‘Clearly irrational’: B.C. Supreme Court overturns $25K award to evicted tenant

A seaplane takes off past office and condo towers in Vancouver, on Thursday, July 25, 2024. (Darryl Dyck / The Canadian Press)

A B.C. landlord will no longer have to pay her former tenant more than $25,000 after successfully challenging a Residential Tenancy Branch decision in B.C. Supreme Court.

Earlier this year, an RTB arbitrator ordered Feng Ying Yu to pay her former tenant Amber Carreiro $25,444—an amount equivalent to 12 months of Carreiro’s former rent—after finding that Yu’s son had not moved into Carreiro’s former apartment within a reasonable amount of time.

In B.C., landlords may evict tenants without cause if they or a close family member intend to move into the rental unit.

These “landlord’s use” evictions must be made in good faith, and the person moving into the unit must do so within a reasonable amount of time and live there for at least a year. Landlords who fail to meet these criteria and cannot prove there were extenuating circumstances can be ordered to compensate the tenants they evicted.

According to B.C. Supreme Court Justice Wendy A. Baker’s decision—which was issued Nov. 14 and published online earlier this week—the arbitrator in Yu’s case found the evidence she provided to show her son had moved into the apartment deficient.

The decision does not specify where in B.C. the apartment was located, though the court case was heard in Vancouver.

According to the decision, Carreiro had lived in the unit since March 2021. Yu issued the four-month notice to end Carreiro’s tenancy on Jan. 23, 2025, and the effective date of the eviction notice was May 31.

Carreiro moved out early, on March 28, leaving the unit vacant more than a month earlier than required.

Yu’s son told the RTB he moved in on May 9 or 10, and he still lived there when the arbitrator heard the case on June 10.

For her part, Carreiro told the RTB she had heard from others that no one moved into the unit after she moved out, and added that she had seen furniture being brought into the apartment on May 27, suggesting someone was moving in on that date.

As described in Baker’s decision, the arbitrator found Yu’s son’s testimony to be vague and limited, and testimony from a friend of Yu’s who said she helped the son move in was also discounted.

The judge found this approach from the arbitrator strange.

“I have significant concerns with the reasoning of the arbitrator,” Baker’s decision reads.

“Rather than assessing the evidence before him, which included the unchallenged testimony of both the son and the friend, the arbitrator criticized the landlord for not producing additional evidence.”

Baker noted that Carreiro told the RTB she believed people had moved into the apartment about two weeks before the RTB hearing, which would be sometime in late May.

“The effective date of the notice to end tenancy was May 31, 2025,” the decision reads. “It is irrelevant to the calculation of time under (B.C.’s Residential Tenancy Act) if the tenant moved out, unilaterally, before the effective date of the notice to end tenancy."

Regardless of whether the true move-in date was in early May or late May, it was still before the effective date on the eviction notice or—at the very latest—10 days after that date, Baker found.

“On balance, the move in date was likely before the end of May,” the decision reads. “Given the effective date on the notice was May 31, 2025, I find it is clearly irrational for the arbitrator to conclude that a move-in date either before the effective date, or at most 10 days after the effective date, is unreasonable.”

Likewise, because the hearing took place only 10 days after the effective date, the arbitrator’s decision to order compensation was premature, according to Baker.

Compensation can only be awarded in landlord’s use cases if both criteria—completing the reason for the eviction within a reasonable time and remaining in the unit for 12 months—have not been met, the judge ruled.

“Twelve months have not passed and, therefore, the conditions under (the RTA) cannot be met,” the decision reads.

Having reached this conclusion, Baker opted to overturn the RTB decision and dismiss Carreiro’s underlying case, rather than sending the matter back to the RTB.

“I find the reasoning in the (RTB) decision is clearly irrational and so flawed that no amount of curial deference can justify letting it stand,” Baker’s decision concludes.