Court indicated it would not have found this aspect of the decision patently unreasonable.

Ruling and outcome

The Court granted the petition for judicial review, quashing the June 5, 2025 arbitrator's decision — including the order that the Tenants recover their $100 filing fee — and substituting a decision upholding the Landlord's notice to end tenancy. Rather than remitting the matter to the Residential Tenancy Branch, the Court exercised its discretion to order the Tenants to vacate Unit #2, 412 Main Street, Tofino, BC within 60 days of the date of judgment, noting that more than 14 months had passed since the Notice was issued and more than nine months had elapsed past the date the Tenants were originally required to vacate. The Landlord, Tod-Hackett Group Ltd., was the successful party and was awarded costs at Scale B against the Tenants; no costs order was made for or against the Director of the Residential Tenancy Branch. No exact monetary quantum of costs was specified in the judgment.