My insight into a tenant’s fight for justice

My name is Malcolm Funt, and I am a UBC law student and a research assistant with the Housing Justice Project at UBC.

Professor Margot Young, my supervisor, encouraged me to attend a legal clinic hosted by Pivot at the Bosman Hotel. It was there that I first met our “tenant” – I’ll call him “Bob” - who was in the midst of a residential tenancy dispute with his landlord.

When we first met, Bob had already completed a dispute resolution hearing at the Residential Tenancy Branch (RTB). His landlord had been renovating the apartments above and on either side of him over a period of more than six months.  There was a constant barrage of noise and dust in Bob’s apartment, as well as piles of construction debris scattered around the building. Bob believed his rights under the Residential Tenancy Act (RTA) had been violated and had applied for damages of close to $5000 to recover the lost value of his tenancy during the renovation period.  He did so without legal representation, and faced a well-resourced landlord with a lawyer arguing his case.

The Residential Tenancy Act (RTA) is legislation that defines the relationship between landlords and tenants. Both landlords and tenants have a number of rights and responsibilities under the RTA, one of which is the protection of the tenant’s right to quiet enjoyment.   Quiet enjoyment means that a tenant is entitled to reasonable privacy and   freedom from unreasonable disturbance, among other things.  It is entirely within the landlord’s rights to renovate, and thus renovations are not inherently illegal if done correctly. If a tenant believes his or her right to quiet enjoyment (or any other right covered by the RTA) is breached, that person may apply for damages at the RTB.  A hearing will be scheduled, where the landlord and tenant will each be able to voice their side of the story and a DRO will provide a decision on the dispute.

In Bob’s case, the Dispute Resolution Officer (DRO) found that he hadn’t meet the burden of proof required to justify an award of $5000, but that there was a significant disturbance which justified a finding that Bob’s “quiet enjoyment” of the property had been diminished.  The DRO granted the tenant $700 in compensation.

Technically a “win” for Bob, in reality it was more of a loss, as the damages represented less than one month’s rent.  Despite the fact that he’d substantively won the case, the landlord applied for judicial review of the $700 damage award. This meant that Bob would once again face his landlord’s lawyers, this time in BC Supreme Court, as they argued that the small award was not justified. By responding to a judicial review, Bob risked having costs awarded against him. This means that if the decision of the DRO was overturned in favour of the landlord, the tenant may be liable to pay the legal fees of the landlord, which could easily be several thousand dollars. Clearly, this acts as a disincentive for anyone trying to uphold a DRO damage award.

Bob did not know what to do next, so he called Pivot.  Although it was only $700, Bob was thinking of the other tenants in the building who had filed disputes at the RTB.  He wanted to support them and to not let the landlord get away with an injustice.

I had the opportunity to follow this residential tenancy case and assisted Scott Bernstein and another legal intern in preparing to represent Bob at the judicial review hearing. Over the next two months, we met with the tenant, filed an affidavit and drafted arguments for the judicial review hearing. Scott argued Bob’s case brilliantly and was able to articulate the inherent problems in a system where a landlord can use a judicial review to intimidate and deter the tenant from enforcing their rights.

Overall, the dispute resolution process outlined by the RTB is intended to be a fair, relatively inexpensive process that is accessible to both landlords and tenants. Unfortunately, the reality is that landlord-tenant relationships are not balanced. Financial and informational differences mean that landlords and developers have the ability to ignore their duties as landlords under the RTA and fight the decisions of the RTB rather than living up to their responsibilities.

As for Bob, he is currently awaiting the judgment from the British Columbia Supreme Court. Whatever the ruling, the situation speaks volumes about the inefficiencies and inequities of the judicial review process. The tenant stood up for his rights, and the landlord did everything he could to fight back.  Hopefully Bob’s efforts yield a positive result. Either way, the message is clear: if you want to challenge a well-resourced landlord it is going to cost you: energy, time, and likely money. Under the current system other tenants like Bob will likely be deterred from attempting to enforce their rights or give up when it becomes too costly and frustrating to continue… I wouldn’t blame them.

UPDATE - September 26th:  We received a decision in Bob's case recently, and he won the judicial review.  The justice found that the decision from the RTB was fine, and Bob will get his $700.