



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Al-Islam v. Valley Street Property Ltd.,









2019 BCCA 48




Date: 20190201

Dockets: CA44574;
CA44602

Between:

Azra Al-Islam

Respondent

(Petitioner)

And

Valley Street
Property Ltd. and AWM Alliance Real Estate Group Ltd.

Appellants

(Respondents)

And

Director,
Residential Tenancy Branch

Respondent




Before:



The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter




On appeal from: Orders
of the Supreme Court of British Columbia, dated
June 28, 2017 (
Al-Islam v. Kaila
, Vancouver Docket No. S172322 and
Al-Islam
v. Plenert
, Vancouver Docket No. S172323).

Oral Reasons for Judgment




Counsel for the Appellants:



D.K. Georgetti





Representative of the Respondent:



E.A.-I. Rafique





Counsel for Director, Residential Tenancy Branch:



F. Zaltz





Place and Date of Hearing:



Vancouver, British
  Columbia

February 1, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

February 1, 2019








Summary:

Residential Tenancy arbitrators
made orders giving the landlord possession of premises for non-payment of rent
and a monetary award in respect of the tenants overholding. The tenant filed
petitions for judicial review of both orders. The landlord applied to strike
the petitions under Rule 9-5, or for summary judgment under Rule 9-6. The judge
hearing the landlords applications purported to grant the judicial review
petitions. The landlord appeals. Held: appeals allowed, respondent ordered to
amend the petitions. The judge misapprehended the nature of the applications
before him. He could not grant the petitions, as he was not hearing them. With
respect to the Rule 9-5 application, the petitions were defective in several
respects. They need not be struck, however, and the petitioner should have the
opportunity to amend them to comply with the Judicial Review Procedure Act and
the Supreme Court Rules. The summary judgment applications were ill-conceived,
as Rule 9-6 has no application to judicial review proceedings.

[1]

GROBERMAN J.A.
: The appellants appeal from an order of the
Supreme Court that set aside orders of two arbitrators acting as delegates of
the Director under the
Residential Tenancies Act
, S.B.C. 2002, c. 78.
While the background of the case is convoluted, the essential basis for the
appeal is that the judge misapprehended the nature of the proceedings in front
of him. He believed that he was hearing the respondents judicial review
applications when, in fact, he was hearing the appellants application to
strike the petition. On such an application, he was not entitled to grant the
relief that he did.

[2]

To remedy the error, the appellants seek to have their applications
returned to the Supreme Court for a new hearing. In my view, there is no need
to do that. The applications are straightforward and this Court is fully able
to dispose of them. As I will explain, the petitions, as they now stand, are
defective. There is, however, no need to strike them. The petitioner will be
given an opportunity to amend the petitions. Once amended  assuming the
parties do not reach an accommodation on the merits  the petitions can be
heard by the Supreme Court.

Background

[3]

While the factual background of this matter is not particularly germane
to the disposition of this appeal, I will set it out, in order to make it clear
what is at stake in the underlying proceeding, and to give context to the
issues on appeal.

[4]

For a number of years, Ms. Al-Islam resided in a two-bedroom unit
in an apartment building in Vancouver. The building owner was and is Valley
Street Property Ltd., and she paid her rent to that company. Ms. Al-Islams
adult son, Mr. Rafique also resides in the unit, and, indeed, is the only
resident for much of the year, when Ms. Al-Islam is travelling. It is Mr. Rafique
who has been primarily involved in the events leading up to this litigation,
and he has, throughout, appeared on behalf of his mother in proceedings.

[5]

In November, 2015, Ms. Al-Islam and her family moved into a
one-bedroom unit, under a new tenancy agreement, which shows the landlord to be
Valley Street Property. She continued to pay her rent to Valley Street
Property Ltd., leaving the cheques with the building manager.

[6]

Sometime around March 2016, the ownership of the company changed, and it
engaged a management company, AWM Alliance Real Estate Group Ltd., to manage
the building. In March, Tyler Johnson, a representative of the management
company, met individually with tenants, to advise them of the changes and to
introduce himself and the new management company. Among the people Mr. Johnson
talked to was Mr. Rafique.

[7]

In April a package of written materials from the new management company
was delivered to the apartment unit and received by Mr. Rafique on behalf
of his mother. Among other things, the material advised tenants to make future
rent cheques payable to the management company.

[8]

Ms. Al-Islam did not comply with that instruction, continuing to
make cheques payable to Valley Street Properties Ltd. Initially, no
difficulties resulted from that conduct, but in November, 2016, the management
company returned the cheque, and asked for a replacement cheque made out to
AWM Alliance in Trust. Mr. Rafique responded by writing to AWM, stating
that he had determined that title to the property remained with Valley Street
Property, and that he would only make rent payments to that company unless he
received formal authorization from a BC land authority indicating that the
right to rental dues has been transferred to a new owner.

