Executive Summary: Key Legal and Evidentiary Issues

• Justice Weatherill considered whether the Supreme Court of British Columbia or the Residential Tenancy Branch had jurisdiction over a dispute concerning occupancy of a Mission, B.C. property.
   
• Morningside Projects Ltd. sought an interlocutory injunction and writ of possession against Christopher Ross, who had resided on the property since 2017.
   
• Ross argued that his continued occupation, coupled with his payment of utilities, gave rise to a presumption of tenancy under the Residential Tenancy Act.
   
• Recent Court of Appeal authority established that the Director of the Residential Tenancy Branch holds exclusive jurisdiction to determine tenancy status unless it is plain and obvious that no tenancy exists.
   
• Evidence including a Governing Agreement and a Business Plan created genuine ambiguity as to whether Ross occupied the property under a licence or a tenancy arrangement.
   
• The court declined to resolve a procedural objection raised by the plaintiffs regarding Rules 9-5 and 9-6, finding no additional steps were required of Ross.
   

Facts of the case

Morningside Projects Ltd. ("Morningside"), a wholly-owned subsidiary of Stave Lake Developments Ltd. ("SLDL"), applied for an interlocutory injunction granting it vacant possession, along with a writ of possession, of a 1.6-acre property at 7743 Stave Lake Street, Mission, B.C., which included a six-bedroom house and outbuildings. Christopher Ross had entered into a contract of purchase and sale for the property in March 2017 with the intention of redeveloping it through investor-backed entities. Ross incorporated Morningside and later became a shareholder and director of SLDL alongside a group of original investors, including his wife Margaryta Puyda and investor Peter Herzig. Morningside purchased the property in July 2017, purportedly holding it as bare trustee for SLDL. Ross resided on the property with his family from the time of purchase onward. As redevelopment stalled due to rezoning delays and financing difficulties, new investors Balwinder Singh Thind and Hudsons Horse Transportation Inc. ("HHTI") bought out the existing mortgage and most of the SLDL shares in 2022, eventually becoming the controlling shareholders and directors. Ross ceased providing services to the companies and resigned as director effective January 2024, though he and his family continued occupying the property without paying rent, covering only the utilities. When the companies needed to obtain a demolition permit requiring the property to be vacant, Morningside served Ross with a notice to vacate in November 2025. Ross refused to leave and, on the morning the injunction application was to be heard, applied under the Residential Tenancy Act ("RTA") for the Residential Tenancy Branch ("RTB") to determine whether he had a continuing right of occupation.

Policy and legislative provisions at issue

The central legislative provision was section 58 of the RTA, which the court noted provides that, except in limited circumstances, a court does not have and must not exercise jurisdiction over a matter that must be submitted to the Director of the RTB. Ross relied on section 58(4) to seek referral of the occupancy question to the Director. The parties also pointed to a 2017 "Morningside Projects Ltd. – Governing Agreement," which provided that Ross would receive a monthly consulting fee "throughout the term of Phase I, plus free use and control over the house (both residences) and all outbuildings," though the agreement did not define "Phase I." A related "Business Plan" document suggested Phase I was intended to last approximately three years, covering the period from acquisition through obtaining zoning and construction permits. The court also considered a body of appellate and trial-level authority interpreting the scope of the RTB's exclusive jurisdiction, including Jestadt v. Performing Arts Lodge Vancouver, Charbonneau Estate v. Charbonneau, Choi v. Westbank Projects Corp., and Knight v. Sunshine Coast Campground Group Ltd., as well as the competing line of reasoning in Willow Beach Developments Ltd. v. Silverstone and Landmark Shawn Oaks Development Ltd. v. Fallis.

Reasoning and analysis

Justice Weatherill held that the RTA is remedial legislation to be interpreted broadly in favour of tenant protection, and that more recent Court of Appeal decisions had decisively concluded that the Director of the RTB has exclusive jurisdiction to determine whether a tenancy exists, unless it is "plain and obvious" on the facts that no tenancy or landlord-tenant relationship could exist. Applying that test, the court found it was arguable that an agreement existed between Ross and Morningside regarding his occupation, noting that Ross had signed the Governing Agreement more than once and that the document's grant of "free use and control" of the property during the undefined "Phase I" created genuine ambiguity. The court also observed that it was arguable the arrangement amounted, at most, to a licence rather than a tenancy, since the parties may not have intended to create an interest in land. Because this ambiguity meant the plain and obvious threshold was not met, Justice Weatherill concluded that the question of whether a tenancy agreement existed should first be considered by the RTB. On the procedural issue raised by the plaintiffs, the court found Ross was not required to take any additional steps under Rule 9-5 or Rule 9-6 before bringing his application for referral.

Ruling and overall outcome

Justice Weatherill ordered that the Director of the RTB hear and determine the dispute between the parties as to whether a tenancy relationship exists between Morningside and Ross. The judgment specified that if the Director finds a tenancy exists, the matter falls within the RTB's exclusive jurisdiction; if not, Ross must provide vacant possession of the property immediately. No monetary damages or costs were awarded at this stage: the parties did not address costs, and the court directed that costs be in the cause, with the payee to be determined once the underlying occupancy question is resolved.