Citation:
Walker v. B.C. Housing Management Commission,
2007 BCCA 32
Date: （略）
Docket: CA034651
Between:
Margaret Jandyra Walker
Appellant
(Petitioner)
And
British Columbia Housing Management Commission
Respondent
(Respondent)
Before:
The Honourable Madam Justice Ryan
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Hall
R. W. Parsons
Counsel for the Appellant
S. Black
Appearing as Agent for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
9 January 2007
Place and Date of Judgment:
Vancouver, British Columbia
16 January 2007
Written Reasons by:
The Honourable Mr. Justice Hall
Concurred in by:
The Honourable Madam Justice Ryan
The Honourable Madam Justice Newbury
Reasons for Judgment of the Honourable Mr. Justice Hall
[1] This is an appeal from a judgment of Meiklem, J. dated November 30, 2006, dismissing a petition brought by the petitioner seeking to set aside a decision of an arbitrator made under the provisions of the Residential Tenancy Act, S.B.C. 2002, c. 78 (“the Act”). The decision of the arbitrator was dated November 22, 2006.
[2] By way of background, the appellant, who suffers from some disabilities, has been a tenant for the past sixteen years at a social housing complex in the City of Vancouver. The entity in charge of the complex is the British Columbia Housing Management Commission (“the Commission”). A clause in the agreement under which the appellant has occupied the premises reads as follows:
RENT is due and payable in advance on or before the first day of each calendar month at such place and in such manner as the Lessor may from time to time designate in writing. The amount of the rent payable will be based on thirty percent (30%) of the Tenant’s gross monthly household income as amended from time to time. The Tenant agrees at least once in every twelve-month period and from time to time as required by the Lessor, to declare the number of Tenants and Occupants in the Premises and their names, ages, gross incomes and assets on a form provided by the Lessor. Proof of income and assets must be provided with the declaration. Such declaration and information provided therewith form part of this Tenancy Agreement and the information contained therein and therewith shall be material and fundamental to this Tenancy Agreement. Failure by the Tenant to fully and promptly co-operate in making a declaration as required by the Lessor, or any misrepresentation by omission or commission shall be cause for termination of the tenancy.
[3] The premises, which are said to be a two-bedroom suite, were occupied by herself and her son. Her son became an adult in 2005. In the year 2005 it came to the attention of the Commission that the son was earning income and the rent was adjusted upwards to reflect that circumstance. As can be seen from the above noted clause in the tenancy agreement, the level of income of occupants of a suite is the key determinant of the amount of rent payable for a suite. Difficulties ensued in the orderly payment of this increased rent. In 2006, as the year went on, payments were often in arrears or deficient. This led to a series of notices from the Commission advising Ms. Walker that if payment was not made in a satisfactory and timely way, she could face eviction. Apparently she was encountering difficulty in having her son contribute a requisite share of the rent of the premises. In October a notice to end tenancy was served upon Ms. Walker by the Commission. The reason for the notice was stipulated to be for failure to pay arrears of rent. There was said to be a sum in excess of $500.00 unpaid.
[4] A hearing, which I gather was a telephonic hearing, occurred before a designated arbitrator under the Act. It is not entirely clear as to exactly what was said during the hearing by the appellant tenant, Ms. Walker. She indicated that she had not succeeded in being able to garner sufficient contribution from her son to pay the rent due in full. She did indicate at one point during the hearing that if she was required to move, she was “half packed-up” to do so. Although there seemed to be some suggestion at the hearing before Mr. Justice Meiklem that she was thereby assenting to an order, I am satisfied that that inference should not be drawn from that comment. All that I would draw from that comment in the circumstance is that she was saying that if an order was made against her, then she might be in a position to comply with it. I do not consider that she was, in any way, consenting to an order being made by the arbitrator to that effect. The arbitrator concluded that the landlord, the Commission, was entitled to the order of possession that it sought, and she made an order granting possession to the landlord as of 30 November, 2006 and, as well, made an order for financial payment of $405 to the Commission. It was this order that the appellant sought to have reviewed by Meiklem, J. Meiklem, J. sustained the order made by the arbitrator and dismissed the petition. Thereafter the appellant appealed to this Court and was granted a series of stays during the continuance of the proceedings in this Court.
