BC Court of Appeal awards Habitat for Humanity costs in occupancy case

After setting aside the British Columbia Supreme Court’s decision staying Habitat for Humanity Victoria’s petition for vacant possession against an occupant, the British Columbia Court of Appeal awarded the charity costs in the appeal and in the court below. 

Habitat, the appellant in this case, was a registered charitable organization. Through a homeownership program, Habitat constructed and offered affordable housing at below-market cost to eligible working families who would not qualify for mortgages from the usual lending institutions. 

In April 2020, the program accepted the respondent, with the following conditions: 

• volunteering for 500 hours, in collaboration with Habitat 
• living in need 
• qualifying for a retail mortgage with Habitat’s lending partner 
• making monthly payments fixed at 30 percent of the family’s gross household income 

Early occupancy agreement

Under an early occupancy agreement (EOA), the respondent gained early occupancy of a recently built home in November 2020, before she had met all the program requirements. The EOA terms included: 

• monthly payments, a portion of which would serve as a non-refundable deposit against the property purchase 
• a requirement to vacate the house upon a failure to complete the program requirements by the expiry date of May 23, 2022 
• an acknowledgement that the EOA did not intend to create a tenancy under BC’s Residential Tenancy Act, 2002 (RTA) 

Despite Habitat’s accommodation and extension of the expiry date to May 23, 2024, the respondent ultimately could not remain financially eligible under the program. 

Habitat provided 30 days’ notice to vacate the property, eventually extended to Aug. 30, 2024. However, the respondent did not vacate. Habitat thus petitioned for vacant occupancy. 

Arbitrator’s decision

Before the Residential Tenancy Branch (RTB), the respondent brought an application alleging that her occupancy was a tenancy under the RTA.

An RTB arbitrator determined that the RTA did not apply because the parties did not mean for the respondent to rent the home, and that the RTB thus lacked jurisdiction to hear and determine her application. 

British Columbia Supreme Court sets aside arbitral ruling

On judicial review, a judge of the Supreme Court of British Columbia set aside the arbitral decision for being patently unreasonable, remitted the matter to the RTB for a redetermination, and stayed Habitat’s vacant occupancy petition. Habitat appealed. 

BC Court of Appeal restores arbitral decision

On Jan. 12, in Habitat for Humanity v. Booth, 2026 BCCA 8, the BC Court of Appeal allowed the appeal, set aside the reviewing judge’s ruling staying Habitat’s vacant possession petition, and reinstated the RTB arbitrator’s decision. 

According to the appeal court, the judge conducted a disguised correctness review and erred in applying the review standard for patent unreasonableness. 

Upon reading the arbitrator’s reasons, the appeal court ruled that the arbitrator carefully considered the parties’ intention in executing the agreements for the respondent’s occupancy. The appeal court did not deem the arbitral ruling “irrational” or “evidently not in accordance with reason.” 

Habitat for Humanity’s entitlement to costs

Given its success on appeal, Habitat asked for its appeal costs and its costs in the court below. The respondent countered that the parties should bear their own costs in the circumstances. 

In supplementary reasons released on Sept. 4, in Habitat for Humanity v. Booth, 2026 BCCA 368, the BC Court of Appeal granted Habitat’s application and confirmed Habitat’s entitlement to its requested costs. 

BC Court of Appeal follows usual cost rule

The BC Court of Appeal did not see enough basis to depart from the usual rule under s. 44 of BC’s Court of Appeal Act, 2002, which entitled successful parties to their costs. 

The appeal court acknowledged that Habitat failed to respond to the respondent’s argument that they had mutually contemplated the jurisdictional issue. However, the appeal court noted that: 

• The arbitrator found that neither party had assumed that the RTA would apply to their agreement 
• The respondent opted to bring RTB proceedings that would impact Habitat’s operations 
• The issue’s importance to Habitat’s institutional interests did not warrant deviating from the general rule on costs, given that many appeals aimed to safeguard an appellant’s broader interests 

The appeal court accepted that a costs order against the respondent at both court levels would be a financial burden on her. However, given the well-known cost rules and their well-established purposes, the appeal court did not consider the costs order an unfair financial penalty. 

British Columbia Court of Appeal’s prior arbitration cases

Here are some other recent BC Court of Appeal decisions involving arbitration. 

On Jan. 30, the appeal court ruled that an arbitrator erred by conflating the distinct tests for “extenuating circumstances” and “exceptional circumstances” in her analysis of whether the landlord timely occupied a rental unit the tenant had to vacate. 

In a union’s grievances challenging consolidations introduced by TELUS Communications Inc., the appeal court issued a Jan. 13 decision dismissing an appeal challenging the BC Supreme Court’s jurisdiction to grant interim injunctive relief before an arbitrator was in place. 

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