[9]

On December 5, 2016, Mr. Johnson wrote to Ms. Al-Islam,
explaining that while title to the land was still held by Valley Street
Properties Ltd., the ownership of that company had changed, and the new owners
had contracted with AWM to provide management. He indicated that rent cheques
would be accepted if they were payable either to Valley Street Properties or
AWM Alliance in Trust, and asked that the rent cheques be provided to him.
Thereafter, Mr. Rafique took the position that he would pay no further
rent until he received written confirmation from Valley Street Properties Ltd.
that AWM could collect rent on its behalf.

[10]

On January 6, 2017, with the rent for November and December 2016 and
January 2017 remaining unpaid, AWM prepared and delivered a 10 Day Notice to
End Tenancy for Unpaid Rent in the name of Valley Street Property. Mr. Rafique
received the notice. He attended at the office of the Residential Tenancy
Branch to dispute the notice.

[11]

The dispute was heard by teleconference by arbitrator L. Plenert on
February 3, 2017. At the hearing, Mr. Rafique, who appeared on behalf of
his mother, outlined his view that he did not have to pay rent until he had
written confirmation, in a form that he accepted, from the property owner that
he should provide his rent to the management company. He further argued that
the Notice to End Tenancy was invalid because it referred to Valley Street
Properties rather than Valley Street Properties Ltd.. The arbitrator did not
agree, saying:

I find that the 10 day Notice in question satisfies the
provision of section 52 of the Act and is in the proper form. The errors noted
by the tenants son are inconsequential and do not prejudice the tenant in any
way. This is not a case where the tenant was unaware of the landlords address
or to whom the rent was to be paid. The tenant was given very clear direction
by the landlord to the tenant in the letter of December 6 as to the payment of
rent, and that letter clearly bore the address. I find that the tenant knew or
should have known that the rent arrears had to be paid when the notice was
given if the tenant wanted the tenancy to continue, yet the tenant and her son
failed to pay it.

The notice is therefore found
effective to end this tenancy and the landlord has established a right to
possession.

[12]

Thereafter, the landlord brought an application for a monetary award to
cover outstanding rent in the amount of $4,600, and the $100 filing fee for the
application. A second arbitrator, S. Kaila, heard the dispute by teleconference
and granted the application. He made a monetary award of $4,700, and, after setting
off from that sum the amount of $575, being the damage deposit held by the
landlord, ordered Ms. Al-Islam to pay the landlord the amount of $4,125.

[13]

Mr. Rafique, by authority of a power of attorney granted to him by
his mother, commenced judicial review petitions in her name to quash the
decisions rendered by the residential tenancy arbitrators.

[14]

In the meantime, the back rent was paid; Indeed, we have heard today
that rent cheques may even have been tendered before the hearings before the
arbitrators. Further, at least for a time, Ms. Al-Islam paid the rent
coming due each month. The management company accepted the rent as an
occupancy fee, as it did not wish to be seen as acquiescing in the tenants
overholding.

The Petitions

[15]

The petitions were filed on March 10, 2017. Each of the petitions sought
to set aside the order of one of the arbitrators. I would comment that, given
the close connection between the two orders, and the fact that both were made
by delegates of the Director under the
Residential Tenancies Act
, it
would have been preferable for the matter to be brought as a single proceeding.
That said, it was open to Ms. Al‑Islam to seek the relief in two separate
petitions.

[16]

The petitions that were filed, however, were woefully defective and inadequate.
Section 2 of
Judicial Review Procedure Act
, R.S.B.C. 1996, c. 241
requires judicial review applications to be by petition. Under the
Supreme
Court Civil Rules
, a petition must be in Form 66. Section 14 of the
Judicial
Review Procedure Act
supplements the rules by including a requirement that
a judicial review application set out the ground for review.

[17]

Form 66 specifies that the first part of a petition must set out the
orders that are being sought. In Ms. Al-Islams petitions, she seeks to
have the arbitrators orders set aside. She also, however, seeks an injunction
against the landlord, requiring it to provide her with a ratification of the
asserted authority of AWM, and with insurance documents. Such injunctive relief
is not available under the
Judicial Review Procedure Act
, and should not
have been included in the petition.

[18]

The second part of a petition is required to set out the factual basis
for the application. In the petitions originally filed on behalf of Ms. Al-Islam,
she simply said Please see petition record. It will be served prior to the
hearing. This kind of
pro forma
statement does not conform to the
rules, and is improper.

[19]

The third part of a petition must set out the legal basis for the application.
It is in this part, as well, that a party normally sets out the grounds for
judicial review, as required by the
Judicial Review Procedure Act
. Again,
the filed petitions simply said Please see petition record. It will be served
prior to the hearing. Again, this is a serious deficiency in the petition.

