3 min

Bay Towers tenants fight eviction

RTO arbitration yields disparate results

Credit: Natasha Barsotti photo

Student Sarah Berry will go on living in her home, at least for now, after the BC Supreme Court set aside an eviction notice against her, Jan 12, pending a judicial review.

Berry’s new landlord, Hollyburn Properties, wanted her out of her eighth floor suite at Bay Towers at 1461 Harwood St by Jan 15, but the ruling means she can stay put, at least until the end of the month. If no date for a judicial review is set by Jan 31, Berry will have to apply for a new stay every month until a date is set.

Beginning last March, Bay Towers tenants received notice from Hollyburn that rents would be jacked-up to “market levels,” well over the four percent annual increase allowed under the Residential Tenancy Act.

Some tenants, like Janine Fuller and Julie Stines, initially agreed to pay the increase; others, like Aerlyn Weissman and Sharon Isaak refused. But last summer, Hollyburn issued eviction notices to everyone saying they needed vacant possession of suites so they could conduct renovations.

That decision motivated Fuller/Stines and Isaak to contest what they see as Hollyburn’s “eviction-by-renovation” tactic through the Residential Tenancy Office (RTO) in Burnaby. They won and had their evictions set aside Oct 25. (Hollyburn has since appealed that arbitration to the BC Supreme Court; no court date has been set.)

But when Berry went to the same RTO to fight her eviction from the same building, it was upheld.

“It came down to the hardwood floors,” says Berry. “[The arbitrator] said there is no minimum time requirement attached to vacant possession, so I’m just going to say [you] need to be evicted because it seems the hardwood floors require it, and that’s it.”

That scenario is dangerous for tenants, argues Berry, who says she produced an affidavit from Weissman who had her floors done years ago without having to move out.

“If someone came in and said, there’s going to be fumes in your apartment for a couple of hours, technically they can evict you because there is no minimum time requirement,” says Weissman who accompanied Berry to court, Jan 12. “The judge said that’s unreasonable.”

Weissman believes Hollyburn’s conduct violates the spirit of the Residential Tenancy Act.

“People pointed out [before the act became law] that this renovation thing would serve to deprive [tenants] of security of tenancy,” she says. “There is no definition of what renovations would trigger [vacant possession] and it’s being used to facilitate mass evictions.”

Weissman says the Fuller/Stines-Isaak success with the RTO is nothing short of unusual. But what’s disconcerting, she adds, is that RTO arbitration is such a roll of the dice.

In the Bay Towers cases thus far, she says, the evidence presented on both sides has been similar if not identical, yet the outcome has been different each time. There is one decision still pending.

When the discrepancy is pointed out to the RTO, says Weissman, they respond that it is simply how the process works.

So far, says Weissman, who is in the midst of her own arbitration process, of the 38 suites in Bay Towers, four sets of tenants have contested their evictions and one more is considering doing so.

She says it’s “unheard of” for so many arbitrations to come from a single building, but adds that the RTO process is so “Byzantine and torturous,” that the average person cannot access it or would rather not try.

“How can you deal with that if you work until 5 pm?” she asks. “The [RTO] closes down at 4:30 pm. If you don’t have a vehicle, it’s an hour and a half by public transport. The phone queue is an hour and half before someone will speak to you, just to find out something basic. There’s a fax queue of 10 days. The e-mail queue is 10 days. Given the deadlines for filing things and responding, you don’t have a chance in hell.”

Berry, for example, says she burned through two ink cartridges just printing evidence for her hearing.

And renovations on Bay Towers are already under way. For more than a week, Weissman has waded through the plastic sheeting festooning her fourth floor suite. Her bathroom is out of commission. When she has to shower, she prevails upon Fuller and Stines who live on the top floor.

Weissman is the only tenant left on her floor. Everyone else decided, for one reason or another, not to contest their evictions and move away.

“It’s weird,” says Weissman. “You go home at night, you get off the elevator and there’s no one else around. We’ve moved from a close-knit community to having no one around. If you had a problem, you’d have to get upstairs to get help. It’s pretty strange.

“I guess the one good thing is I can crank up the stereo now,” she jokes.