Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

IN THE SUPREME COURT OF BRITISH COLUMBIA 

Citation: Young v. Saanich Police 

Department, et al, 

2003 BCSC 926 

Between: 

And: 

Eric Young and Marlene Young 

Date: 20030613 

Docket: 02/5145 

Registry: Victoria 

Petitioners 

2003 BCSC 926 (CanLII) 

The Saanich Police Department 

and The Capital Regional District 

- and - 

Respondents 

Docket: 02/4528 

Registry: Victoria 

Between: 

And: 

Eric Young and Marlene Young 

Petitioners 

The Capital Region Housing Corporation 

Respondent 

Before: The Honourable Mr. Justice Macaulay 

Reasons for Judgment 

Counsel for the Petitioners: 

Counsel for all Respondents 

in both proceedings: 

Date and Place of Hearing: 

Eric Young and 

Marlene Young in Person 

A. Borzoni and M. Anderson 

20030218-20030221 and 

20030408-20030410 

Victoria, B.C.

Young v. Saanich Police Department, et al Page 2 

Introduction 

[1] Mr. Young suffers from multiple sclerosis. Mr. and 

Mrs. Young are legally exempted from the application of 

certain provisions of the Controlled Drugs and Substances Act, 

S.C. 1996, c. 19 (the "CDSA") to permit them to grow marihuana 

so that Mr. Young may use it for the treatment of his medical 

condition. The Youngs have brought two separate petitions 


before this court. They brought their first petition against 

the Saanich police (the "SPD") and the Capital Regional 

District (the "CRD") seeking constitutional remedies for 

alleged Charter breaches interfering with their right to grow 

and use marihuana ("Action 02/5145"). The petitioners contend 

that the breaches culminated in an improper attempt by their 

landlord to evict them from their rental unit in a social 

housing project solely because they grew, and Mr. Young used, 

marihuana. 

[2] The landlord is the Capital Region Housing Corporation 

(the "CRHC"), rather than the CRD, although the two entities 

are connected. The CRHC is a private company incorporated by 

the CRD as part of the latter's mandate to provide partially 

subsidized housing in the Capital Region. In August 2002, an 

arbitrator held that the landlord had established sufficient 

cause to terminate the tenancy because the smells associated


with the cultivation and use of marihuana were unreasonably 

disturbing and interfering with the lawful rights of other 

tenants contrary to the Residential Tenancy Act, R.S.B.C. 

1996, c. 406 (the "RTA"). 

[3] The landlord’s subsequent application to the Residential 

Tenancy Branch for an order of possession was adjourned 

pending the outcome of the second proceeding before me. If 


Mr. and Mrs. Young are unsuccessful in both Supreme Court 

proceedings, they will be required to move out of their home. 

[4] In October 2002, Mr. and Mrs. Young filed the second 

petition pursuant to the Judicial Review Procedure Act (the 

"JRPA") to challenge the arbitrator's findings under the RTA 

("Action 02/4528"). That proceeding is brought against the 

CRHC only. Although the petitioners raise a number of 

specific administrative law issues in that proceeding, I am 

not persuaded that there is any merit to those complaints. 

Instead, in my view, the only viable means of attack on the 

eviction would require a positive finding on the Charter 

claims raised in Action 02/5145. Such a finding might remove 

the necessary underpinnings for the exercise of statutory 

jurisdiction by the arbitrator, at the behest of the CRHC, 

provided that the landlord is itself a state actor subject to 

Charter scrutiny.


Summary of Findings 

[5] Both petitions were heard at the same time. Because the 

issues arise, for the most part, out of common facts and are 

connected as described immediately above, I am issuing my 

reasons jointly. I have concluded that the petitioners have 

failed to make out any of the Charter breaches as alleged in 

Action 02/5145. This conclusion is also significant for 


Action 02/4528. Even if the CRHC is a state actor engaged in 

state conduct, the Charter issues raised against it would be 

identical to those raised against the CRD. Absent Mr. and 

Mrs. Young establishing some other basis for judicial review 

of the arbitrator’s decision under the RTA, and I find none, 

the second proceeding must also be dismissed. Accordingly, 

both proceedings are dismissed. 

[6] For convenience, my reasons are organized under the 

following headings and paragraph references: 

HEADINGS 

PARAGRAPH NUMBERS 

Introduction paras. 1-4 

Summary of Findings paras. 5-6 

Medical Exemptions paras. 7-12 

The Housing Complex paras. 13-14 

Marihuana Use in the Building para. 15


Difficulties with the Neighbours paras. 16-25 

The Signs paras. 26-27 

The Complaints paras. 28-33 

The Inspection paras. 34-37 

The Notice of Eviction paras. 38-39 

The Hearing Before 

Arbitrator Gilbert 

paras. 40-41 

The Review Application paras. 42-45 

The Human Rights Complaint paras. 46-53 


The Police paras. 54-58 

The Petitioners' Complaints 

about the Police 

paras. 59-63 

Charter Issues paras. 64-73 

CRHC as a Government Actor paras. 74-77 

The Assumptions para. 78 

Section 15: Issues paras. 79-81 

The "Zero-Tolerance" Policy paras. 82-96 

Absence of a Policy paras. 97-99 


SPD paras. 102-106 

CHRC paras. 107-111 


CHRC paras. 116-117 

Liberty para. 118 

Security of the Person paras. 119-125


Principles of Fundamental Justice paras. 126-131 

Issues on Judicial Review paras. 132-135 

Standards of Review paras. 136-139 

Reasonable Apprehension of Bias paras. 140-143 

The Adjournment Applications paras. 144-150 

Wrongful Denial of Attendance 

at the Hearing by a Member 

of the Public 

para. 151 

The Refusal to Exclude Ms. Jaarsma para. 152 


The Alleged Refusal to Visit the 

Complex to Determine Whether the 

Smell of Marihuana was Present 

Review of the Arbitrator's 

Findings of Fact 

Residential Tenancy Act and 

Residential Tenancy Office 

Arbitration Rules of Procedure 

paras. 153-157 

paras. 158-162 

APPENDIX A 

Medical Exemptions 

[7] In February 1996, Mr. Young was diagnosed with multiple 

sclerosis. Mr. Young has since found marihuana to be an 

effective medication for alleviating the symptoms of his 

condition. Many of the medications otherwise available to Mr. 

Young have serious health-related side effects that he wishes 

to avoid. 

[8] In June 1999, Mr. Young obtained a medical prescription 

for marihuana for the treatment of his condition. He


subsequently applied to the Minister of Health for an 

exemption permitting him lawful access to marihuana for 

medicinal purposes. 

[9] On March 10, 2000, Health Canada advised Mr. Young by 

letter that his application had been favourably reviewed. 

Pursuant to s. 56 of the CDSA, the Minister of Health granted 

Mr. Young an exemption from the application of various 


provisions of the CDSA. Mr. Young was thereby permitted to 

lawfully possess and produce marihuana subject to certain 

restrictions, including conditions that the marihuana be used 

solely for personal use in the treatment of his medical 

condition and that he not allow any other person to use his 

supply of marihuana. 

[10] The letter stated that the exemption would expire on 

September 11, 2000, subject to renewal. The letter also 

contained the following paragraph: 

Further to your consent (see form attached), your 

name, date of birth and details of this exemption 

will be provided to police agencies in order to 

limit the risk that you may be inadvertently 

arrested or charged by the police. You should also 

carry this exemption with you whenever you are in 

physical possession of the controlled substance, to 

show that you have received an exemption from the 

Minister of Health.


Mr. Young has never provided his consent to the Minister 

regarding the release of the above-mentioned information to 

police agencies. 

[11] Mr. Young’s exemption was renewed from time to time 

pursuant to s. 56 and remained in effect at all material 

times. Specifically, the exemption was renewed on the 

following dates: September 1, 2000; March 5, 2001; 


December 12, 2001; March 12, 2002; September 5, 2002 and 

October 4, 2002. 

[12] On December 12, 2001, the Minister of Health granted a 

similar exemption to Mrs. Young, permitting her to possess and 

produce marihuana for the sole purpose of assisting Mr. Young 

with the treatment of his medical condition. Mrs. Young’s 

exemption has also been renewed from time to time and has been 

in effect at all material times. 

The Housing Complex 

[13] The petitioners reside in a complex known as Beechwood 

Park. The CRHC owns and manages the complex, which consists 

of townhouses and a three story apartment building. Some, but 

not all, of the units are subsidized.


[14] The petitioners moved into a two-bedroom first floor 

suite in the apartment building at the beginning of September 

2001. They pay market rent. 

Marihuana Use in the Building 

[15] Mr. Young has smoked marihuana in his suite or on his 

patio on a regular basis since the commencement of the 

tenancy. He deposed that he smokes the equivalent of 1/4 of a 


tobacco cigarette every two to three hours or 1 1/2 tobacco 

cigarettes per day. He further deposed that he and his wife 

take steps to minimize the marihuana smoke in their suite by 

opening windows and using fans and an air purifier. He also 

maintains that the building is designed with pressurized 

hallways that create an airflow from the hallway into the 

suites for the purpose of minimizing smoke in the hallway in 

the event of a fire. 

Difficulties with the Neighbours 

[16] The petitioners' difficulties with their fellow tenants 

began on October 7, 2001, with the receipt of an anonymous 

letter in their mailbox. The handwritten letter read as 

follows:


To our Neighbours, 

We are concerned about the strong odour that is 

flowing into the hallway & other suites on the first 

floor. This is a family building with children 

living here with asthma & allergies. Please be 

aware of this by being more discreet & courteous to 

the children & parents that share this home, & our 

guests that visit. 

Some quick resolutions to this are smoking in 

your yard, opening the patio door and windows, and 

by placing a towel under your front door when 

smoking. 


Thank you! 

[17] On October 9, 2001, Mr. Young responded by posting the 

following handwritten message by the mailboxes: 

To the Hateful person who left the unsigned nasty 

note in our mailbox. 

Quick Resolution: open your window & stick a towel 

under your door everytime (sic) you smell anything. 

Thanks! 

from 106 

Isn’t there enough hate in the world?? Stop 

Promoting Hate!! [emphasis original] 

That same day, Mr. Young contacted the CRHC to discuss the 

anonymous letter and to advise the corporation of his 

medicinal use of marihuana. To that point, the CRHC had not 

received any complaints regarding Mr. Young's marihuana use. 

[18] On October 18, 2001, a meeting took place between the 

petitioners and two representatives of the CRHC, Ms. Joy and


Ms. Webster. Mr. Young produced his exemption letter from 

Health Canada. They discussed the possibility of sealing the 

petitioners' door as well as the doors of other tenants. 

