Published In: Administrative Law Newsletter – 21.Aug.18 August 21, 2018

Case Summary: This case involves judicial review of a decision of the Residential Tenancy Branch finding that a non-profit community housing guest policy was discriminatory and harmed the residents. The court dismissed the judicial review, finding that the Tribunal’s decision was reasonable.

Administrative law – Decisions reviewed – Residential Tenancy office – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness – Landlord and tenant – Residential tenancy agreements

PHS Community Services Society v. Swait, [2018] B.C.J. No. 958, 2018 BCSC 824, British Columbia Supreme Court, May 18, 2018, N. Sharma J.

PHS Community Services Society (“PHS”) sought judicial review of a decision of the Residential Tenancy Branch (the “Branch”) in which the Branch found that the housing facility of the PHS was not exempt from the Residential Tenancy Act (the “RTA”) and that its guest policy violated its terms.

PHS is a non-profit community service society. It had a contract with BC Housing to operate the Johnson Street Community Housing Project (the “Facility”), a facility that provides affordable rental units and other support services to its residents. The guest policy limited visiting hours between 8:00 am until 10:00 pm. It required that all guests sign in at the front desk and present valid identification. Residents argued to the Branch that the guest policy was unreasonable, invasive and discriminatory. The residents argued that many of their guests (family and friends) didn’t have valid photo identification and were denied access. Since many of these guests provide the tenants with certain medical supplies/support, the residents argued their health was put at risk because of the policy.

Under section 9 of the RTA, a landlord must not stop tenants from having guests under reasonable circumstances. The residents argued the guest policy violated this section. The Branch ultimately agreed. The PHS sought judicial review of the decision.

There were two key issues on judicial review. First, whether the decision of the Branch respecting the status of the facility under the RTA was reasonable. Second, whether the decision of the Branch respecting the guest policy was reasonable.

The court agreed with the Branch’s conclusion that the Facility was not exempt from the RTA or its terms. The RTA applies to “all tenancy agreements, rental units and other residential properties”. PHS tried to argue that it provided unique housing to its tenants, which included a variety of health care and other support services. PHS argued the RTA was intended to only cover facilities operating in a commercial setting for profit. The court disagreed. Fundamentally, the court held there was no justification why tenants who are being given a social benefit of below market housing, in an effort to try and stabilize their living situation, ought to be given fewer legal rights than tenants paying market rates. For this reason, the Facility was not exempt from the RTA.

The court also rejected the argument that the Facility was exempt under section 4(6)(v), which exempts a “housing based health facility that provides hospitality support services and personal health care”. The court held the Branch’s decision was reasonable and that PHS’s arguments on judicial review was asking it to re-weight evidence and to re-argue its case, something it was not prepared to do. The court pointed to the fact that the additional health services were optional and the tenancy agreement only provided for housing, water, electricity, heat and room check; items most tenants would expect in usual housing situations.

When it came to the guest policy, PHS’s primary argument before the Branch was that the policy was necessary to protect residents given the current opioid crisis. It provided some evidence to support this position. Ultimately, the Branch found this evidence unconvincing. Again, the court appeared concerned that PHS was asking the court to reweight evidence that was appropriately considered by the Branch: “I am satisfied the arbitrator looked at the evidence provided that was material to the issue of the reasonability of the Policy. I am also satisfied that there is clear and cogent explanation of his reasoning and ultimate decision about the Policy.” (para. 84) This deferential approach emanates the decision.

For these reasons, the court held that there was nothing about the decision that was patently unreasonable. Consequently, the court dismissed PHS’s petition for judicial review.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.