[20]

The fourth part of a petition must advise of the materials to be relied
on at the hearing of the petition. Again, the petitioner simply said Please
see petition record. It will be served prior to the hearing. That, too was not
compliant with the rules and was unsatisfactory.

The Proceedings Before the
Chambers Judge

[21]

On June 14, the respondents filed notices of application, seeking to
have the petitions struck under Rule 9-5. As the petitions failed to set out
basic grounds for judicial review and included neither the facts nor legal
bases for the relief sought, this was an entirely reasonable action to take.

[22]

Unfortunately, the respondents also sought alternative relief, under
Rule 9-6, seeking summary judgment on the petitions. Rule 9-6 is a rule that
applies only to an action, which is defined in Rule 1-1(1) as a proceeding
started by a notice of civil claim. It is not applicable to a proceeding
commenced by petition. This restriction is sensible. The petition procedure is
itself a summary one, and it would be inefficient to allow an additional summary
procedure to be engrafted onto the process.

[23]

The application to strike the petitions came on for hearing in chambers
on June 28, 2017. The judge had, before him, the petitions, the responses, the
applications to strike, and a number of affidavits, some of which simply
attached exhibits that were before the arbitrator. The documentation was
difficult to follow.

[24]

It is evident that the judge had the opportunity to read some, but not
all of the materials. It is equally clear that he misapprehended the nature of
the application in front of him. He thought he was hearing the judicial review
petitions. Accordingly, he asked Mr. Rafique to go first, and to summarize
the case.

[25]

Mr. Rafique intended to ask for an adjournment, as he wished to
file an amended petition in at least one of the proceedings. He had tried to do
so that day, but the registry rejected the document because its formatting did
not meet the requirements of the rules. Mr. Rafique also wished more time
to respond to the application. He did not articulate his intentions clearly,
however. Instead of dealing with his request for an adjournment, the judge
pressed him for details about the case. Eventually, the judge called on the
respondents.

[26]

Unfortunately, counsel for the respondent at the hearing (who is not
counsel before us) did not, initially, correct the judges misimpression as to
the nature of the proceedings. Instead, he commenced his argument by discussing
the evidence on the judicial review application, and advising the judge that Mr. Rafique
had gotten certain facts wrong. Eventually, however, he mentioned that the
application was to dismiss the petitions under Rule 9-5 or 9-6.

[27]

The judge intervened, cutting the argument short, and proceeded to give
his decision, which was brief:

Youre both being very silly. Im
going to grant the judicial review, set aside the order, and Im going to
require you, sir, to make your cheques for your moms rent payable [to the
management company]. And assuming that you pay your rent you will not be
evicted  your mother will not be evicted until such time as they choose to
evict you for a valid reason

[28]

After the hearing, Mr. Rafique filed an amended petition in the
proceeding seeking to strike the order of Arbitrator Plenart. He did not amend
the petition in the other proceeding. The amended petition is over thirty pages
long. It is a rambling document. A careful and patient reading of the amended document
discloses that it contains sufficient detail to meet the requirements of the
Judicial
Review Procedure Act
and of Form 66. It also, however, contains a very
large amount of material that is entirely irrelevant. It includes arguments and
opinions and violates the principles of judicial review by including a wealth
of material that was neither before the tribunal nor casts light on how the
tribunal dealt with the matters before it. To be an adequate petition, it
requires severe and diligent editing.

The Appeal

[29]

On the appeal, the appellants ask that the judges order be set aside,
and that their applications be remitted to the Supreme Court; to his credit, at
this hearing, Mr. Georgetti, who I understand was not counsel who drafted
the notice of appeal or factum, has been more flexible in terms of the relief
he is seeking.

[30]

It is clear that the judges order cannot stand. The judge
misapprehended the nature of the application in front of him. He was not hearing
the petitions, and so could not grant the petitioner the relief sought in the
petitions. He also failed to hear full argument from the parties.

[31]

I am unable, however, to agree that the applications to strike the
petition should be remitted to the Supreme Court. Such a course of action would
be a waste of time and resources. The issues on the motion to strike are
straightforward and ought to be finally dealt with expeditiously. This Court
can do so.

[32]

The petitions are, as I have indicated, woefully inadequate. The amended
petition that the respondent filed, however, while needing drastic editing, is
a document that is capable of being amended to serve as a proper petition. In
the circumstances, I would not strike the proceedings, but rather give the petitioner
an opportunity to amend the petitions to comply with the rules.

[33]

I would strike out the paragraph in Part 1 of each petition that seeks
injunctive relief against the companies, as that relief is unavailable in a
judicial review proceeding, and cannot be sought by petition.