[19] The following day, the Beechwood Park caretaker, 

Mr. Weeks, attended at the petitioners' apartment to install 

weather stripping around their door. The petitioners sent the 

caretaker away, telling him that they would not permit him to 


install the weather stripping around their door until he first 

installed it around the door of the tenant who had been 

complaining about the odour. The caretaker did subsequently 

install either a door sweep or weather stripping on the door 

of one tenant, Ms. Belson. 

[20] Following the visit of the caretaker, the petitioners 

sent a letter to Ms. Joy of the CRHC, asking her to take 

action with regard to the "disturbing behaviour of [their] 

neighbours." Mr. Young also posted a note on the outside of 

the door to his suite advising fellow tenants of his medical 

condition and his exemption from Health Canada. 

[21] On October 20, 2001, an anonymous typed letter was placed 

under the doors of the Beechwood Park suites, with the 

exception of the petitioners' suite. The letter referred to 

the "disgusting odor of marijuana that permeates through the 

first floor and in most cases into our suites themselves."


The author identified himself as a concerned father and urged 

the other tenants to contact the CRHC to express their 

concerns over the marihuana smell. 

[22] On October 22, 2001, the petitioners wrote another letter 

to Ms. Joy of the CRHC. In the letter, they explained the 

steps that they were taking to minimize marihuana smoke in the 

building and complained about the CRHC's failure to take 


action. The petitioners stated that they would not permit 

their door to be weather stripped, as they felt that this 

would decrease the ventilation in their suite. They concluded 

their letter by demanding, amongst other things, that the CRHC 

educate all residents of the complex on the medicinal use of 

marihuana, increase the security of their suite, compensate 

them for the cost of their air purification system and stop 

visits from the caretaker without a fixed appointment. 

[23] That evening, the petitioners received another anonymous 

handwritten note in their mailbox. It complained that the 

odour of marihuana emanating from the petitioners' suite was 

constant and intolerable. The author asked that Mr. Young 

either smoke on his patio or find an alternate medication. 

[24] The petitioners responded by sending a further letter to 

Ms. Joy of the CRHC on October 23, 2001, asking her to take 

action to stop the complaints which, in the petitioners'


words, were "causing [them] extreme upset in [their] lives and 

destroying the peace and quiet enjoyment of [their] 

apartment." 

[25] Further conversations took place between Mr. Young and 

Ms. Joy in the days that followed. On October 26, 2001, 

Mr. Young retained counsel who sent a letter to the CRHC, 

reiterating the petitioners' concerns. 


The Signs 

[26] One point of contention between the petitioners and the 

CRHC concerned signs that the Youngs were displaying in their 

suite. The first sign, which the petitioners posted in their 

window, depicted a marihuana leaf and contained the words, 

"Liberate Medicinal Marijuana." The Youngs removed this sign 

some time in November after being advised by the CRHC that the 

posting of signs on windows was contrary to the terms of their 

tenancy agreement. 

[27] In early January, the petitioners erected a second sign 

on an easel in their living room. The sign contained the 

words "Marijuana is Medicine", written in lights, and was 

visible through the petitioners' window. When the petitioners 

did not comply with a written request to remove this sign, the 

CRHC served them with an eviction notice. The CRHC later


withdrew the notice after the Youngs agreed to take down the 

sign. 

The Complaints 

[28] Beginning on October 19, 2001, and throughout the months 

that followed, the CRHC received numerous complaints from 

other tenants of Beechwood Park. The complaining tenants 

included Mr. Goorevitch, Ms. Belson, Ms. Mercy, Ms. Lort, 


Ms. Rimek, Ms. Pretty, Mr. and Mrs. Segato and Ms. Beith. The 

complaints related to the odour of marihuana, the impact on 

the tenants' health and on their visitors, the signs in the 

petitioners' apartment, allegations that the petitioners had 

given the tenants' names to news media who were requesting 

interviews, and behaviour by the petitioners perceived by the 

other tenants as harassment. 

[29] The CRHC also received numerous requests from Beechwood 

Park residents that they be transferred out of the apartment 

building. The first of these requests came from Ms. Rimek in 

October 2001. On December 24, 2001, Mr. Goorevitch gave the 

CRHC notice that he would be terminating his tenancy at 

Beechwood Park effective January 31, 2002, because his ex-wife 

would not permit their son to spend the night at his apartment 

due to the smell of marihuana.


[30] Ms. Belson contacted the CRHC on January 7, 2002, and 

requested an immediate transfer out of the apartment building. 

She advised the CRHC that she no longer felt comfortable at 

Beechwood Park, that she was feeling harassed by the 

petitioners and that she did not want her six year old 

daughter exposed to marihuana. She was also concerned about 

the message that the petitioners' marihuana signs were sending 

to children in the area. 


[31] On January 8, 2002, Ms. Lort requested a transfer out of 

Beechwood Park. She advised the CRHC that she no longer felt 

comfortable in the building and was afraid to go out onto her 

deck. She later reported that two young men had attended at 

her door hoping to purchase marihuana, as they had seen the 

petitioners' sign. 

[32] On February 25, 2002, Ms. Pretty advised the CRHC that 

she wished to be transferred to a different suite in the 

apartment so as to be further away from the odour of marihuana 

emanating from the petitioners' suite. 

[33] Meanwhile, the petitioners continued to make complaints 

of their own regarding what they perceived as harassment from 

their neighbours and the police, as well as the lack of 

assistance from the CRHC. The evidence before me contains a 

continuous stream of correspondence from the petitioners or


their counsel to the CRHC, the police and various politicians 

and governmental bodies from October 2001 to November 2002. 

The Inspection 

[34] On January 24, 2002, Mr. Weeks attended at the 

petitioners' residence to perform an annual inspection of 

their suite. The petitioners requested that Mr. Weeks not 

inspect their bedrooms, the area in their suite in which they 


grow their marihuana. Mr. Weeks complied with this request. 

[35] On February 28, 2002, Ms. Jaarsma of the CRHC wrote to 

the petitioners and advised them that the Corporation 

continued to receive complaints from other tenants about the 

strong odour of marihuana emanating from their suite. 

Ms. Jaarsma also expressed concerns that the petitioners' 

marihuana cultivation might be exposing the building to excess 

moisture and other damage. The letter stated as follows: 

... We request that you provide us with information 

showing what measures you have previously 

implemented and will implement now to minimize the 

impact of growing marijuana in your suite. We are 

particularly concerned about the noxious smell and 

excess moisture. 

Finally, I understand that you refused to permit 

David Weeks [to] inspect all of your premises during 

the Corporation’s annual inspection. This letter 

will serve as formal notice that you are required to 

allow representatives of the Housing Corporation 

[to] inspect the area where you grow your marijuana.


We have scheduled this inspection for Tuesday, 

March 12, 2002 at 10:00 a.m. 

[36] On March 8, 2002, the petitioners sent a letter to the 

CRHC, stating that they had no obligation to provide the 

information demanded in the letter of February 28, 2002. That 

day, Steve Kopnyitzky, a property inspector for the CRHC, 

posted on the petitioners' door a "notice of entry" to gain 

access to the uninspected portions of their suite on March 12, 


2002, at 10:00 a.m. When Ms. Joy and Mr. Kopnyitzky attended 

on that date, the petitioners refused them entry to their 

suite. 

[37] The CRHC then applied to the Residential Tenancy Branch 

for a hearing to obtain an order granting the CRHC access to 

the petitioners' suite for the purpose of completing the 

annual inspection. A hearing was held on May 16, 2002, before 

Arbitrator Knott, who found in favour of the CRHC on May 25, 

2002. Arbitrator Knott accepted the CRHC’s contention that 

completion of the annual inspection had nothing to do with the 

marihuana issue. The arbitrator held that entry for the 

purpose of conducting an annual inspection was for a 

"reasonable purpose", as permitted in the RTA. The 

petitioners have since sought judicial review of that decision


in the Supreme Court of British Columbia. That matter has not 

yet been set down for hearing. 

The Notice of Eviction 

[38] On April 18, 2002, Ms. Jaarsma sent a final warning 

letter to the petitioners, alleging that the odour of 

marihuana emanating from their suite amounted to a breach of 

Article 13 of their tenancy agreement in that it disturbed, 


harassed or annoyed other tenants. Ms. Jaarsma requested that 

the petitioners take immediate action to remedy this breach or 

face eviction. 

[39] On July 10, 2002, Ms. Joy delivered a Notice to Terminate 

Tenancy (the "Notice") to the petitioners. The reasons given 

for the termination read as follows: 

The tenants have failed to rectify a breach of 

Article #13 (Conduct) of the Tenancy Agreement after 

having received written notice to do so. Final 

warning letter was given on April 18, 2002. ... 

The conduct of the tenants is such that the 

enjoyment of other occupants in the residential 

property is unreasonably disturbed. ... 

Other residents and their guests continue to have 

their enjoyment disturbed due to the noxious smell 

of marijuana coming from Mr. and Mrs. Young's suite 

into the common hallway, and the suites and patio 

areas of the other residents. Tenants are 

complaining of the overwhelming odor and their 

concerns regarding health issues, impact on 

children, impact on visitors to the building, child


custody issues, quality of life, security issues, 

etc. 

The landlord has concerns regarding the possible 

impact on the building due to marijuana cultivation 

in Mr. and Mrs. Young's suite. Mr. and Mrs. Young 

have refused to implement a remedy or advise how 

they intend to minimize the impact of growing 

marihuana in their suite. 

The Landlord has suffered damages due to another 

tenant vacating the premises due to these concerns. 

Two other tenants have transferred to locations 

operated by the Landlord in order to escape from the 

concerns listed above. The landlord has two other 

tenants currently waiting for transfers. 


On July 16, 2002, the petitioners filed an application for 

arbitration under the RTA requesting an order setting aside 

the Notice. 

The Hearing Before Arbitrator Gilbert 

[40] The hearing before Arbitrator Gilbert took place on 

July 31, 2002, August 15, 2002 and August 26, 2002. Mr. and 

Mrs. Young were present on July 31, 2002 only. Their counsel, 

Mr. Duhaime, was present throughout. Appearing for the CRHC 

were Ms. Joy, Ms. Jaarsma and counsel for the CRHC, 

Mr. Borzoni. During the course of the hearing, Arbitrator 

Gilbert admitted evidence in the form of sworn viva voce 

testimony, affidavits and unsworn letters. 

