EKB lawyers Angela Folino and Laura Morrison succeeded in defending a petition for judicial review of a decision by a Residential Tenancy Branch arbitrator in the subsidized housing context.
In Hu v. Red Door Housing Society, 2016 BCSC 1238, the petitioner sought to have the court overturn a decision of the arbitrator upholding a Notice to End Tenancy issued by the landlord Red Door, a non-profit society that provides affordable housing to low and moderate-income families and seniors.
Following an annual income and asset review, the landlord determined that the tenant’s income and assets revealed that the tenant no longer qualified for a rental subsidy. The landlord increased the rent to market rent, but the tenant continued to pay rent at the reduced amount as though she were still receiving the subsidy. Rent arrears accumulated, and the landlord issued a 10 Day Notice to End Tenancy for Unpaid Rent as a result of the arrears. The tenant disputed the notice before the Residential Tenancy Branch.
The issue before the arbitrator at the Residential Tenancy Branch was whether certain amounts which Red Door had counted as “income” were properly considered to be income for the purposes of calculating eligibility for the rent subsidy. The tenant maintained that these amounts were loan proceeds from a friend. Red Door’s policy, in accordance with its agreement with BC Housing Management Commission, was that income from all sources of all adult members of the household was counted as income. Only loans from financial institutions were excluded from the income calculation. The arbitrator found that she did not have the jurisdiction to look behind Red Door’s policy for calculating rent subsidies because housing societies such as Red Door are exempt from the rent increase provisions of the Residential Tenancy Act that apply to residential landlords. Therefore, the arbitrator upheld the 10 Day Notice. The tenant brought a petition for judicial review.
The Court found that the arbitrator’s decision was not patently unreasonable. The court agreed with the arbitrator and Red Door that the Residential Tenancy Branch has no jurisdiction over matters relating to rent increases for a subsidized housing unit because of the Residential Tenancy Act exemption. Thus, the court held that the arbitrator was correct in declining to examine Red Door’s internal policy to only accept loans from financial institutions as “loans”. In other words, it was open to Red Door to consider loans from friends as being income for the purposes of performing rent calculations. The tenant’s petition was dismissed and Red Door’s 10 Day Notice was upheld.
Learn more about administrative decisions and judicial review in a recent article by EKB.