‘Uninhabitable’: Seniors fighting eviction in rental with a hole in the ceiling win reprieve

A senior couple fighting to stay in their “significantly” below-market rental – despite it having a hole in the ceiling – has won a reprieve from the B.C. Supreme Court.

In an Aug. 28 ruling, the court set aside two 2024 decisions by the Residential Tenancy Branch, which originally upheld a four-month eviction notice given to Janet Fraser, 73, and her partner Jerry, who is 69 years old, deaf, and suffering from stage 4 cancer, plus multiple sclerosis.

“Having occupied the unit for over 20 years, she pays just $780 per month, which is significantly below-market rent,” said the court decision. “Ms. Fraser believes that her rent is the lowest in the building. Losing this long-standing, affordable housing would cause severe hardship for both Ms. Fraser and her partner, Jerry.”

The eight-unit rental building was purchased by a numbered company in 2023, which was followed by several tenants receiving eviction notices.

Fraser received an eviction noticed that was cancelled due to a spelling error. That was followed by a second four-month notice to end tenancy for demolition and conversion of the rental unit so a caretaker could move in. Fraser challenged the eviction with the RTB, but lost. She then challenged that decision, but lost again in an RTB review decision two months later.

Fraser asked for a judicial review with the B.C. Supreme Court, which has set aside the two decisions and ordered a new RTB hearing with a new adjudicator.

At the heart of Fraser’s challenge was the assertion that there were “shifting” reasons listed for the eviction. One was the conversion of the unit for a caretaker, with the landlord saying only Fraser’s unit was available for caretaker use, the ruling said.

“She testified that four other units in the building were vacant and therefore could have been used for this purpose,” the court ruling said. “To support her position, she produced three eviction notices that had been issued to other tenants in the same building only months earlier, each citing ‘family use’ as the reason for ending the tenancy.”

But after a January 2024 water leak damaged Fraser’s unit, including creating a hole in the ceiling that to this day is still not fixed and just covered in a tarp, Fraser was told by the property manager that the unit was “uninhabitable,” the court ruling said. She was “urged” to move out, the court ruling said.

Fraser also alleged that there was another underlying reason why the landlord wanted the couple to move out.

“Ms. Fraser advanced an argument that her eviction notice was not issued in good faith and was part of a larger scheme to remove lower-paying tenants from the building,” the court ruling said.

“The concern was not abstract. Ms. Fraser advanced evidence that directly raised the possibility of a dishonest or ulterior purpose. She pointed to a pattern of inconsistent and shifting explanations for why she needed to vacate the unit, including multiple attempts to evict her based on required repairs, followed by the inconsistent assertion, without any intervening change in circumstances, that the unit would instead be used to house a caretaker immediately.”

The B.C. Supreme Court ruled in Fraser’s favour, saying the RTB decisions didn’t take into account many of Fraser’s legitimate arguments.

“Consequently, I find that the Review Decision reiterated the conclusions found in the Underlying Decision, without resolving the evidentiary inconsistencies or engaging with the contradictions in the Landlord’s evidence,” the court ruling said. “If I were required to conduct a judicial review of the Review Decision, I would find that the Review Decision fell into the same errors as the Underlying Decision, and is, for the same reasons articulated above, patently unreasonable.”

The court ruling said the RTB didn’t properly address the shifting explanations for the eviction.

“The reasons do not reconcile how the unit could both require lengthy repairs necessitating vacancy and, simultaneously, be suitable for immediate caretaker occupancy by July 1,” the court decision said. “This inconsistency, raised by the tenant, was not addressed.”

The court ruling said the “failure to consider relevant and directly conflicting evidence constitutes a serious omission. Adequate reasons require an adjudicator to grapple with the broader factual matrix, weighing the evidence and applying it to the legal test in a way that permits meaningful review.”