[41] Arbitrator Gilbert issued written reasons on August 29, 

2002, in which he dismissed the petitioners' application to


set aside the Notice. I reproduce the more significant 

portions of the arbitrator’s findings of fact and analysis: 

From October 19, 2001 to July 22, 2002, the landlord 

received approximately 38 oral or written complaints 

from other occupants complaining about the odour of 

marihuana in their suites or in the hallway and 

about the alleged adverse effects of the marihuana 

on their health or in their lives generally. 

... Almost all of the witnesses who testified 

referred to the fact that they knew the tenant or 

the tenants were smoking marihuana in their suite 

and that the odour in the hallway or the stairwell 

or in their own suites resulted from that smoking of 

marihuana. Some witnesses testified that the tenant 

husband smoked marihuana either on his patio or at 

his patio. 


The tenants argue that as the hallway is 

pressurized, it is impossible to smell the marihuana 

from the tenants' suite. I disagree. It is common 

knowledge in almost every apartment building odours 

often escape from the suites into the hallway. 

Cooking odours are good [sic] example. Cigarette 

smoke is another example. I am satisfied that the 

witnesses including the landlord who visited the 

premises on several occasions, smelled marihuana 

smoke. 

Regarding the witnesses for the tenants who did not 

smell marihuana in the halls, I do not accept their 

evidence. In particular, I do not accept the 

evidence of persons who visited the building on one 

or two occasions as evidence regarding the presence 

of a smell. 

... In summary, there is no evidence that anyone 

suffered medical effects from the smell of 

marihuana. On the other hand, I accept the evidence 

of those persons who complain that the adverse 

effects of marihuana makes them feel ill or gives 

them headaches. I also accept the evidence of those 

persons who talk about how the smell of marihuana 

slows or frustrates their recovery from another more 

serious ailment. ... I accept the fact that many of


these complaints are based on the perception of the 

person smelling the marihuana and not necessarily a 

medical diagnosis. However, in my view, the 

feelings and sensibilities of the other occupants 

are important factors to consider as those feelings 

and sensibilities may be central to their enjoyment 

of their home. 

... Several of the complaining occupants have 

requested transfers from this building because of 

the smell of marihuana. One of the witnesses has 

moved and has bought a townhouse. He says he moved 

because he is a non-custodial parent and when his 

child came to visit him at the residential property, 

the child was exposed to the smell of marihuana. He 

was concerned that if the custodial parent found out 

that marihuana was being consumed in the residential 

property, his access to his child might be denied. 


The landlord testified that the landlord lost one 

month's rent when the occupant who bought a 

townhouse left and the landlord was unable to rent 

his suite for one month. 

The landlord alleges that the tenants have 

unreasonably disturbed other occupants contrary to 

section 36(1) of the Residential Tenancy Act. ... 

The real question is whether the smell of marihuana 

somehow entered the suites of the complaining 

occupants as they have testified because it is that 

type of disturbance that would almost certainly 

cross the line and be properly described as an 

unreasonable disturbance. 

... Did the tenants disturb other tenants? 

The answer is yes. Other occupants complained about 

being disturbed and about feeling they had lost 

enjoyment of their home. They complained about an 

odour that made them feel ill or gave them 

headaches. Other tenants were adamant that they had 

to move. One did move. In my view, the tenants did 

disturb other occupants. ... It is inconceivable 

that the tenant's right, indeed his need to smoke 

marihuana in order to treat his disease, could be 

used to defeat the rights of other occupants to 

peaceful enjoyment of their homes. As the tenants 

disturbed other occupants, they breached article 13


of the Tenancy Agreement and section 36(1)(h) of the 

Residential Tenancy Act. ... 

... I believe these witnesses when they say that 

they smelled marihuana in their hallway and in their 

suites. Based on the evidence of landlord [sic], I 

am satisfied ... that the tenants have unreasonably 

disturbed other occupants contrary to section 

36(1)(a) of the Act. 

... I am satisfied that the lawful right or interest 

of the landlord and other occupants have been 

seriously impaired by an act or omission of the 

tenants contrary to section 36(1)(f) of the 

Residential Tenancy Act. 


CONCLUSION 

The landlord has established sufficient cause for 

ending this tenancy in accordance with sections 

36(1)(a)(f) and (h) of the Residential Tenancy Act. 

For all of these reasons, the tenants' application 

to have the landlord's Notice set aside is 

dismissed. 

The Review Application 

[42] On September 3, 2002, the petitioners filed an 

application for review of Arbitrator Gilbert's decision, 

pursuant to s. 59(4) of the RTA. 

[43] The review application was heard by Arbitrator Katz on 

the basis of written submissions from counsel for the 

petitioners. The petitioners raised the following two grounds 

for review, as described by Arbitrator Katz: 

1. That the Tenants were unable to attend the 

hearing due to circumstances that could not be


anticipated and that were beyond his or her 

control; and 

2. That the Tenants' [sic] have new and relevant 

evidence which was not available at the time of 

the original hearing in that they could have 

given evidence personally if they had been 

present at the hearing. [emphasis original] 

[44] In written reasons dated October 4, 2002, Arbitrator Katz 

determined that the issue of the petitioners' absence during 

the hearing had been fully considered by Arbitrator Gilbert 


and that she had no basis for disturbing his findings in that 

regard. Arbitrator Katz concluded that the review was an 

attempt to re-argue the same matters raised at the hearing 

before Arbitrator Gilbert and that the petitioners had 

provided no basis upon which to set aside the decision. 

Accordingly, she confirmed the decision to dismiss the 

petitioners' application. 

[45] On October 7, 2002, counsel for the petitioners filed the 

petition currently before me, seeking judicial review of 

Arbitrator Gilbert' decision. The petition was later amended 

to seek a review of Arbitrator Katz's decision as well. 

The Human Rights Complaint 

[46] On November 5, 2001, Mr. Young filed a discrimination 

complaint with the British Columbia Human Rights Commission.


As the materials relating to this complaint were placed before 

Arbitrator Gilbert, I will describe their content here. 

[47] The Human Rights complaint alleged that Mr. Young had 

been subjected to harassment by other residents of Beechwood 

Park and that the CRHC "is or should be aware of this 

harassment and has fostered or encouraged or not taken any 

reasonable measure(s) to prevent this harassment and thereby 


discriminating [sic] against [Mr. Young] as prohibited at 

section 8(1) of the Code." The complaint further alleged that 

the CRHC discriminated against Mr. Young by attempting to seal 

only his door, thereby reducing the flow of fresh air through 

his residence. 

[48] Mr. Young's complaint initially named only the CRHC as 

respondent, but was later amended to add as respondents three 

fellow tenants, namely, Mr. Goorevitch, Ms. Lort and 

Ms. Belson. 

[49] On January 23, 2002, Human Rights Officer Betty Down 

forwarded her completed Investigation Report to Mary Duffy, 

Delegate for the Commissioner of Investigation and Mediation. 

Ms. Down reviewed the evidence from Mr. Young, including his 

complaints that other tenants had directed their children to 

run through the hallways with the intention of disturbing the 

petitioners, had disturbed their Christmas door decoration,


had stared at the petitioners and had engaged in conversation 

about the petitioners in the apartment hallway. Mr. Young had 

also complained that a male guest of Ms. Belson's had blown 

cigarette smoke into their suite from the hallway through the 

space between the door and the frame. 

[50] Ms. Down also reviewed the evidence from the CRHC 

representatives, Ms. Jaarsma and Ms. Joy, and the evidence 


from Mr. Goorevitch and Ms. Lort, who generally denied the 

petitioners' allegations. Ms. Belson declined to participate 

in the investigation. 

[51] Ms. Down concluded her report as follows: 

70. Based on the evidence as a whole, I recommend 

that this complaint be dismissed based on the 

analysis above and for the following reasons: 

71. The CRHC responded to the Complainant's 

complaints about the anonymous letters, and the 

letters have stopped being written. The CRHC 

also responded to his complaints about tenants 

harassing him. 

72. It appears the installation of the door sweep 

was a reasonable attempt to resolve the problem 

of marijuana smoke entering the hallway. The 

objective was not to stop the Complainant from 

smoking marijuana but to prohibit the smell 

from entering the hallway. As the 

Complainant's unit is the source of marijuana 

smoke, it was reasonable to install the door 

sweep on his unit. Although the Complainant 

states that this compromises the quality of air 

in his unit, the CRHC states that the hallway 

is not a source of fresh air.


Recommendation: 

73. It is recommended the complaint be dismissed 

under section 27(1)(c) which reads: 

27(1) The commissioner of investigation and 

mediation may, at any time after a complaint is 

filed, dismiss all or part of the complaint if 

that commissioner determines that any of the 

following apply: 

(c) there is no reasonable basis to 

justify referring the complaint or 

that part of the complaint to the 

tribunal for a hearing. 


[52] Upon receiving a copy of Ms. Down's report, the 

petitioners filed further submissions to the Commission. On 

May 6, 2002, however, Alan Borden, the delegate of the 

Commissioner, advised all parties that he was in agreement 

with Ms. Down's analysis and recommendation and that he was 

dismissing the complaint. 

[53] Counsel for the petitioners wrote to the Commission on 

May 24, 2002, requesting a reconsideration of Mr. Borden’s 

decision on the basis that Mr. Borden failed to hold a hearing 

and to give reasons for dismissing the petitioners' 

submissions. On June 13, 2002, David Hosking, another 

delegate of the Commissioner, wrote to counsel for the 

petitioners, denying the request for reconsideration. He 

observed that Mr. Borden had adopted the analysis of Ms. Down 

and was entitled to do so. He further stated that, since the


petitioners' submissions to the Commission raised no 

significant new issues, there was no need for Mr. Borden to 

provide a detailed response to those submissions. 

The Police 

[54] The petitioners' interaction with the Saanich police 

began on February 19, 2002. On that day, Mr. Young phoned 

Health Canada regarding the imminent expiry of his medical 


marihuana exemption. An employee from Health Canada contacted 

the SPD later that day to report that Mr. Young had threatened 

to bomb their offices. 

[55] Constable Muth responded to the complaint by attending at 

the petitioners' residence. Mr. Young denied making any 

threat to the Health Canada employee. Constable Muth asked 

Mr. Young for the expiry date on his medical marihuana 

exemption. Mr. Young refused to provide this information on 

the ground that it was private medical information. 

[56] On May 3, 2002, the petitioners delivered a written 

complaint to the SPD concerning the behaviour of their 

neighbour, Ms. Lort. The substance of the complaint was that 

Ms. Lort was continually staring at the petitioners and had 

taken a picture of them on one occasion.