[5] The appellant had counsel before Meiklem, J. but did not have counsel during the preliminary proceedings in this Court in chambers.
[6] In the best traditions of the Bar, Mr. Parsons acting as pro bono counsel appeared on behalf of the appellant before the division hearing the matter in this Court. He advanced a number of arguments on behalf of the appellant. He submitted that a construction of a Regulation of the Act supported the proposition that the only income to be considered was the income of the tenant, Ms. Walker, who had signed the original tenancy agreement. We did not require to hear from the agent for the respondent on this question as we are satisfied that the Regulation in question cannot bear that construction. It seems to us that under the regime governing this type of housing, the level of income to be considered must be household income or otherwise the scheme would not make sense. Counsel for the appellant further submitted that the proceedings before the arbitrator were unsatisfactory and that this should have led Meiklem, J. to set aside the proceedings and order a new hearing.
[7] While the proceedings were relatively summary, it seems to me that having regard to the relatively straightforward issue in the case, namely, whether or not the rent due and payable was being paid in a timely way, the hearing was an adequate one to explore this issue. The position of the appellant throughout seems to have been that although she was willing to pay her share of the rent in a timely way, she had not been able to prevail upon her son to pay up the amount that was due from him. But the workability of this subsidized housing scheme would be seriously compromised if it were the case that payment of the amount due on account of the rental of the suite could be evaded on the basis that there was some sort of divided responsibility on the part of suite occupants for the global amount payable on account of the suite rental.
[8] There had been a history of difficulty in timely rent payments throughout the latter half of 2006 concerning this suite and the landlord had little alternative but to move for a remedy. Counsel submitted that there might have been some confusion caused to the appellant by reason of a number of notices that had been issued in the latter half of 2006, but I am satisfied that the appellant was well aware of the difficulty that occasioned the notices and was not confused about what was being sought. If that were all there was to this case, I would consider this appeal should be dismissed.
[9] In affidavit material filed before this Court is found the following paragraph from the affidavit of the appellant:
In early October 2006, however, my son lost his job and, with no income, was unable to pay any portion [sic] the rent. My son contacted Dale McMann, who I understand to be employed by the Respondent, to request a reassessment of his declaration of income and assets. To date, to my knowledge, my son has not received a response to his request.
[10] If this factual circumstance was extant in October and November 2006 at the time of the notice and the hearing before the arbitrator, then arguably the monthly rental figure applicable to this suite should be based only on the income of the appellant. In that event, there would not be an arrears situation. It seems mystifying that if this factual situation existed when the matter was before the arbitrator that the appellant failed to make this factual point to the arbitrator. The arbitrator cannot be expected to be a mind reader.
[11] As noted in the case of Gleneagle Manor Ltd. v. Finn’s of Kerrisdale Ltd. (1980), 116 D.L.R. (3d) 617 (B.C.S.C.) the courts possess the power to grant relief from forfeiture in tenancy matters. Because there may have been a genuine factual misapprehension in this case, namely the true income level of occupants of this suite at the relevant time, it seems to me appropriate for the Court to exercise its power here to avoid a possible injustice. A new hearing before an arbitrator should be ordered so that the full facts of this income situation can be ascertained. As observed above, the total income of all suite occupants is the measure of rent due under the regime applicable to this type of rental unit.
[12] The appeal should be allowed and the matter remitted for a new hearing, which hearing should take place without delay.
“The Honourable Mr. Justice Hall”
I agree:
“The Honourable Madam Justice Ryan”
I agree:
“The Honourable Madam Justice Newbury”
