BC Court of Appeal orders lessee to vacate residential property used as daycare

The British Columbia Court of Appeal has directed a tenant to vacate residential premises in Vancouver, where he had been running a daycare, upon affirming a trial judge’s finding that the landlord had validly terminated the lease. 

In Osama v. Jiang, 2025 BCCA 427, the appellant lessee leased the residential property from the respondent lessor in July 2017 to operate a daycare. 

The lease agreement incorporated provisions of BC’s Residential Tenancy Act, 2002 (RTA), including those allowing the respondent to end the tenancy only for permissible reasons under the RTA and in the manner stated in the RTA. 

In late June 2024, the respondent sent the appellant a two-month notice to terminate the tenancy as of Sept. 1, 2024. 

In the notice, the respondent cited s. 49(3) of the RTA, which permitted a landlord to terminate a lease if they or a close family member intended in good faith to occupy the rental unit. The respondent claimed her son planned to occupy the premises. 

In an action, the appellant sought declarations that the notice was void and that the lease remained valid. He alleged that: 

• The respondent’s son did not intend to ‘occupy’ the residence as defined by s. 49(3), as he was a visitor to Canada and could only move in after three months of renovations 
• The respondent could only end the lease under s. 49.2 of the RTA, which directly tackled evictions for renovations 
• The desire to avoid paying the empty homes tax motivated any intent to occupy, which meant that the intent was not in good faith 

The appellant wanted to delay the eviction by 18 months so that he would not need to rush the daycare’s closure, which would substantially impact staff members, around 20 children, and their families. 

Last June 12, a trial judge of the Supreme Court of British Columbia determined that the respondent had validly terminated the lease and ordered the appellant to vacate the property within 60 days of the date of her decision. 

The judge refused to delay the eviction by 18 months. The judge noted that the appellant knew, from the time he had opened the daycare, that the respondent could end the lease under the RTA. The appellant appealed the judge’s decision. 

The court extended the eviction’s permitted delay, which had expired in August, pending the appeal hearing. The appellant asked for 90 more days of delay in vacating the property so that he could make arrangements and notify the affected staff and parents. 

Lessee to vacate

The Court of Appeal for British Columbia dismissed the appeal and ordered the appellant to vacate the premises within 60 days from the date of its decision. 

The appeal court noted that the appellant should have made arrangements earlier. However, the appeal court accepted that the situation, which would affect staff and families at the daycare, remained uncertain until his appeal’s resolution. 

The appeal court then addressed the appeal’s merits. First, the appeal court saw no errors in the trial judge’s conclusion that s. 49(3) of the RTA overrode s. 49.2 of the RTA where there was an intention to renovate a rental unit or in her interpretation of s. 49(3) as requiring occupancy within a reasonable period. 

Considering that the issue of whether occupancy would occur within a reasonable period would depend on the circumstances, the judge found the planned delay in occupancy reasonable, given the nature of the renovations and the projected completion period. The appeal court deferred to this finding, without evidence of a palpable or overriding error. 

Second, the appeal court held that the judge did not apply the wrong legal test to the requirement that the landlord or their family should intend to occupy the rental unit for at least 12 months. 

The appeal court noted that the judge clearly found that the respondent’s son wanted to primarily reside in Vancouver, given that he had work in that city, siblings who all resided there, and two children enrolled in elementary school there. The judge also saw no evidence that the son intended to live away from his children. 

Given these findings, the appeal court decided that the outcome would not have remained the same even if the judge had accepted the appellant’s framing of the test. 

Third, the appeal court ruled that the judge did not err by imposing a requirement of ‘dishonest motive’ in the interpretation of s. 49(3) of the RTA. 

Given that the agreement expressly incorporated the RTA, the appeal court held that the judge properly focused on the grounds for terminating a lease under the RTA, including the question under s. 49(3) of whether there was a good faith intention to occupy. 

The judge found a good faith intention to occupy the residence and saw “nothing dishonest in seeking to avoid paying the empty homes tax by bringing oneself into compliance with the applicable bylaw, so long as that is achieved by good faith means.” 

Without a palpable and overriding error, the appeal court found no basis to interfere with the judge’s finding of good faith, a factual finding within a trial judge’s purview and generally based on inferences drawn from the record.