[57] On May 31, 2002, Mr. Young phoned 9-1-1 to report that a 

tenant had entered his patio. Constables Richmond and Luhowy 

attended. Upon learning of Mr. Young's medical marihuana 

exemption, Constable Richmond asked to see the exemption 

documents. Mr. Young initially refused, telling the officers 

that they could contact Health Canada if they wished to 

confirm his exemption. Mr. Young did, ultimately, produce the 

first page of his exemption but refused to produce the 


remainder of the document containing the conditions of the 

exemption. Both constables deposed that, when asked to 

produce the remainder of the exemption document, Mr. and 

Mrs. Young became very agitated and yelled at the officers to 

leave the suite, which they did. The petitioners maintain 

that they asked the officers to leave because the officers 

were becoming confrontational. 

[58] On July 12, 2002, the SPD received a complaint from a 

Beechwood Park tenant regarding the smell of marihuana smoke. 

Constables Dyck and Taylor attended at approximately 

10:00 p.m. and spoke with the petitioners. Mr. Young 

maintained that he and his wife had returned home only minutes 

before the police arrived and could not have been responsible 

for any marihuana smell. Mr. Young produced the first page of 

his medical marihuana exemption and the officers did not


investigate further. In his affidavit, Constable Dyck deposed 

that both Mr. and Mrs. Young were hostile during their 

conversation and that he had to ask Mrs. Young to stop yelling 

at him so that he could read the exemption document. 

The Petitioners' Complaints about the Police 

[59] As a result of these police visits, the petitioners sent 

three separate letters to the SPD articulating complaints 


against the police department, the attending officers, their 

neighbours, the CRHC, the Human Rights Commission, the 

Residential Tenancy Branch and Health Canada. 

[60] On July 16, 2002, Sergeant Green of the SPD replied by 

letter to the petitioners' correspondence. He assured the 

petitioners that the police had no hidden agenda and were not 

conspiring to have the petitioners evicted. He suggested that 

a mediation take place between the police, the CRHC, the 

petitioners and their neighbours in order to resolve the 

difficulties at Beechwood Park. Constable Green indicated 

that as long as his department continued to receive complaints 

of marihuana use in the building, they would be forced to 

respond. The petitioners did not reply to the mediation 

proposal.


[61] Rather, on July 25, 2002, Mr. Young lodged formal 

complaints with the SPD regarding the conduct of the police on 

February 19, 2002 and May 31, 2002. These complaints were 

summarily dismissed. 

[62] I do not propose to relate all of the evidence concerning 

the petitioners' subsequent interactions with the SPD. It 

will suffice to say that Mr. and Mrs. Young have sent numerous 


letters to the Department seeking the disclosure and 

"correction" of information in police records and laying 

complaints against their neighbours and the Department itself. 

The petitioners are dissatisfied with the response they have 

received from the police. 

[63] The petitioners also made numerous requests under the 

Freedom of Information and Protection of Privacy Act, R.S.B.C. 

1996 c. 165, regarding records held by the SPD, the CRHC and 

the City of Saanich. The petitioners also take issue with the 

alleged sharing of their private information between the 

police, the CRHC and neighbouring tenants. 

Charter Issues 

[64] In Action 02/5145, Mr. and Mrs. Young allege breaches of 

their rights under sections 7, 8 and 15 of the Charter. They 

contend that they are "victims of terrible systemic


discrimination at the hands of bullies, the CRD and the SPD." 

This, they say, is because they represent a new vulnerable 

group, namely individuals who require the use of marihuana for 

health reasons. According to the petitioners, the respondents 

stereotyped them as illegal users of marihuana and set about 

to fabricate a case for eviction based on the alleged, but in 

fact non-existent, presence of smoke in the complex said to 

adversely affect neighbours. While the petitioners avoid 


using the word "conspiracy", the arguments they present, if 

accepted, amount to nothing less. In my view, the petitioners 

have taken a string of relatively benign unconnected events 

and forced them into a conspiracy theory. 

[65] There are formidable obstacles along the paths the 

petitioners have chosen to follow in presenting their case. 

Some arise out of misconceptions as to the availability of 

Charter protection when the impugned conduct is by someone 

other than a state actor. Others arise out of either the lack 

of a proper evidentiary basis for the particular arguments 

raised or, as the matter was argued on affidavit evidence, 

material conflicts in the evidence. 

[66] The following are examples of the obstacles to which I 

refer. The petitioners claim Charter relief arising, in part, 

out of the conduct of individual neighbours, who are clearly


not government actors. I am simply not persuaded on the 

evidence before me that any of these individuals acted in 

concert with any of the respondents to discriminate against 

the petitioners. Nor do I accept that the police had any 

interest whatsoever in the eviction of the petitioners. Other 

necessary factual underpinnings for the conspiracy argument, 

including the alleged improper sharing of information between 

the police and the CRHC, were not established in evidence. 


[67] One of the significant procedural obstacles is that the 

CRHC is not a party to the first proceeding, even though the 

complaints are inextricably linked with the decision by the 

CRHC, as the landlord, to seek eviction and the steps taken to 

achieve that end. Even if the CRHC was a party, I am not 

persuaded that it was a government actor for purposes of the 

Charter. 

[68] Another obstacle is created by the petitioners' failure 

to comply with s. 8 of the Constitutional Question Act, 

R.S.B.C. 1996, c. 68, which requires that notice be given to 

the Attorney General of Canada and the Attorney General of 

British Columbia of a hearing at which constitutional remedies 

are sought as they are here. 

[69] I observe that the petitioners do not contend that the 

relevant provisions of the RTA fail to comply with Charter


requirements. I find no evidence that the CRHC acted pursuant 

to any policy with a view to discriminating against the 

petitioners for using marihuana. Instead, I am satisfied on 

the evidence that the landlord attempted to take reasonable 

steps to accommodate the petitioners, but the petitioners 

refused to cooperate. The CRHC was entitled to rely on the 

statute and did so in seeking to evict. 


[70] In the course of proceedings under the RTA, Mr. and 

Mrs. Young contended, as they did before me, that there was no 

possible smell in the apartment complex associated with 

Mr. Young's use of marihuana. Thus, the petitioners continue 

to rely on the lack of smell as a starting point for many of 

their arguments, yet the arbitrator clearly found otherwise 

based on the evidence before him. That finding formed the 

basis for refusing to set aside the Notice and was never 

overcome on the evidence before me. 

[71] Because the petitioners are self-represented, I 

considered inviting an application to amend: either to add 

the CRHC as a party or to allege that it was acting throughout 

on behalf of the CRD, which is indisputably a government 

actor. I then further considered referring any necessary 

factual issues to the trial list to avoid the problems


associated with determining some aspects of the facts from 

conflicting affidavits. 

[72] I decided not to take these steps as I am persuaded that 

the petitioners' claims cannot possibly succeed. Even 

assuming that the CRHC was to be added as a party and that it 

was a government actor, taking the most favourable view 

possible of the evidence from the petitioners' perspective, 


the Charter challenges are still doomed to fail. 

[73] Before proceeding further, I wish to briefly address why 

it is necessary to assume that the CRHC is a government actor. 

On the evidence before me, I would conclude otherwise. 

CRHC as a Government Actor 

[74] The CRD and the CRHC are separate entities. The CRD 

concedes that it is a government actor in that it is a branch 

of government with legislated responsibilities. The CRHC, on 

the other hand, is a private company that is not owned, 

operated or controlled by the CRD. 

[75] The sole purpose of the CRHC is to provide housing. It 

manages a portfolio of over 1,200 units. Pursuant to a 

Special Resolution passed in 1994, it cannot carry on any 

other business. A majority of the Board of Directors are also 

sitting Directors of the CRD, but the CRD has no involvement


in the day-to-day running of the business of the corporation 

and had no involvement in any of the decisions or steps taken 

respecting the petitioners. 

[76] Section 32 of the Charter limits its application to the 

legislative, executive and administrative branches of 

government. The Charter does not apply to litigation between 

private parties. See R.W.D.S.U. v. Dolphin Delivery Ltd., 


[1986] 2 S.C.R. 573. In McKinney v. University of Guelph, 

[1990] 3 S.C.R. 229 at 261-62, La Forest J., referring to 

s. 32, stated: 

These words give a strong message that the 

Charter is confined to government action. This 

Court has repeatedly drawn attention to the fact 

that the Charter is essentially an instrument for 

checking the powers of government over the 

individual. ... 

The exclusion of private activity from the 

Charter was not a result of happenstance. It was a 

deliberate choice which must be respected. ... 

The CRHC, unlike the CRD, is not part of the legislative, 

executive or administrative branch of government. 

[77] According to McKinney, even if the CRHC were a 

governmental body, it would also have to be engaged in that 

capacity in respect of the conduct sought to be subjected to 

Charter scrutiny. There is no evidence before me to suggest 

that any action taken in respect of the petitioners was either


an action of government or on behalf of government. All the 

decisions and steps taken by the CRHC were as a private 

landlord pursuant to the tenancy agreement and the RTA. I do 

not accept that the CRHC was a government actor. 

The Assumptions 

[78] I return now to explain my decision not to refer these 

matters to the trial list. I intend to address only those 


issues put forward by the petitioners that were of potential 

significance. As I have earlier indicated, I am persuaded 

that the petitioners' Charter challenges cannot succeed, 

regardless of whether I accept their view of the evidence. 

Thus, my analysis of the issues raised will be based, in each 

case, on a number of assumptions favourable to the 

petitioners. Those assumptions are as follows: 

• Mr. Young’s disability leaves him with no choice but 

to smoke marihuana and to smoke it in his residence. 

• The CRHC is a government actor. 

• In evicting Mr. Young, the CRHC was acting in 

furtherance of a policy to evict persons whose 

marihuana smoking disturbed other tenants.


The one key assumption that I cannot make in the petitioners' 

favour is that the neighbours' complaints of marihuana smell 

were unfounded. The arbitrator came to the opposite 

conclusion based on the evidence before him, as he was 

entitled to do. For reasons that I will set out later under 

the heading Review of the Arbitrator's Findings of Fact, it is 

not open to me to come to a different conclusion on this 

point. 


Section 15 

15.(1) Every individual is equal before and under 

the law and has the right to the equal 

protection and equal benefit of the law 

without discrimination and, in particular, 

without discrimination based on race, 

national or ethnic origin, colour, 

religion, sex, age or mental or physical 

disability. 

