Tenant who filed late application contesting eviction settled RTB case under duress, B.C. court rules

This stock image shows a door with an eviction notice on it. (Credit: Shutterstock)

A downtown Vancouver tenant who settled a dispute over an eviction notice did so under duress, the B.C. Supreme Court has ruled.

Marian Kurvers brought her case to the court in a petition for judicial review, arguing that the Residential Tenancy Branch arbitrator who heard her case conducted the hearing in an unfair manner.

Specifically, she argued that the arbitrator had exerted undue pressure to get her to accept a settlement proposed by her landlord, Strathmore Lodge Ltd. She told the court she ultimately did so because she felt she had no other choice after the arbitrator told her she had filed her application late.

In a decision issued last week and published online Monday, Justice Scott Morishita agreed with Kurvers, finding that the RTB hearing was “procedurally unfair” and ordering a new one.

‘Challenging’ landlord-tenant relationship

Morishita’s decision does not give the name or address of the downtown Vancouver apartment building where Kurvers began renting a unit on Jan. 1, 2019.

It describes the evidence that was before the RTB arbitrator as showing “a landlord-tenant relationship that was challenging.”

“The landlord alleges that since the tenant moved into the subject rental unit, she has been very difficult to manage, initiated a number of legal proceedings, and has been causing harm to the subject rental unit and other tenants of the building,” the decision reads.

It specifically notes allegations that Kurvers installed duct tape that is “obstructing ventilation and creating a safety hazard,” breached other residents' “right to quiet enjoyment,” and failed to comply with the landlord’s requests for access to her unit to address maintenance issues.

For her part, Kurvers alleged that it was the landlord that installed the duct tape, not her. She also alleged that the landlord had “failed to make required repairs and remediation,” had refused to address her complaints about cigarette smoke, and had been “bullying and harassing her.”

“Matters came to a head on Sept. 24, 2024, when the landlord attempted to serve the tenant with a one-month notice to end tenancy for cause,” the decision reads, noting that Kurvers did not sign a document confirming in-person service of the eviction notice.

The landlord also served her with the eviction notice by email and registered mail, and this triple-service ended up contributing to the procedural unfairness of the RTB hearing.

10-day deadline

Kurvers challenged the eviction notice through the RTB, but she filed her challenge on Oct. 9, 2024, 10 days after the date she received the notice via registered mail.

Under B.C.‘s Residential Tenancy Act, a tenant has 10 days to challenge a notice to end tenancy from the date they receive it. A tenant who fails to challenge a notice within that time frame is deemed to have accepted the notice and expected to move out on the date specified within it.

Because she was first given the notice in-person on Sept. 24, Kurvers had until Oct. 4 to challenge it, according to Morishita’s decision.

“The tenant was under the mistaken belief that because she was served with the notice to end tenancy by three methods, she could choose which of the three methods she was served by, and that she would be bound by the deadline associated with that method of service,” the decision reads.

“The tenant believed that she could rely on the deemed service by registered mail, which would correspond to an Oct. 9, 2024, deadline to file an application for dispute resolution.”

The arbitrator, who is not named in the court decision, concluded that because Kurvers filed her application after the deadline, the only options at the hearing were for the parties to reach a settlement on a move-out date or for the arbitrator to issue an order setting one.

Kurvers told the court she was prepared to present her case to the arbitrator that would demonstrate the landlord’s alleged mistreatment of her, but the arbitrator wasn’t interested in hearing it, focusing only on the deadline issue.

A transcript of the hearing, partially reproduced in the court decision, shows that Kurvers asked for a move-out date of Dec. 30, but the landlord would only agree to a settlement with a move-out date of Nov. 30.

“That’s only three weeks,” Kurvers says in the transcript.

“That’s not even a month. That’s just, I just can’t manage in that short a period.”

The arbitrator’s response noted the possibility that an order of possession in favour of the landlord – rather than a settlement – could take effect as soon as seven days after the hearing.

“It’s up to you what you would prefer, for the landlord to provide you the opportunity to stay until the end of the month, or – if you would like – a decision made where there’s a possibility that you would have to move out sooner than that,” the arbitrator says in the transcript.

“Well, I don’t really have a choice then do I?” Kurvers responds. “I have to take the 30th (of) November?”

Ultimately, that’s what Kurvers agreed to, and the arbitrator issued a decision confirming the settlement.

‘Procedurally unfair’

In his judicial review decision, Morishita rejected the arbitrator’s binary assessment of the situation, noting that a third option was available, but never presented to Kurvers.

The judge noted that the Residential Tenancy Act allows arbitrators to extend the deadline for filing a dispute resolution application in “exceptional circumstances.”

“It may very well be that the petitioner’s reasons for filing her dispute late did not amount to exceptional circumstance; however, at no point in the hearing did the arbitrator mention that the petitioner could apply for an extension of the deadline,” Morishita’s decision reads.

“The petitioner did try to provide an explanation. She indicated that she filed her dispute by the deadline associated with the service by registered mail, which she thought was acceptable. The arbitrator was dismissive of the petitioner’s attempts to explain the late filing.”

This dismissiveness, in Morishita’s view, also contributed to a “reasonable” concern that the arbitrator had pre-judged the issues at play in the case, and that Kurvers was unlikely to receive a better outcome if she chose not to settle.

“I accept the petitioner’s evidence and argument that she felt she had no choice but to settle with the landlord,” the judge’s decision reads.

“In other words, I find that the petitioner agreed to the settlement under duress and that the duress was caused by the arbitrator conducting the hearing in a procedurally unfair manner.”

Morishita remitted the case to the RTB for a new hearing.