Hollyburn 3, tenants 1

A fourth group of tenants of 1461 Harwood St in the West End has suffered a setback their bid to stay in their homes after the Residential Tenancy Office (RTO) upheld landlord Hollyburn Properties’ contention that they should be evicted to make way for renovations that are already underway.

Fourth-floor Bay Towers tenant Aerlyn Weissman and her third-floor neighbours, Kevin Knox and Trent McLaughlin, learned of the decision in a Feb 22 letter and are appealing the ruling to the BC Supreme Court.

A judicial review of their case is scheduled for Apr 16. If they had not secured the review, Weissman, Knox and McLaughlin would have been forced from their suites by Mar 31.

The decision makes the score Hollyburn three, Bay Towers tenants one in the now year-long dispute at the RTO level.

Meanwhile, on Feb 26, the BC Supreme Court found in favour of another group of tenants from the same building. In that ruling, Berry and Kloet vs Hollyburn Properties, justice Paul Williamson wrote that the Residential Tenancy Act does not stipulate a minimum time requirement for vacant possession. If tenants are willing to move out for a period of time to accommodate renovations, he continued, there is no need to evict them. Williamson also ruled that the spirit of the Residential Tenancy Act provides for security of tenure and if any ambiguity exists tenants, as the vulnerable parties, should be favoured.

Hollyburn is appealing Williamson’s decision to the BC Court of Appeal; a process that could take months assuming the court agrees to hear the case at all.

In the wake of Williamson’s decision, and at Hollyburn’s request, the group fifth and sixth-floor tenants, who lost at the RTO Jan 16, agreed to adjourn their BC Supreme Court review, originally scheduled for Mar 2.

Hollyburn’s attorney, Stephen Mellows, says Hollyburn asked the tenants to adjourn because of the mixed decisions at the arbitration and judicial levels. Both sides agreed, says Mellows, to wait for the BC Court of Appeal to provide clarification on the vacant possession section of the Tenancy Act in the Berry and Kloet case.

“If the [Supreme] Court in [the Mar 2] case went ahead and followed the decision of Mr Justice Williamson, [the Mar 2 case] would be appealed as well,” says Mellows. “We would just have another lawsuit, so it made sense to everybody to put it on hold until there is some clarification from the Court of Appeal.”

But mere days after Hollyburn’s timeout request, the Court of Appeal handed 120 tenants of Richmond Gardens on Gilbert Rd a victory in their fight with landlord Amacon Property Management Services. Two out of three judges ruled that tenants cannot be thrown out to make way for renovations unless vacant possession is proven necessary.

Mellows says that decision “muddies the water even more” and establishes a different test than what the Supreme Court provided in the Berry decision.

“We’ve had a number of different arbitrators and Supreme Court judges, and now the Court of Appeal saying somewhat different things about what [the vacant possession section in the Residential Tenancy Act] means,” he says. “So we need clarification from the Court of Appeal or drafters of legislation as to what exactly that means. Both tenants and landlords need to know. There needs to be some certainty in the law. I don’t think there is right now.”

Hollyburn also asked Weissman, Knox and McLaughlin to agree to an adjournment of their Supreme Court review, scheduled for Apr 16, but they chose not to adjourn.

Weissman says her instinct is to move forward at the Supreme Court in the hope of achieving another victory for Vancouver tenants on top of the Berry and Kloet, and Amacon decisions.

“I don’t see how waiting around for six months or more is going to make the environment for our decision any better,” she says. “Why not go for it now?”

“It makes sense to put the matter on hold, but they seem determined to proceed and have the matter heard,” says Mellows. “I can’t control that.”

Eighth-floor Bay Towers tenant Sarah Berry says Hollyburn is now feeling the pressure.

“A lot is stacked against them, so they feel [it’s best] for them to wait on the small chance that [Berry and Kloet] might be overturned,” she says. “But on the flip side, it’s good for us. We’re exhausted. It gives us eight to 10 months to get back to our lives for a bit.”

And in the wings, the first group of Bay Towers tenants that fought back awaits RTO rearbitration.

When asked if Hollyburn plans to ask for an adjournment on that matter as well, Mellows said he hasn’t discussed that with the tenants’ attorney, but reiterated that he didn’t think it made a lot of sense for them to proceed without higher court clarification.

The whole saga began last March when 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 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. Once the suites were renovated, Hollyburn would have been free to lease them to new tenants at higher rates.

That motivated Fuller/Stines and Isaak to contest what they call Hollyburn’s “eviction-by-renovation” tactic.

In subsequent months, groups of other tenants chose to fight back, too.

Weissman told Xtra West in February that it’s “unheard of” for so many arbitrations to come from a single building, but added that the RTO process is so “Byzantine and torturous,” that the average person cannot access it or would rather not try.