Issues 

[79] The petitioners contend that they were flagrantly 

harassed by intolerant neighbours and that the CRD and the 

police failed to provide necessary assistance. According to 

the petitioners, these failures stemmed from discriminatory 

beliefs about the medical use of marihuana. In essence, the 

petitioners argue that the CRD has a duty to accommodate 

Mr. Young's disability by controlling the behaviour of other 

tenants and not seeking to evict the petitioners.


[80] Similarly, the petitioners complain that the police 

failed to adequately investigate and initiate prosecutions as 

was necessary to prevent harassment by intolerant neighbours. 

According to the petitioners, the police refused to fulfil 

their duty because of discriminatory beliefs about the medical 

use of marihuana. The petitioners completely failed to offer 

any evidentiary foundation capable of supporting the 

allegations against the police and it is unnecessary for me to 


analyze them. 

[81] Ignoring the reference to the CRD and based instead on 

the assumptions set out earlier, I find no possible breach of 

s. 15 arising out of any discriminatory practice. 

The "Zero-Tolerance" Policy 

[82] If the CRHC had evicted Mr. Young pursuant to a policy to 

evict sufferers of multiple sclerosis, this would constitute 

direct discrimination on the basis of the enumerated ground of 

physical disability. A section 15 Charter violation would be 

established. 

[83] The CRHC did not evict Mr. Young because he suffers from 

multiple sclerosis. As such, direct discrimination cannot be 

made out on these facts. I must also consider, however, the


possibility of adverse effect discrimination. As Iacobucci J. 

said in Symes v. Canada, [1993] 4 S.C.R. 695 at 755: 

... it is clear that a law may be discriminatory 

even if it is not directly or expressly 

discriminatory. In other words, adverse effects 

discrimination is comprehended by s. 15(1) ... 

Likewise, in Andrews v. Law Society of British Columbia, 

[1989] 1 S.C.R. 143, McIntyre J. stated at p. 164, "identical 


treatment may frequently produce serious inequality." 

McIntyre J. went on to say at p. 165, "a law expressed to bind 

all should not because of irrelevant personal differences have 

a more burdensome or less beneficial impact on one than 

another." 

[84] In Eldridge v. British Columbia (Attorney General), 

[1997] 3 S.C.R. 624, La Forest J. said at para. 64: 

Adverse effects discrimination is especially 

relevant in the case of disability. The government 

will rarely single out disabled persons for 

discriminatory treatment. More common are laws of 

general application that have a disparate impact on 

the disabled. ... 

[85] Thus, the mere fact that the CRHC applied the same rules, 

or more accurately, sought the application of the same 

provincial legislation to Mr. Young, as it would have to any 

other tenant who smoked marihuana in the building, does not


resolve the issue. I must consider whether the policy had a 

more burdensome effect on Mr. Young because of his disability. 

[86] In Ontario (Human Rights Commission) v. Simpsons-Sears 

Ltd. (1985), 23 D.L.R. (4th) 321 at 332 (S.C.C.), McIntyre J. 

provided the following explanation of adverse effect 

discrimination in the context of employment policies: 

A distinction must be made between what I would 

describe as direct discrimination and the concept 

already referred to as adverse effect discrimination 

in connection with employment. Direct 

discrimination occurs in this connection where an 

employer adopts a practice or rule which on its face 

discriminates on a prohibited ground. For example, 

"No Catholics or no women or no blacks employed 

here." There is, of course, no disagreement in the 

case at bar that direct discrimination of that 

nature would contravene the Act. On the other hand, 

there is no concept of adverse effect 

discrimination. It arises where an employer for 

genuine business reasons adopts a rule or standard 

which is on its face neutral, and which will apply 

equally to all employees, but which has a 

discriminatory effect upon a prohibited ground on 

one employee or group of employees in that it 

imposes, because of some special characteristic of 

the employee or group, obligations, penalties, or 

restrictive conditions not imposed on other members 

of the work force. ... 


It could be said that the CRHC has, for legitimate business 

reasons, adopted a policy that has had a disproportionate 

adverse effect on Mr. Young. The policy could be framed in 

various ways, but, in its essence, it dictates that tenants


whose marihuana smoking disturbs other tenants will be 

evicted. 

[87] Arguably, such a policy or conduct amounts to adverse 

effect discrimination. Though the rule, "No marihuana smoke" 

applies to all tenants equally, the effect of the rule is to 

impose a greater penalty or restrictive condition on Mr. Young 

because of his need to smoke marihuana, a characteristic 


incidental to his disability. Mr. Young is, so the argument 

goes, by reason of this rule, effectively denied access to 

certain social housing. 

[88] I accept that such a finding (made possible only by the 

assumptions adopted at the outset) would establish the type of 

discrimination contemplated by s. 15, as defined by 

Iacobucci J. in Law v. Canada (Minister of Employment and 

Immigration), [1999] 1 S.C.R. 497 at para. 88. The policy 

fails to take into account Mr. Young’s already disadvantaged 

position as a disabled person, resulting in substantively 

differential treatment between him and others on the basis of 

his need to smoke marihuana. The differential treatment is 

based on a characteristic incidental to his physical 

disability, which is an enumerated ground. Lastly, the 

differential treatment imposes a burden or withholds a benefit 

from Mr. Young in a manner that has the effect of perpetuating


or promoting the view that he is less capable or worthy of 

recognition or value as a human being or as a member of 

Canadian society, equally deserving of concern, respect, and 

consideration. 

[89] The s. 15 prohibition on adverse effect discrimination is 

not, however, absolute. The Supreme Court of Canada has held 

that a law that is prima facie discriminatory may nonetheless 


be justifiable under s. 1. In Eldridge, the court confirmed 

that the test for justifying adverse effect discrimination 

under s. 1 is that set out in R. v. Oakes, [1986] 1 S.C.R. 

103. In Egan v. Canada, [1995] 2 S.C.R. 513, Iacobucci J. 

summarized that test as follows at para. 182: 

... First, the objective of the legislation must be 

pressing and substantial. 

Second, the means chosen to attain this legislative 

end must be reasonable and demonstrably justifiable 

in a free and democratic society. In order to 

satisfy the second requirement, three criteria must 

be satisfied: (1) the rights violation must be 

rationally connected to the aim of the legislation; 

(2) the impugned provision must minimally impair the 

Charter guarantee; and (3) there must be a 

proportionality between the effect of the measure 

and its objective so that the attainment of the 

legislative goal is not outweighed by the 

abridgement of the right. In all s. 1 cases the 

burden of proof is with the government to show on a 

balance of probabilities that the violation is 

justifiable.


It seems to me that the CRHC has easily established that the 

objective of their policy, to ensure that all tenants can 

peacefully enjoy their residences, is pressing and 

substantial. It is also apparent that a policy of prohibiting 

offensive odours is rationally connected to that objective. 

[90] On the issues of minimal impairment and proportionality, 

unique considerations come into play in the context of adverse 


effect discrimination. At para. 79 of Eldridge, La Forest J. 

explained as follows: 

It is also a cornerstone of human rights 

jurisprudence, of course, that the duty to take 

positive action to ensure that members of 

disadvantaged groups benefit equally from services 

offered to the general public is subject to the 

principle of reasonable accommodation. The 

obligation to make reasonable accommodation for 

those adversely affected by a facially neutral 

policy or rule extends only to the point of "undue 

hardship"; see Simpsons-Sears, supra, and Central 

Alberta Dairy Pool, supra. In my view, in s. 15(1) 

cases this principle is best addressed as a 

component of the s. 1 analysis. Reasonable 

accommodation, in this context, is generally 

equivalent to the concept of "reasonable limits". 

It should not be employed to restrict the ambit of 

s. 15(1). 

[91] Similar tests were suggested in Ayangma v. Prince Edward 

Island, [2001] P.E.I.J. No. 105 (S.C. A.D.), leave to appeal 

refused [2001] S.C.C.A. No. 653, where McQuaid J.A. wrote as 

follows regarding the decision in Ontario v. Simpsons-Sears:


Adverse effect discrimination will be limited 

to a smaller group as it was in the above case which 

involved the termination of an employee who was 

unavailable for work on Friday evenings and Saturday 

because of her religion. While the right to 

practice her religion was not absolute, the court 

found that the employer must take such steps as were 

reasonable to accommodate the practice of the 

employee's religion without unduly interfering with 

the employer's business. Correspondingly, the 

employee must be prepared to take some accommodating 

steps and maybe either sacrifice his religious 

beliefs or his employment. (para. 25) 


In my view, the tests of "reasonable accommodation" and "undue 

hardship" weigh in favour of the respondent. If the CRHC is 

under a duty to take such steps as are reasonable to 

accommodate Mr. Young’s disability, it has met this standard. 

There do not appear to be any accommodation measures other 

than those already offered that would permit Mr. Young to 

smoke marihuana in his suite without drastically impeding the 

quality of life of the other tenants. The reasonable measure 

proposed by the CRHC, namely, the sealing of Mr. Young's door, 

was refused by Mr. Young. 

[92] The evidence suggests that accommodating Mr. Young’s 

disability would require the CRHC to deprive many other 

tenants of the enjoyment of their suites. It is also likely 

that the CRHC would continue to lose tenants. This result 

would undermine the very purpose for the CRHC's existence, to


provide quality housing, particularly to those living on low 

incomes. 

[93] Although the alleged CRHC policy may have had an adverse 

effect on Mr. Young by reason of a characteristic incidental 

to his disability, that policy is reasonably necessary to 

avoid undermining the legitimate objectives for which the CRHC 

was established. To force the CRHC and its tenants to 


tolerate Mr. Young's marihuana smoking would, in my view, 

constitute an imposition of undue hardship. 

[94] A successful s. 1 defence requires that the limit be 

"prescribed by law." While I have assumed that the CRHC acted 

pursuant to a policy, I appreciate that in evicting Mr. Young, 

the CRHC sought an available statutory remedy under the RTA. 

If I were to examine the provisions of the RTA for compliance 

with s. 1, the result would be the same. 

[95] The difficulty in pinpointing the proper law or policy to 

be examined stems largely from the dubious assumption that the 

CRHC is a governmental body. On the facts, such an assumption 

appears unfounded. If the CRHC were acting pursuant to 

enabling legislation that gave it the power to evict or to 

carry out the functions of a landlord, Mr. Young might be able 

to assail that legislation or the exercise of discretion under 

that legislation.