[34]

Part 2 of the petitions must include the material facts on which the
petition is based. These should stick carefully to the matters that were heard
before the arbitrators and to any procedural defects alleged in respect of the
arbitration hearings. They must not contain extraneous and irrelevant material.
Part 2 should not recite all of the evidence  rather, it should set out those
basic facts that are material to the issues on judicial review. I would think
that the factual basis for the petition in respect of the first arbitration
could be set out in less than a dozen paragraphs, as the facts are not overly complex.
The facts in respect of the second arbitration are even more concise, and it is
likely that not more than two or three paragraphs would be necessary.

[35]

Part 3 of the petitions should set out the basic grounds for judicial review,
and the legal bases for them. What it must do is outline of the legal basis for
the argument and describe the grounds. It should not, itself, be a lengthy
legal memo. It appears to me that the legal arguments, as I understand them,
could be set out in four or five paragraphs in the petition dealing with the
first arbitration. Again, the petition dealing with the second arbitration
award will be even more concise.

[36]

Part 4 of the petitions should set out the affidavits to be relied upon,
which must be served with the amended petitions, unless they have been already
been served. Part 4 should only list affidavits that contain admissible
evidence.

[37]

This matter should not be allowed to linger unnecessarily. The
petitioner must file amended petitions complying with the rules in the Supreme
Court by February 20, 2019, failing which the respondents may renew their
application to strike the petitions under Rule 9-5 in Supreme Court chambers.
The respondents, of course, including the Director, will have the opportunity
to file amended responses to the amended petitions.

[38]

Once the appropriate petitions and responses have been filed, the
parties may set the petitions down for hearing in the Supreme Court.

[39]

I would add that, while this appeal must be allowed, I would not
distance myself from the judges view that a basic problem in this matter is
that there is an unnecessary and unfortunate failure on the part of the respondent
to accept that the management company is entitled to collect rent on behalf of
the landlord. Mr. Rafique must abandon his stubborn refusal to recognize
AWM as the lawful representative of the landlord. His arguments to the effect
that he needs further evidence of AWMs authority border on obtuse. Assuming
that Mr. Rafique agrees to pay his rent and does so on time, it may well
be that the resolution proposed by the chambers judge would be a reasonable one
to reach voluntarily, whether or not it is one that might ultimately be ordered
by a court.

Disposition

[40]

The formal orders of the chambers judge as settled by the Registrar and
confirmed by Watchuk J. on appeal from the Registrar are as follows:

1.         The Respondents' application to strike the whole of
the Petitioners claim and pronouncing judgment dismissing the Petitioners
claim is dismissed.

2.         The Respondents' application for the granting of
an Order, in the alternative, pronouncing summary judgment dismissing the
Petitioners claim is dismissed.

3.         The Respondents' application for special costs or,
in the alternative, ordinary costs is dismissed.

4.         A Judicial Review is granted and concluded within
this proceeding.

5.         The Order of Mr. Plenert, the arbitrator is
set aside.

6.         The Petitioner's mother's cheques are to be
payable to whoever is directed to be payable to by AWM Alliance Real Estate
Group Ltd.

7.         The Respondents'
counsel is to draft the Order.

[41]

I would surmise that the reference to Mr. Plenert should have
been a reference to Mr. Kaila in the second proceeding. This slip,
however, is entirely inconsequential given the disposition this court is
making. I note that paragraph 7 of the orders could probably have been omitted,
since the orders were, in fact, settled by the Registrar.

[42]

I would strike out paragraphs 4, 5 and 7 of the orders. In each order, paragraph
6 will be renumbered as paragraph 4, and the wording will be corrected. I would
also add orders, so that the paragraphs following paragraph 3 of each order
will be as follows:

4.         The Petitioners rent cheques are to be made
payable as directed by AWM Alliance Real Estate Group Ltd.

5.         Paragraph 1.2 of the petition is struck.

6.         The petitioner is granted leave to amend Parts 2,
3 and 4 of the Petition to comply with the requirements of Form 66 and the
Judicial
Review Procedure Act
. The petitioner must file the amended petition on or
before February 20, 2019.

7.         The respondents may file amended responses to the
amended petition filed under paragraph 6 of this order.

8.         If the petitioner does
not file an amended petition substantially complying with Form 66 and the
Judicial
Review Procedure Act
in accordance with paragraph 6 of this order, the
respondents may renew their application to strike the petition under Rule 9-5
of the
Supreme Court Civil Rules
.

[43]

I would not award either side their costs on this appeal, as neither has
been substantially successful.

[44]

I would dispense with approval as to form of the order of this Court on
behalf of Ms. Al-Islam. Mr. Rafique has not acted responsibly in the
past in this regard, and I have no confidence that he will do so in respect of
this appeal.

[45]

FITCH J.A.
: I agree.

[46]

HUNTER J.A.
: I agree.

[47]

GROBERMAN J.A
.: The appeal is allowed and the order of the
chambers judge is modified as stated in these reasons.

The
Honourable Mr. Justice Groberman


