Lady Justice at B.C. Supreme Court in New Westminster. (Photo: Tom Zytaruk)

Lady Justice at B.C. Supreme Court in New Westminster. (Photo: Tom Zytaruk)

Surrey landlord’s petition to overturn RTB decision fails

Case involved former tenant evicted from basement suite on grounds his landlord needed it for family

A B.C. Supreme Court judge in New Westminster has dismissed a Surrey landlord’s petition to have set aside a Residential Tenancy Branch decision involving a former tenant who sought compensation after he was evicted from his basement suite on grounds they needed it for family.

Justice Elizabeth McDonald heard that John Henry Damiano rented a basement suite from Amarjit and Kamaljit Johal in Surrey until the end of October 2018.

That December, he submitted an Application for Dispute Resolution to the Residential Tenancy Branch (RTB) seeing compensation for money lost. Damiano claimed the Johals served him with a two-month notice to end his tenancy because they needed the suite for their family. He also claimed they failed to compensate him for the two-month notice and had begun to rent the suite to someone not a “close family member” as defined in the Residential Tenancy Act.

An arbitrator awarded Damiano a monetary order on April 17, 2019. The Johals didn’t attend that hearing and on May 24 filed a petition to have the review decision set aside, bringing the matter before McDonald on Sept. 24.

By way of background, McDonald noted, Damiano had attended a teleconference hearing “but no one appeared for the petitioners.”

“The petitioners submit they did not attend the teleconference hearing because they did not receive the material that Mr. Damiano served.”

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The court heard Damiano had provided the arbitrator with copies of Canada Post registered mail receipts which showed the items were returned to him “unclaimed,” and the arbitrator concluded the Johals were “deemed to have been served” under the Residential Tenancy Act.

On May 24 they applied to the branch for a review on the grounds they were not able to attend the hearing “due to circumstances beyond their control that could not be anticipated,” McDonald noted in her Oct. 11 reasons for judgment, “and they had new and relevant evidence that was not available at the time of the original hearing.”

But the arbitrator dismissed their application, finding the petitioners had “failed to disclose sufficient evidence of a ground for review on the basis that the petitioners were unable to attend the original hearing because of circumstances beyond their control,” and that the “new and relevant” evidence they tendered could have been made available at the original hearing.

The Johals argued the RTB hearing was “procedurally unfair” because they didn’t have an opportunity to present their case, McDonald noted.

“Having found no basis upon which the arbitrator could have rebutted the presumption of deemed service,” McDonald said, “I conclude that the tribunal acted fairly. Accordingly, the application to set aside the Review Decision and order is dismissed with costs.”



tom.zytaruk@surreynowleader.com

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