[96] As a private corporation, however, the CRHC is not 

operating on the basis of enabling legislation. It is 

governed, rather, by a memorandum, articles and a special 

resolution authorizing it to carry on business that includes 

the management of public housing. I am doubtful whether any 

of those "enactments" (using the term loosely) can be the 

subject of a Charter challenge in this context. 


Absence of a Policy 

[97] I am likewise not persuaded that the alleged failure of 

the CRHC to adopt some type of marihuana-friendly policy can 

be construed as a breach of Mr. Young's s. 15 rights. It may 

have been possible for Mr. Vriend to challenge the underinclusivity 

of Alberta's human rights legislation, but that 

was because the legislation was found to confer a benefit of 

human rights protection on some but not others: Vriend v. 

Alberta, [1998] 1 S.C.R. 493. 

[98] The CRHC is not in the business of providing for human 

rights protection. If its actual policies are not 

discriminatory, I cannot see how the lack of a formal nondiscrimination 

policy could give rise to a Charter breach. 

[99] I give no effect to the s. 15 arguments.


Section 8 

8. Everyone has the right to be secure against 

unreasonable search or seizure. 

Issues 

[100] The petitioners' complaint against the SPD, as it 

relates to s. 8, is that by questioning Mr. Young with regard 

to his medical marihuana exemption, the police thereby 


conducted a warrantless search. The gist of Mr. Young's 

complaint in this regard is that the information sought was 

personal medical information over which he had a reasonable 

expectation of privacy and that the police have no right to 

investigate someone for alleged marihuana use unless there are 

indicators that the use is for non-medicinal purposes. 

[101] As to the CRD, the petitioners allege that the CRHC 

attempted to conduct an unjustified search of the bedrooms in 

the petitioners' apartment on March 12, 2002. I observe that 

no such CRHC "search" ever took place, although there is an 

outstanding order by Arbitrator Knox made pursuant to the RTA 

permitting entry for an annual inspection. It is not open to 

the petitioners to attack that order in the present 

proceedings.


SPD 

[102] Accepting that the police officers, by asking 

questions of the Youngs, attempted to obtain information over 

which Mr. and Mrs. Young had a reasonable expectation of 

privacy, the difficulty with this argument is that the police 

never did anything that could possibly be construed as a 

search or seizure. Had the police entered his residence 


without consent or obtained his private medical information 

without consent, Mr. Young might have some basis for alleging 

that a warrantless search had occurred. His own evidence, 

however, establishes that the police did nothing more than 

question him about his medical marihuana exemption upon 

learning that he was in possession of a controlled substance. 

[103] Mr. Young was unable to produce and I am unaware of 

any authority for the proposition that s. 8 protects an 

individual from police questioning. While s. 10 imposes some 

restrictions on the ability of the police to question a 

detainee, Mr. Young was never detained. 

[104] Upon being questioned, Mr. Young was at liberty to 

disclose or withhold information as he saw fit. He did, in 

fact, refuse to disclose certain information to the police 

officers with whom he dealt. Mr. Young's s. 8 rights simply 

are not engaged by a request from police that he voluntarily


disclose certain information. The police questioning amounted 

to nothing more than a request that Mr. Young waive his right 

to privacy in that information. The police are entitled to 

make such requests. 

[105] The police are charged with the duty of enforcing 

the provisions of the CDSA, including those that prohibit the 

possession and cultivation of marihuana. In my view, the 


police had a legal right, probably even a duty, to make 

inquiries into the lawfulness of Mr. Young's admitted 

possession of marihuana. Mr. Young contends that the police 

should not be permitted to enter into an investigation 

pertaining to marihuana possession unless they have evidence 

of non-medicinal use. Such a proposition ignores the fact 

that the vast majority of marihuana users in this country do 

not have Health Canada exemptions and are not in lawful 

possession of marihuana. To prevent police officers from 

making inquiries without evidence of non-medicinal use (and 

Mr. Young does not explain what would constitute such 

evidence) would drastically hinder the ability of the police 

to enforce the marihuana-related provisions of the CDSA. 

[106] Moreover, Health Canada has provided a means by 

which Mr. Young can advise his local police detachment of his 

exemption so as to avoid the questioning of which he


complains. He was asked to sign a consent form authorizing 

the release of his name, date of birth and details of his 

exemption to police agencies in order to limit the risk that 

he would be inadvertently arrested or charged. None of the 

information that would be released constitutes private medical 

information. Mr. Young is under no obligation to authorize 

the release of such information, but having chosen not to make 

the police aware of his exemption, he cannot reasonably expect 


that police officers will simply accept his assertion that he 

has an exemption and make no further inquiries. 

CRHC 

[107] Mr. Young alleges that the attempts by the CRHC to 

enter and inspect the bedrooms of his residence constituted an 

unreasonable search contrary to s. 8 of the Charter. He 

argues that because he uses his bedrooms for cultivating 

marihuana, the actions of the CRHC are tantamount to an 

attempt to inspect his medicine cabinet. 

[108] Assuming once again that the CRHC is a government 

actor, it is essential to note that s. 8 does not afford an 

absolute privacy interest. Rather, it protects only a 

person’s reasonable expectation of privacy. There is no 

question that Mr. Young, as with most persons, has an


expectation of privacy in his residence. That expectation, 

however, is not unlimited. 

[109] Mr. and Mrs. Young do not own their residence. They 

are tenants with a contractual leasehold interest. The RTA 

expressly permits a landlord to enter a residential premise 

for a reasonable purpose. Arbitrator Knox found that annual 

inspections were a reasonable purpose. Thus, the petitioners 


never had any absolute right to privacy in their bedrooms. At 

the very least, the petitioners waived their right to privacy 

to the limited extent necessary for the CRHC to conduct 

inspections for a reasonable purpose. 

[110] I also have difficulty with Mr. Young's argument 

that his bedrooms should be insulated from inspection because 

they contain his supply of medicine. If there are limits to a 

person's expectation of privacy in a particular location, 

those limits cannot be overcome merely by placing more items 

of a private nature in that location. 

[111] For these reasons, I have concluded that the 

petitioners' s. 8 arguments are without merit. 

Section 7 

7. Everyone has the right to life, liberty and 

security of the person and the right not to be


deprived thereof except in accordance with the 

principles of fundamental justice. 

Issues 

[112] The petitioners contend that the CRD breached their 

s. 7 rights by disclosing to others Mr. Young's private 

medical information as well as details about the tenancy 

dispute. I do not propose to address these complaints 


separately as they are without foundation. For the most part, 

the petitioners were responsible for any dissemination of 

private information, including to the media and politicians. 

They cannot complain when others respond. 

[113] The petitioners also contend that the CRD adopted a 

"zero-tolerance" policy prohibiting medical marihuana use such 

as to interfere with Mr. Young's choice of medication and 

where to establish a home. I will address this argument 

below, but only on the basis of the earlier stated 

assumptions. 

[114] As against the SPD, the petitioners first contend 

that the police also improperly shared information with 

others. During his submission, Mr. Young referred several 

times to his concern that Mr. Borzoni, who acted as counsel 

for all the respondents, performed some improper function


related to this allegation. There was simply no evidence to 

support any allegation of wrongdoing on the part of counsel. 

As to the police, I also note that the petitioners typically 

sent copies of their correspondence with the police to other 

entities. On at least one occasion, the letter was copied 

directly to the CRD. 

[115] I am also not persuaded, on the evidence, that the 


police ever refused to carry out their duties in responding to 

any complaints by the petitioners. To the extent any 

investigations foundered, I find that the main contributing 

factor was the unwillingness of the petitioners to reasonably 

cooperate. I will not further address the issues raised 

respecting s. 7 violations by the police. 

CRHC 

[116] In R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.), the 

court held that the blanket marihuana prohibitions in the CDSA 

violated the accused's s. 7 rights. Rosenberg J.A., writing 

for the court, held that the marihuana prohibitions infringed 

the accused's liberty interests for two reasons: 

(1) because they threatened the accused with criminal 

prosecution and imprisonment; and


(2) because they deprived the accused of the right to 

make decisions of fundamental personal importance, 

namely, the choice of medication to alleviate the 

effects of an illness with life-threatening 

consequences (para. 92). 

The court also found that the accused's right to security of 

the person had been infringed on the grounds that: 


... Depriving a patient of medication in such 

circumstances, through a criminal sanction, also 

constitutes a serious interference with both 

physical and psychological integrity. (para. 97) 

[117] In the case at bar, Mr. Young never faced any threat 

of criminal prosecution or imprisonment. All that remains to 

be considered is whether the policies or actions of the CRHC 

interfere with Mr. Young's ability to make decisions of 

fundamental personal importance or cause serious interference 

with his physical or psychological integrity. 

Liberty 

[118] Mr. Young complains that the CRHC's zero-tolerance 

policy deprives him of his right to smoke marihuana for the 

alleviation of his symptoms. According to Parker, one's 

choice of medication to alleviate the effects of an illness 

with life-threatening consequences is of sufficient


fundamental importance to engage a s. 7 liberty interest. It 

appears then, that the alleged prohibition on marihuana smoke 

by the CRHC constitutes a deprivation of Mr. Young's s. 7 

liberty rights, though obviously the sanction of eviction is 

not as severe as that imposed by the CDSA, namely 

imprisonment. 

Security of the Person 


[119] In Parker, it was held that depriving a patient with 

a life-threatening illness of medication, through a criminal 

sanction, constituted serious interference with both physical 

and psychological integrity. In the case at bar, the sanction 

is not criminal in nature, but does have the effect of 

depriving Mr. Young of his medication (based solely on the 

assumptions I have made for the purpose of this analysis). 

[120] Most of the "security of the person" jurisprudence 

cited in Parker was decided in the criminal law context. 

Rosenberg J.A. quoted, for instance, from the reasons of 

Beetz J. in R. v. Morgentaler, [1988] 1 S.C.R. 30 at 91: 

If a rule of criminal law precludes a person 

from obtaining appropriate medical treatment when 

his or her life or health is in danger, then the 

state has intervened and this intervention 

constitutes a violation of that man's or that 

woman's security of the person. "Security of the 

person" must include a right of access to medical 

treatment for a condition representing a danger to


life or health without fear of criminal sanction if 

an act of Parliament forces a person whose life or 

health is in danger to choose between, on the one 

hand, the commission of a crime to obtain effective 

and timely medical treatment and, on the other hand, 

inadequate treatment or no treatment at all, the 

right to security of the person has been violated. 

