A B.C. Supreme Court judge has upheld a Residential Tenancy Board arbitrator's decision to award a Surrey tenant $17,236 鈥� equal to a year's rent 鈥� after the arbitrator found her landlord evicted her from the condominium she was renting in Whalley to use as a short-term Airbnb, contrary to the Residential Tenancy Act.
Justice Sandra Sukstorf in her Aug. 25 reasons for judgment, delivered in B.C. Supreme Court in New Westminster, noted the tenant Megan Neuman vacated the one-bedroom condo but filed a complaint with the RTB after later seeing "what she believed was her former residence listed on Airbnb," alleging her former landlords didn't use the unit "for the landlord or a close family member to move in, but instead used the rental unit to generate income as a short term rental."
The landlords 鈥� Cristopher Resurreccion, Leonida Resurreccion and Christian Resurreccion 鈥� petitioned the court for a judicial review of the RTB order to have it set aside but Sukstorf denied it and awarded the tenant her costs in the case.
The petitioners argued the RTB order was "based on speculation, lacked evidence, and breached procedural fairness.
"They claim that the Arbitrator made factual errors and failed to present key allegations to them during the hearing, by drawing an inference, without providing them notice, that they may have altered or staged their rebuttal photos. They argue that this inference was speculative, lacked evidentiary support, and played a central role in undermining their credibility," the judge noted in her reasons.
"After reviewing the evidentiary record and the RTB decision, I am satisfied that the arbitrator鈥檚 findings were reasonable and available on the evidence and do not meet the high threshold for patent unreasonableness. Although the evidence was entirely circumstantial and the arbitrator鈥檚 reasoning was not without imperfections, the decision reflects a tenable and transparent line of analysis,"
"Additionally, there was no unfair breach of procedural fairness. The arbitrator鈥檚 comment about the petitioners possibly staging rebuttal evidence was made in the context of assessing the weight given to evidence provided by the petitioners, did not introduce a new theory of the case that the petitioners did not have an opportunity to respond to, and was not central to the arbitrator鈥檚 determination."
She decided that the arbitrator鈥檚 conclusion the petitioners used the unit for short-term rental was supported by "the cumulative effect of several indicators and falls within the range of outcomes defensible under the applicable legal standard."
The court heard the Airbnb listing and related Facebook photos were removed after Neuman filed her RTB complaint. The petitioners filed affidavits that their son Christian moved into the unit and denied renting the unit through Airbnb.
The petitioners argued that the arbitrator had "fabricated a theory of evidence tampering without providing them with notice, in breach of procedural fairness," the judge noted in her reasons. "They maintain that the tenant failed to confirm the listing and that the evidence does not support a finding of bad faith under the RTA."
On the other hand, she added, the tenant has submitted photos from an Airbnb listing which she claimed matched her former unit, "pointing to similarities in shower tiles, furniture, window markings, and layout. She noted that the host鈥檚 name "Cris" matched the first name of one of the petitioners, that the Airbnb account opened and the listing went live shortly after she vacated, and that she continued receiving buzzer requests on her phone even after moving out. She also asserts that as soon as she made her complaint to the RTB, the Airbnb listing disappeared. She acknowledged not attempting to book the suite but relied on accumulated circumstantial indicators."
The judge found that while the evidence before the arbitrator was circumstantial, the tenant鈥檚 evidence "was not insubstantial."
"I find that the arbitrator鈥檚 reasoning and conclusion demonstrate that the arbitrator assessed the evidence comprehensively rather than relying on a single piece of evidence or indicator," she concluded. "After reviewing all the evidence, the arbitrator identified numerous coincidences linking the petitioners鈥� condo to the Airbnb listing and concluded that it was more likely than not the same unit."
