Kelowna landlord fined close to $12k for illegally evicting tenant

Landlord hit with hefty fine

A landlord will have to pay her former tenant close to $12,000 for evicting him from a Kelowna suite back in 2020, before changing her mind about moving into the unit.

Henni Dyck provided her tenant Gary Lyndon with two months notice to leave the suite in late September 2020, stating that she or her “close family member” intended to occupy the unit. Lyndon moved out on Nov. 1, 2020.

A landlord can legally evict a tenant if they or a close family member moves into the unit and resides there for at least six months.

But Lyndon noticed on April 15, 2021, within that six-month window, that the suite was put up for sale.

“I know that neither the owner nor her family moved into the suite - I saw it remained empty after I moved out. Neighbours confirmed no one moved in before selling. I am sure that the owner did not act in good faith evicting me,” Lyndon told the Residential Tenancy Branch.

RTB hearings on the dispute were held in March and May 2022, and an arbitrator ultimately ruled in favour of Lyndon in June 2022, ordering Dyck pay him a penalty of $11,860 – 12 times the monthly rent of $980.

But Dyck appealed the arbitrator's decision, seeking a judicial review through the BC Supreme Court.

Dyck did not claim that she didn't occupy the suite for the required time period, but instead argued there were extenuating circumstances that prevented her from doing so.

In the recently published judicial review decision, Justice Allan Betton noted that the essence of her argument was that she “changed her mind about retiring and moving into the unit in light of COVID.” Dyck worked as a nursing program director at a Manitoba hospital and did not feel comfortable retiring while the pandemic caused so many problems in healthcare.

“The changing circumstances delayed my retirement plans, and it was apparent the Manitoba government was not lifting the restrictions in the near future,” she said. “At the beginning of April I had no idea when I would feel comfortable retiring and I had no idea when I would be able to use my condo again.”

Justice Betton noted Dyck's decision was an admirable one.

“The landlord’s decision not to retire may be lauded as an example of how many in the health care industry stepped up at the expense of their own plans to assist others, making personal sacrifice for the greater good,” the Supreme Court justice said.

“The question before me, however, is whether the decision of the arbitrator is patently unreasonable.”

Justice Betton found the arbitrator did not make their decision in bad faith, for an improper purpose, based on irrelevant factors nor failed to take statutory requirements into account.

“Nor can it be described as 'clearly irrational' or 'evidently not in accordance with reason' or 'so flawed that no amount of curial deference can justify letting it stand,' he ruled.

“Whether I may have reached a different conclusion (and I make no comment on that question) is irrelevant. It is not my task to re-weigh the evidence. Simply put, I am unable to say the decision was patently unreasonable.”

As such, Justice Betton dismissed Dyck's petition and upheld the arbitrator's $11,860 penalty.

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