The court further relied upon the reasoning of Sopinka J. in 

Rodriguez v. British Columbia (Attorney General), [1993] 3 

S.C.R. 519 at 588: 


... There is no question, then, that personal 

autonomy, at least with respect to the right to make 

choices concerning one's own body, control over 

one's physical and psychological integrity, and 

basic human dignity are encompassed within security 

of the person, at least to the extent of freedom 

from criminal prohibitions which interfere with 

these. [emphasis added] 

[121] Subsequent authorities have found a breach of the 

right to security of the person in non-criminal contexts as 

well. In Blencoe v. British Columbia (Human Rights 

Commission), [2000] 2 S.C.R. 307, Bastarache J., writing for 

the majority of the court, stated as follows at paras. 56-57: 

The principle that the right to security of the 

person encompasses serious state-imposed 

psychological stress has recently been reiterated by 

this Court in G.(J.), supra. At issue in G.(J.) was 

whether relieving a parent of the custody of his or 

her children restricts a parent's right to security 

of the person. Lamer C.J. held that the parental 

interest in raising one's children is one of 

fundamental personal importance. State removal of a 

child from parental custody thus constitutes direct


state interference with the psychological integrity 

of the parent, amounting to a "gross intrusion" into 

the private and intimate sphere of the parent-child 

relationship (at para. 61). Lamer C.J. concluded 

that s. 7 guarantees every parent the right to a 

fair hearing where the state seeks to obtain custody 

of their children (at para. 55). However, the 

former Chief Justice also set boundaries in G.(J.) 

for cases where one's psychological integrity is 

infringed upon. He referred to the attempt to 

delineate such boundaries as "an inexact science" 

(para. 59). 

Not all state interference with an individual's 

psychological integrity will engage s. 7. Where the 

psychological integrity of a person is at issue, 

security of the person is restricted to "serious 

state-imposed psychological stress" (Dickson C.J. in 

Morgentaler, supra, at p. 56). I think Lamer C.J. 

was correct in his assertion that Dickson C.J. was 

seeking to convey something qualitative about the 

type of state interference that would rise to the 

level of infringing s. 7 (G.(J.), at para. 59). The 

words "serious state-imposed psychological stress" 

delineate two requirements that must be met in order 

for security of the person to be triggered. First, 

the psychological harm must be state imposed, 

meaning that the harm must result from the actions 

of the state. Second, the psychological prejudice 

must be serious. Not all forms of psychological 

prejudice caused by government will lead to 

automatic s. 7 violations. ... [emphasis original] 


[122] It must also be remembered that the test is an 

objective one. In New Brunswick (Minister of Health and 

Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Lamer C.J. 

explained as follows at para. 60: 

For a restriction of security of the person to 

be made out, then, the impugned state action must 

have a serious and profound effect on a person's 

psychological integrity. The effects of the state


interference must be assessed objectively, with a 

view to their impact on the psychological integrity 

of a person of reasonable sensibility. This need 

not rise to the level of nervous shock or 

psychiatric illness, but must be greater than 

ordinary stress or anxiety. 

[123] It is obvious that the loss of rental accommodations 

cannot be equated with the loss of custody of a child and 

probably would not cause a profound impact on the 

psychological integrity of a person of reasonable sensibility. 


I am inclined to the view, however, that the impact that must 

be considered is not Mr. Young's loss of rental accommodations 

but, rather (once again, based on the earlier assumptions), 

his loss of the use of his medicine. See the reasoning in 

Godbout v. Longeuil (City), [1997] 3 S.C.R. 844 at para. 61. 

[124] Such a deprivation clearly impacts Mr. Young's 

bodily integrity and would probably also constitute 

interference with his psychological integrity. If denying a 

woman an abortion is sufficient to cause a serious and 

profound effect on her psychological integrity, then 

presumably denying a seriously-ill man his medication would 

have at least a comparable effect. Decisions about personal 

medical care clearly engage the values of personal autonomy 

and human dignity that s. 7 is meant to protect. The 

distinction between deprivation by criminal sanction and


deprivation by non-criminal sanction is probably best left to 

the "principles of fundamental justice" analysis. 

[125] For these reasons, and only on the basis of the 

assumptions made at the outset, I would conclude that 

Mr. Young has been deprived of his s. 7 right to liberty and 

security of the person. 

Principles of Fundamental Justice 


[126] The next step in the s. 7 analysis is to determine 

whether the deprivation of liberty and security of the person 

is in accordance with the principles of fundamental justice. 

In Godbout, La Forest J. explained that this analysis often 

involves balancing individual rights against collective 

interests. At para. 76, he stated: 

But just as this Court has relied on specific 

principles or policies to guide its analysis in 

particular cases, it has also acknowledged that 

looking to "the principles of fundamental justice" 

often involves the more general endeavour of 

balancing the constitutional right of the individual 

claimant against the countervailing interests of the 

state. In other words, deciding whether the 

principles of fundamental justice have been 

respected in a particular case has been understood 

not only as requiring that the infringement at issue 

be evaluated in light of a specific principle 

pertinent to the case, but also as permitting a 

broader inquiry into whether the right to life, 

liberty or security of the person asserted by the 

individual can, in the circumstances, justifiably be 

violated given the interests or purposes sought to 

be advanced in doing so. To my mind, performing


this balancing test in considering the fundamental 

justice aspect of s. 7 is both eminently sensible 

and perfectly consistent with the aim and import of 

that provision, since the notion that individual 

rights may, in some circumstances, be subordinated 

to substantial and compelling collective interests 

is itself a basic tenet of our legal system lying at 

or very near the core of our most deeply rooted 

juridical convictions. We need look no further than 

the Charter itself to be satisfied of this. 

Expressed in the language of s. 7, the notion of 

balancing individual rights against collective 

interests itself reflects what may rightfully be 

termed a "principle of fundamental justice" which, 

if respected, can serve as the basis for justifying 

the state's infringement of an otherwise sacrosanct 

constitutional right. 


Thus, Mr. Young’s right to choose his medication must be 

balanced against the CRHC's interests in preserving for their 

tenants the peaceful enjoyment of their residences. In my 

view, the collective interest that the CRHC is attempting to 

protect is "substantial and compelling" and outweighs the 

individual interests of Mr. Young in the circumstances of this 

case. 

[127] I have great sympathy for an individual who must 

consume marihuana for alleviation of the symptoms of his 

disability. I cannot ignore, however, the interests of the 

numerous tenants who were found to have been adversely 

affected by the marihuana smoke produced by Mr. Young. The 

evidence suggests that the odour has made their suites 

virtually unliveable. Whether or not this is actually the


case, what is at issue is the constitutionality of a policy 

that prohibits the unreasonable disturbance of neighbours by 

marihuana smoking. In my view, the state interest in 

protecting tenants from unreasonably disturbing odours must 

prevail. 

[128] To hold otherwise would permit a single apartmentdweller 

to dramatically impair the quality of life of his 


fellow tenants. One need only look to the lengthy history of 

the common law tort of nuisance to recognize that it has been 

a longstanding principle of our justice system that an 

individual's freedom to do as he wishes on his property is 

subject to the caveat that he not unreasonably disturb his 

neighbour's enjoyment of her property. 

[129] I also take into consideration the extent of the 

infringement. See Godbout, at para. 78. A crucial 

distinction between this case and Parker is that, in the 

latter case, the accused was deprived of his choice of 

medicine by the threat of criminal prosecution and 

imprisonment. In other words, the deprivation was, in 

essence, absolute. In the case at bar, Mr. Young must seek 

out alternate accommodations in which to use marihuana. I 

would be more reluctant to arrive at my present conclusion if 

the result would be to force Mr. Young to cease using


marihuana for medicinal purposes. In reality, accommodation 

is available, including social housing, that will permit 

Mr. Young to continue to smoke marihuana without disturbing 

those living around him. 

[130] There is, perhaps, another way to approach the s. 7 

analysis in this case. Mr. Young also argued that the CRHC 

policy deprives him of his s. 7 right to liberty by 


interfering with his choice of where to establish his 

residence. He relied on the decision in Godbout for the 

proposition that the choice of where to establish one's home 

falls within the class of fundamental decisions deserving of 

s. 7 protection. Even assuming that the principle in Godbout 

applies to the choice of a particular residence, as opposed to 

the choice of a neighbourhood or community generally, which 

was the issue in Godbout, I am of the view that this argument 

would founder on the "principles of fundamental justice" 

analysis as well. Once again, the collective interest 

outweighs that of the individual. I see no basis upon which 

the petitioners could establish any breach of s. 7 in the 

circumstances. 

[131] As none of the alleged Charter breaches were made 

out, the petition filed under Action 02/5145 is dismissed as 

against both the SPD and the CRD. The only questions


remaining for determination fall within the rubric of judicial 

review of Arbitrator Gilbert’s decision which is the subject 

of attack in Action 02/4528. 

Issues on Judicial Review 

[132] Attached as Appendix A to these reasons are the 

relevant provisions of the RTA and the Rules of Procedure that 

govern arbitrations under the Act. Those provisions and rules 


are extensive. It is apparent that the Legislature intended, 

in enacting the RTA, to provide a means of dispute resolution 

between landlord and tenant that was relatively inexpensive, 

informal and expeditious. Although there is not a full 

privative clause, the legislation contains a "finality" 

clause. This provision is intended to avoid retrying issues 

except as otherwise provided in the Act. 

[133] The petitioners contend that Arbitrator Gilbert 

committed numerous procedural errors, misapprehended the 

evidence before him and was biased, or conducted the hearing 

in a manner that gave rise to a reasonable apprehension of 

bias. Mr. and Mrs. Young seek an order setting aside the 

arbitrator’s decision of August 29, 2002. 

[134] Finally, Mr. and Mrs. Young contend that Arbitrator 

Katz erred when she denied their application for review and,


instead, confirmed Arbitrator Gilbert's decision. They seek a 

further order setting aside the October 4, 2002 decision of 

Arbitrator Katz. 

[135] The CRHC opposes the granting of any of the relief 

claimed on the basis that neither arbitrator erred or that any 

errors are insufficient to meet the applicable standards of 

review. In substance, the CRHC contends that the only issue 


before Arbitrator Gilbert was whether other tenants were 

unreasonably disturbed by the petitioners. The CRHC says that 

the arbitrator had evidence before him to support his 

conclusion that the other tenants were unreasonably disturbed 

and that the conclusion was not patently unreasonable. The 

CRHC says that the petitioners failed to establish any 

reviewable error entitling them to a remedy. 

