On May 31st, 2023, Pivot Legal Society and Our Homes Can’t Wait were granted leave to co-intervene in the case of McNeil v. Elizabeth Fry Society of Greater Vancouver 2022 BCSC 2174 when it comes before the BC Court of Appeal this fall. The case stands to impact core housing rights and tenancy protections for low-income communities, especially where a deepening housing crisis has led many people to be pushed out of their homes and neighbourhoods.

This is part 1 of a 3-part series on housing justice in so-called Vancouver, the unceded territories of the xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and Sel̓íl̓witulh (Tsleil-Waututh) peoples.

About This Case: A Fight for Basic Tenancy Rights

Nicole McNeil is a tenant at the Mazarine Lodge, a building operated by the non-profit landlord, Elizabeth Fry Society. Nicole sought to challenge unreasonable guest bans imposed by the non-profit landlord, which are prohibited under the Residential Tenancy Act (“RTA”), BC’s primary tenancy law. Nicole applied to the Residential Tenancy Branch (“RTB”) for protections under the RTA.

Nicole believed she was living in “supportive housing”, which is protected by the RTA. Elizabeth Fry Society, claimed that her housing is “transitional”, which is not protected under the RTA. On December 13th 2022, the BC Supreme Court agreed with the RTB that her housing was transitional - leaving Nicole with no tenancy protections under the RTA and no avenue to challenge violations of her housing rights. In January 2023, McNeil appealed this decision to the BC Court of Appeal. A hearing has been set for October 16-17, 2023.

Why This Case Matters to Us?

Our Homes Can't Wait is a coalition of Downtown Eastside organizations and allies on the stolen and unsurrendered territories of the xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and Sel̓íl̓witulh (Tsleil-Waututh) peoples. Collectively they struggle for universal housing, free from unjust surveillance and management. Pivot Legal Society is a member of this coalition.

Many of OHCW’s members are living on welfare, pension and other forms of social assistance, meaning they are forced to live in low-income housing such as single room occupancy buildings (SROs), “supportive”, and “transitional” housing. Pivot and OHCW intervened in this case to make sure the Court hears from groups who will be directly impacted by weakened tenancy protections.

OHCW members know how dehumanizing it can be to live in housing where they are treated as patients or prisoners rather than protected tenants. Many OHCW members have been shuffled between different carceral and temporary shelters that lack adequate, if any, tenancy protections, and undermine people’s basic human rights. They know what it’s like to deal with landlords and other housing providers that impose arbitrary rules, such as ID checks, curfews, and guest bans. They also know that access to housing is a basic human rights issue, and that unfair housing policies undermine autonomy and ultimately remove people from their communities and family supports.

What is at stake in this appeal?

McNeil’s case is not an isolated instance. Non-profit landlords maintain restrictive policies that contravene the RTA, all the time. It is illustrative of widespread systemic barriers and housing conditions that routinely lead to tenants being harmed and evicted.

Instead of permanent and adequate housing, which is recognized under the National Housing Strategy Act, S.C., 2019 in Canada, state-led housing first models often use “supportive housing” and “transitional housing” as a response to so-called chronic, or long-term, homelessness. As city planning boards in Vancouver continue to approve plans for private development and city council debates motions for modular and other forms of supportive housing that do not adequately meet people’s housing needs, we recognize these are band-aid solutions to addressing a set of interrelated crises of colonial drug policies, housing affordability and evictions.

While non-profits like Elizabeth Fry Society claim these models offer immediate or “rapid” access to housing, the experience of tenants is that this housing lacks adequate protections and often comes with poor housing conditions that ultimately leave communities at greater risk of evictions and continued displacement from low-income neighbourhoods that are closer to people’s cultural and health supports.

It is common for low-income housing to be in rundown buildings that lack basic infrastructure and amenities. Tenants have to endure recurring structural and health hazards, such as pests, rat infestations, damaged windows and walls, broken elevators, catastrophic fires, and poisoned water sources, that compromise people’s health and well-being.

As Our Homes Can’t Wait member, Dianne Campbell remarks:

“People end up in worse health conditions then before they entered that housing.”

Tenants need to be able to apply to the RTB to have their basic rights respected, to hold their landlords accountable for required maintenance and repairs, and to challenge unlawful evictions. Under BC’s RTA, there is ambiguity in the way that the law defines transitional housing, which is exempt from the Act, and “supportive housing” which is covered.

This ambiguity allows non-profit landlords to claim that tenants of “supportive” housing, are actually in transitional housing, and so they are not entitled to basic tenancy rights and protections. Sometimes the RTB agrees with the tenant and they receive RTA protection; and sometimes, like in this case, the RTB agrees with the landlord – leaving people no avenue to challenge unlawful landlord conduct including restrictive policies that undermine people’s agency, self-determination and the ability to lead fulsome lives.

Members of our group [Our Homes Can’t Wait] are affected as well, by the lack of clarity in the RTA. Like myself, maybe I should get a copy of my [tenancy agreement] to make sure that I am protected. Most people haven’t read the tenancy agreements, they just want to get into their place, because their situation of being homeless, they panicked, and a lot of people are getting caught up in the same issues with [landlords].

- Dianne Campbell, Our Homes Can't Wait member

In this case, the Court of Appeal is being asked to clarify this area of law so that tenants know whether their housing is protected or not. The approach taken by the Court in reviewing the RTB decision will therefore have significant impacts on how decision-makers apply the RTA going forward and whether low-income tenants will have access to the RTB – BC’s only dispute resolution mechanism for tenancy matters.

If you’d like to read more about the case and our intervention, check out the BC Court of Appeal decision for Pivot and OHCW’s application for leave to intervene.

Check out part 2 in our series!