Executive Summary: Key Legal and Evidentiary Issues

• This case concerns an application for a stay of eviction pending appeal in a protracted landlord-tenant dispute.
   
• Appellants sought to overturn an order of Justice Hewson that cancelled a previously granted stay of proceedings.
   
• Justice Iyer applied the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General) to assess whether a stay should be granted.
   
• Little merit was found in both the appeal itself and the underlying judicial review petitions.
   
• Evidence of irreparable harm to the appellants was found to be insufficient to justify a stay.
   
• The balance of convenience favoured the respondent landlords, largely due to delays attributable to the appellants' own conduct.
   

Facts of the case

Joshua Percival and Cassandra Fisher are tenants of a West Kelowna residence owned by Ti Developments Ltd. and Ian Harris. The tenancy began in October 2023 at a monthly rent of $4,500. In spring 2025, the respondents served a 10-day notice to end the tenancy for nonpayment of rent under section 46 of the Residential Tenancy Act. The appellants disputed the notice before the Residential Tenancy Branch ("RTB"). On May 27, 2025, an arbitrator cancelled the notice because it erroneously stated the unpaid rent as $4,770 when the actual amount owing was $4,500 (the "First RTB Order"). The respondents' application for review of that decision was denied on May 30, 2025 (the "First Review Decision"). On June 23, 2025, the respondents issued a new 10-day notice reflecting $4,300 outstanding. The appellants again disputed it, but on July 29, 2025, an arbitrator found the amount owing, granting an order of possession within seven days along with a monetary order of $4,400, comprising the outstanding rent and a $100 filing fee (the "Second RTB Order"). The appellants were evicted on August 14, 2025, and temporarily resided in an Airbnb. They filed a petition for judicial review of the Second RTB Order shortly after — the judgment refers to this filing date inconsistently as both August 18 (para. 9) and August 8 (para. 12), a discrepancy in the source that cannot be resolved from the record — obtaining a 30-day stay from Justice Hori on a without-notice basis, and moved back into the property around August 22. Their subsequent application for review of the Second RTB Order was denied on August 29, 2025 (the "Second Review Decision"). On October 9, 2025, the appellants filed a second petition for judicial review, seeking to quash the Second RTB Order on grounds of res judicata and the Second Review Decision on grounds of procedural unfairness, bias, and lack of jurisdiction.

From the filing of the first petition onward, the appellants brought numerous without-notice and short-notice applications, primarily concerning stays of the writ of possession. Key procedural steps included: a stay extension to October 15, 2025, granted by Justice Hardwick on September 15 (conditional on payment of September rent, with a further order barring additional without-notice applications); a reserved judgment on the first petition following an October 6 hearing before Justice Hewson, who on October 15 required proof of service on the RTB and Attorney General and extended the stay accordingly; a further stay granted by Justice Wilson on October 14 in the second petition proceeding; and an October 22 application to extend the Wilson stay, alongside service of an amended second petition set for hearing on January 5, 2026. On October 27, 2025, Justice Maisonville denied the appellants' October 22 application, refused to extend the stay, and ordered costs to the respondents in any event of the cause — an order the appellants have not signed and dispute. A November 21, 2025 application to strike certain affidavits was adjourned and has not been heard. On November 24, 2025, Justice Hewson issued his decision on the first petition (2025 BCSC 2299), finding that without proof of service on the Attorney General and RTB, the court could not proceed; he set aside the stay, noting it is an equitable remedy "not meant to give the petitioners the benefit of an indefinite delay." Following a December 17, 2025 judicial management conference, Justice Hewson ordered the appellants to post $2,000 in security for costs by January 9, 2026, granted a stay to January 30, 2026, and barred further applications without his leave. The appellants retained counsel and posted the security. On February 24, 2026, the appellants filed a notice of application seeking to amend the petition without first obtaining Justice Hewson's leave. On March 12, 2026, Justice Hewson heard the respondents' application for directions and cancelled the outstanding stay effective midnight on March 31, 2026 — the order now under appeal. The appellants filed their notice of appeal on March 27, 2026, together with an urgent stay application, which proceeded through Registrar Outerbridge and Justice Francis before reaching Justice Iyer for the hearing addressed in this decision.

Policy and legislative provisions at issue

The underlying eviction notices were issued under section 46 of the Residential Tenancy Act, S.B.C. 2022, c. 78, which governs 10-day notices to end tenancy for unpaid rent. The application for a stay pending appeal was assessed against the three-part test established in RJR-MacDonald Inc. v. Canada (Attorney General), requiring the applicant to show that the appeal has some merit, that irreparable harm would result if the stay were refused, and that the balance of convenience favours granting the stay. The appellants also invoked the doctrine of res judicata in arguing that the Second RTB Order improperly re-litigated matters decided in the First RTB Order.

Reasoning and analysis

Justice Iyer addressed each branch of the RJR-MacDonald test. On merit, the appellants argued Justice Hewson erred by disturbing the status quo before the judicial review was heard on its merits; the Court rejected this, noting that accepting the argument would mean a stay could never be vacated before final disposition of a case. Their further claim that Justice Hewson had an incomplete record was unsupported by evidence — it appeared instead that the appellants sought to file additional evidence after his decision and were refused. Given the discretionary nature of stay decisions and Justice Hewson's role as case management judge with considerable familiarity with the file, a highly deferential standard of review applied, and the appeal was found to be very weak. On the underlying judicial review, the Court held that the Second RTB Order was not bound by the First RTB Order, since the First Order addressed only errors in the notice itself rather than the substantive question of arrears, and the two orders concerned different notices for different time periods — meaning res judicata could not apply. The underlying judicial review was accordingly also found to be very weak. On irreparable harm, the appellants pointed to potential harm to themselves, their children, sub-tenants, and their business activities, but provided no evidence from the sub-tenants and no evidence explaining how a move would harm their businesses. While the Court accepted there might be some harm to the children and sub-tenants that could not be readily compensated, it was not satisfied the appellants themselves would suffer irreparable harm, and noted that even a risk of mootness to the judicial review did not outweigh the need to satisfy all three prongs of the test where the underlying merits were so weak. On the balance of convenience, the Court found that much of the delay in bringing the second petition to a hearing on its merits was attributable to the appellants' own conduct, including repeated applications and disregard of court orders, a two-week delay in filing the appeal itself, and no steps taken to set the petition down for hearing since March 12. The Court also noted unresolved conflict between the parties, including allegations concerning a repossessed gas line at the property, reflecting a fraught ongoing relationship. On balance, this factor strongly favoured the respondents.

Ruling and overall outcome

Having found the appeal weak, the underlying judicial review weak, irreparable harm unproven, and the balance of convenience favouring the landlords, Justice Iyer dismissed the appellants' application for a stay of Justice Hewson's order cancelling the earlier stay. The respondents, Ti Developments Ltd. and Ian Harris, were the successful parties on this application. No monetary award, costs, or damages were ordered in this particular decision; the ruling was confined to the dismissal of the stay application itself.