Vancouver, BC (Unceded Coast Salish Territories) – On Friday, January 5, 2024, the BC Court of Appeal (“BCCA”) released its decision in McNeil v. Elizabeth Fry Society of Greater Vancouver, 2024 BCCA 2, dismissing the appeal. Although a disappointing outcome for the appellant, Nicole McNeil, the BC Civil Liberties Association (BCCLA) welcomes the Court’s acknowledgement that there is a need for greater clarity around the “temporary accommodation” criterion in the Residential Tenancy Act (RTA) regarding what constitutes “transitional housing.”

In this case, Ms. McNeil was a resident of Mazarine Lodge (the “Lodge”), a social housing facility operated by the respondent, Elizabeth Fry Society of Greater Vancouver. When Ms. McNeil complained to the Residential Tenancy Branch (“RTB”) about an imposed guest ban, the Arbitrator found that the RTB did not have jurisdiction because the Lodge provides “transitional housing,” which is exempt from the RTA under section 4(f). Upon judicial review of the decision, the BC Supreme Court held that the Arbitrator’s assessment of the circumstances under the current state of the law was not patently unreasonable and the BCCA agreed.

The BCCLA intervened in this case alongside PIVOT and Our Homes Can’t Wait (OHCW) to support an interpretation of the RTA that best protects vulnerable residents. The BCCLA’s submissions impressed upon the Court the need for greater clarity in how the RTA is interpreted and applied, emphasizing that inconsistent interpretations of what makes housing “temporary” fail to accomplish the RTA’s purpose of protecting individuals from losing their housing. While dismissing the appeal, the Court agreed with the BCCLA that the RTB’s decisions on whether housing is “temporary” are unworkably inconsistent, meaning renters in social housing are frequently unable to determine if their leases are covered by the RTA. The Court took up the BCCLA’s call for clarity and invited the RTB to address the inconsistencies in the law.

We are pleased that the Court was receptive to our argument about the law being unworkably uncertain and support its invitation to the RTB to address interpretive inconsistencies and provide clearer guidance on the factors to be considered in determining whether housing is temporary. To that end, the BCCLA strongly encourages the RTB to consult with those who are made most vulnerable by this ambiguity.

The BCCLA is grateful to Julia Riddle of Arvay Finlay LLP and Claire Kanigan of Kanigan Law for their astute and compassionate representation.

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