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A BC couple that was awarded $34,000 after they were evicted by their landlord may never see the money after a BC court sent the case back to the Residential Tenancy Branch.

The case involves Colin and Shirley Louw who rented the upstairs of a North Vancouver home from landlord Milad Hefzi.

The details, which are laid out in a June 16 BC Supreme Court decision, say that Hefzi didn't own the property, his parents did, and they lived on the main floor.

When Hefzi's father was diagnosed with cancer, they decided they wanted their upstairs tenants to move out so they could have full use of the home as other family members would come and care for Hefzi's father.

Under BC law, for a landlord to evict tenants they must intend to use the property themselves and stay in it for at least six months after the tenants have moved out. Landlords found breaking this rule can be liable to pay their tenants a year's worth of rent.

The decision says Hefzi gave the tenants the legally required two months' notice and they moved out.

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However, the Louw's then took Hefzi to the Residential Tenancy Branch arguing he hadn't moved in so therefore he owed them a year's rent.

And the Residential Tenancy Branch agreed, ordering Hefzi to pay his former tenants $34,180 in compensation.

He appealed the decision saying he did live there, but lost.

Hefzi then took the matter to the BC Supreme Court successfully arguing for a judicial review of the case.

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BC Supreme Court Justice Anita Chan ruled the Residential Tenancy Branch's decision was "patently unreasonable."

The Justice said the Residential Tenancy Branch "ignored relevant evidence and based the decision on irrelevant factors."

"The question ought not have been whether there was evidence that Mr. Hefzi had moved into the Property, but whether... the landlord or the landlord’s spouse (moved) into the property," she said.

The Justice ruled that Hefzi wasn't the landlord, his parents were.

"The arbitrator ought to have considered the evidence put forth by Mr. Hefzi that his parents, the landlords, had moved in to occupy the property. The arbitrator ought to have considered that evidence," the Justice said. "The evidence that the arbitrator was looking for – evidence that Mr. Hefzi had moved in – was irrelevant to the issue."

The Justice said that just because Hefzi had signed the eviction notice that didn't make him the landlord.

"With respect, the arbitrator confused the issue of who can sign (the eviction) notice, and who has to occupy the rental unit after the tenants have vacated. In my view, an agent for the landlord can sign the... notice. However, (the law) makes clear that it must be the landlord who must occupy the unit after the tenants have vacated."

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The Justice ruled the Residential Tenancy Board's decision was "openly, clearly, evidently unreasonable."

The court then overturned the Louw's $34,000 payout and sent the case back to the Residential Tenancy Branch for it to decide on the matter again.

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