Firm Publications
Recent Amendments to the Strata Property Act, SBC 1998, c 43
Recently, Tanner Gervin prepared a review of changes to the Strata Property Act since November 23, 2022. Recent changes include changes to rental restrictions and age restrictions for strata properties. Tanner's review of these recent legislative changes can be accessed at the link below.
Case Comment: Persica Consulting Inc v Wescana Properties Inc, 2021 BCSC 2268
Earlier this year we conducted a trial before the BC Supreme Court. Our client was successful - the tenant's claim that our client unreasonably withheld consent to an assignment was dismissed, and our client's counterclaim for actual legal costs for enforcing the lease when the premises were abandoned was allowed.
Three observations from this case that may interest both commercial landlords and tenants. First, for tenants, careful about including with the request for an assignment a request to change the terms of the lease (such as to extend the term). This likely will mean that you can no longer rely on the assignment provisions of the lease concerning the landlord's obligation not to unreasonably withhold consent.
Second, for landlords, careful about accepting e-mail service of lease related matters. A very casual email mentioning assignment might be construed by a court a request for assignment, which cannot be ignored.
Third, depending on the terms of your lease, just because you are current with rent doesn't mean you haven't abandoned the premises if you take all of your inventory elsewhere and cease operations.
Case Comment: Morse v Crystal River Court Ltd, 2021 BCSC 1868
In this judicial review proceeding, the tenant's tenancy was ordered ended by an arbitrator after a hearing. One of the tenants' arguments was that the hearing was procedurally unfair, because the tenants did not receive the landlord's evidence package which it relied upon at the hearing. The arbitrator continued with the hearing despite the fact the tenants did not have the landlord's evidence.
However, a full review of the record before the arbitrator showed that, while the tenants did not have the landlord's evidence, they were aware of what it contained, and they made written and oral submissions in response to it. Also, importantly, they did not appear to request an adjournment of the hearing. There was, therefore, no evidence of prejudice such that the hearing was procedurally unfair.
The tenants also argued that the arbitrator’s legal analysis was patently unreasonable. In order to establish that an arbitrator’s reasoning is patently unreasonable, the petitioner must show that the arbitrator’s reasoning “borders on the absurd”. The tenants argued that the arbitrator’s reasoning contained a fundamental error – a failure to set out why and how the arbitrator applied a Policy Guideline published by the Residential Tenancy Branch of British Columbia which appeared relevant to the dispute.
The presiding justice confirmed that policy guidelines published by the Residential Tenancy Branch of British Columbia are not law and are not legally binding. They are informative guidelines that assist members of the public and guide arbitrators about criteria to be used in the decision-making process. There was evidence before the arbitrator that could be used in making the decision that was made, so it did not “border on the absurd” for the arbitrator to order the tenancy ended.
All of our legal articles are provided for general legal information only, and do not constitute legal advice about the circumstances of your case.