Standards of Review 

[136] I propose to begin by setting out the applicable 

standards of review. A judicial review is not the same as an 

appeal. It is limited here to determining whether the 

decision makers, in this case the arbitrators, acted strictly 

within the powers that have been delegated to them under the 

RTA. Judicial review focuses almost entirely on 

jurisdictional issues. Jurisdictional defects may include, 

for example, bias or reasonable apprehension of bias, not


considering relevant matters, making serious procedural errors 

or, in some circumstances, making an error of law. A 

discussion of most of these general principles may be found in 

Mikami v. Ambrozewicz, 2000 BCSC 1116. 

[137] Smith J. discussed the standard of review to be 

applied to arbitrators appointed under the RTA in Fulber v. 

Doll, 2001 BCSC 891. I adopt what she said, at paras. 55 and 


63, and apply it to my review of Arbitrator Gilbert's factual 

conclusion that the presence of marihuana smoke unreasonably 

interfered with the enjoyment of other tenants: 

55 In determining the standard of review on 

substantive issues, the Supreme Court of Canada 

requires courts to take a "pragmatic and functional 

approach": (Citations omitted.) Standards of review 

appear on a spectrum ranging from least deferential 

(correctness) to more deferential (reasonableness 

simpliciter, which I will call "simple 

reasonableness") to most deferential (patent 

unreasonableness). To determine the appropriate 

standard of review, the court is to take into 

account a number of factors: (1) the existence of a 

privative clause or statutory right of appeal; (2) 

the expertise of the tribunal, in particular in 

relation to the expertise of the court; (3) the 

purpose of the statute and of the particular 

provision; and (4) the nature of the problem, be it 

a question of law, fact, or mixed law and fact: 

(Citations omitted.) ... 

63 Applying the four factors the Supreme Court has 

identified in Baker and Pushpanathan, I note the 

following. First, there is a "finality" clause, 

though not a "full" privative clause. Section 57(3) 

of the Act states that "Except as otherwise provided 

in this Act, a decision or order of an arbitrator is 

final and binding on the parties". Second, given


the arbitrators' task under the legislation to 

determine large numbers of disputes between 

landlords and tenants, it seems likely that 

arbitrators have expertise in determining when a 

landlord's safety or other lawful right or interest 

has been seriously impaired by an act or omission of 

the tenant. Third, the purpose of the arbitration 

scheme in the Act must be to provide for dispute 

resolution between landlords and tenants 

inexpensively and expeditiously. Consistent with 

this would be a deferential approach when the 

arbitrators are determining questions of law or 

mixed fact and law within their jurisdiction. The 

question here, that is, whether the "safety or other 

lawful right or interest of the landlord" has been 

"seriously impaired by an act or omission of the 

tenant", is a question of mixed fact and law. 

Fourth, the decision affects the interests of the 

particular tenants and landlord, and is not complex, 

polycentric, or policy-intensive. This latter 

factor points toward less rather than more 

deference. However, considering the legislative 

scheme and nature of the decision at issue here, as 

well as the previously-decided cases on the standard 

of review under the Act, I conclude that the 

standard of review should be patent 

unreasonableness. 


In more direct terms, I accept the CRHC contention that I must 

not interfere with the decision of the arbitrator so long as 

there was some evidence before him logically and reasonably 

capable of supporting his factual conclusions. I have no 

power to interfere even if I might have reached a different 

conclusion on the same evidence. 

[138] The standard of review to be applied to the decision 

of Arbitrator Katz is less deferential. In conducting a 

review of another arbitrator’s decision, Arbitrator Katz took


on a role comparable to the role of this court under the JRPA. 

I need only apply a standard of correctness to the review 

decision. See Cameron v. Sparks, [1997] B.C.J. No. 1570 

(S.C.); Gallupe v. Birch, [1998] B.C.J. No. 1023 (S.C.). 

[139] In Fulber, Smith J. also addressed the question of 

procedural fairness at an arbitration hearing. She concluded 

that the parties are entitled to a high standard of procedural 


fairness. Smith J. said this, at paras. 26 and 30: 

26 ... In Baker, L'Heureux Dubé J. said (at 

pp. 837-841) that the following principles are 

relevant to the determination of the content of the 

duty of procedural fairness in a given case: (1) 

the nature of the decision being made and the 

process followed in making it, in particular the 

closeness of the process to a judicial process; (2) 

the nature of the statutory scheme and the role of 

the particular decision within that scheme, in 

particular whether there is an internal appeal 

procedure; (3) the importance of the decision to the 

persons affected, which is identified as a 

particularly significant factor; (4) the legitimate 

expectations of the person challenging the decision 

as to the procedures which will be followed; and (5) 

whether the statute leaves the decision-maker the 

ability to choose its own procedures and whether the 

agency has expertise in determining what procedures 

are appropriate in the circumstances. 

... 

30 Considering each of the factors specified in 

Baker, I first note that arbitrators under the Act 

have the power to determine their own procedure 

(s. 55) and that they may have expertise in making 

that determination. This factor points to nonintervention. 

However, the other factors 

highlighted in Baker point to the necessity for a 

high standard of procedural fairness. The


arbitration proceedings are similar to judicial ones 

and indeed disputes between landlord and tenant 

would be in court but for the existence of this 

legislative arbitration scheme; there is effectively 

no internal appeal (the review process provided by 

s. 59 of the Act applies only on a very limited 

basis such as when new evidence has come to light 

that was not available before the hearing); and the 

outcome is highly important to the individuals 

affected. The petitioners in this case have lived 

in the community for many years, and the termination 

of their tenancies will mean dislocation for them 

and their families. I conclude that a high standard 

of procedural fairness is required. 


I apply a similar standard of procedural fairness to the 

hearings under review in the case at bar. 

Reasonable Apprehension of Bias 

[140] In their petition, Mr. and Mrs. Young set out the 

basis for arguing a reasonable apprehension of bias at 

paragraph 1(e), as follows: 

(e) Three days before the August 15th hearing 

commenced, or on August 12th, and unbeknownst then 

to the Petitioner/Tenants or their Counsel, and 

three days before the Petitioners were given copies, 

the Arbitrator was presented and then read the whole 

of the Respondent CRHC's case in several documents, 

including "will-say" summaries of witnesses who did 

not subsequently appear or which was in excess of 

their actual testimony, and a detailed "chronology", 

creating thereby a reasonable apprehension of bias 

and cause for disqualification of the Arbitrator.


Mr. Young also stated in argument that there was actual bias, 

although there was no pleading or evidence offered to support 

that contention. 

[141] Having reviewed the evidence of what transpired 

before and at the hearing before Arbitrator Gilbert, I am not 

persuaded that there was any reasonable apprehension of bias. 

Counsel for the CRHC gave the arbitrator copies of a 


chronology as well as "will say" statements of witnesses 

before the hearing. The "will says" were provided at the 

request of and to assist counsel for the petitioners. Counsel 

for the petitioners received the "will say" statements at the 

same time as the arbitrator. 

[142] Although counsel for the petitioners expressed some 

concern at the hearing about the documents being supplied to 

the arbitrator in advance, he stated that he did not take any 

formal objection to the procedure. The arbitrator agreed not 

to rely on the "will say" statements of any persons who did 

not testify. 

[143] The arbitrator further agreed that the chronology 

was not evidence. It listed dates, events and names to assist 

the arbitrator. The witnesses who were primarily responsible 

for the chronology testified and were available for crossexamination 

on its content in any event.


The Adjournment Applications 

[144] The hearing before Arbitrator Gilbert was set for 

July 31, 2002 and was originally scheduled for one day with 

the concurrence of counsel for the petitioners. The 

petitioners applied for and obtained permission to tape the 

proceedings. Two further days of hearing were required: 

July 31, 2002 and August 26, 2002. Before me, the petitioners 


only produced transcripts for the first two days. This was 

unfortunate because the petitioners were only present at the 

first day of the hearing and cannot proffer any evidence about 

the final day. 

[145] At the conclusion of the first day of proceedings on 

July 31, 2002, all parties agreed to set aside a full day for 

the continuation of the hearing on August 15, 2002. On 

August 15, 2002, Mr. Duhaime appeared without his clients. He 

produced a doctor's note dated August 14, 2002, which read, 

"For medical reasons, these patients of mine are unable to 

attend the hearing planned for tomorrow." Mr. Duhaime 

indicated that he was concerned about conducting the hearing 

in the absence of his clients, as he would be unable to obtain 

instructions from them on issues that might arise during the 

hearing. He sought an adjournment on this basis.


[146] Arbitrator Gilbert denied the application. In his 

written reasons, he explained as follows at page 4: 

... I denied that application for adjournment on the 

basis that the landlord has shown a prima facie 

basis for the Notice to end the tenancy. I refer to 

the landlord’s Notice to end the tenancy and the 

numerous attachments with that document. I also 

denied the application for adjournment because the 

Notice provides that the tenancy ends on August 31, 

2002 and there was no indication that the dispute 

could be resolved by that date. Finally, I denied 

the application for adjournment on the basis that 

counsel for the tenants was unable to inform me with 

any certainty of when the tenants might be able to 

attend for a hearing. I advised counsel for the 

tenants that he had two choices. We could continue 

with this hearing on August 15, 2002 with counsel 

for the tenants presenting the case for the tenants 

as agent for the tenants or I could dismiss the 

tenants' application for arbitration without leave 

to reapply. I noted that the reason that I would 

dismiss the application without leave to reapply was 

that the Notice to end provides that the tenancy 

ends on August 31, 2002. As I have noted 

previously, it is the Legislature's intention that 

these proceedings be conducted expeditiously and 

therefore it is imperative that the issues be 

decided before the tenancy is scheduled to end. ... 


[147] Following this ruling, Mr. Duhaime elected to 

proceed with the hearing and represented the petitioners in 

their absence. At the end of that day's proceedings, the 

parties agreed to set aside another full day for a 

continuation of the hearing on August 26, 2002. 

[148] On August 26, 2002, Mr. Duhaime attended, once 

again, in the absence of the petitioners. He made another


adjournment application, stating that the petitioners would be 

able to attend a hearing within two weeks. Mr. Duhaime 

produced a letter dated August 20, 2002, from the petitioners' 

psychiatrist. The letter read as follows: 

I saw Eric and his wife today. 

They presented as being extremely stressed because 

of his inability to grow and use marihuana although 

the Federal Government approved the use of marihuana 

for medical reasons. 


He is aware that his health is deteriorating without 

regular use of marihuana, i.e. increasing fatigue 

and insomnia. 

He and his wife feel under siege by: 

a) A continual negative reaction by many 

people where they live that gives rise to 

a notice of eviction by the landlord. 

b) His belief that many people are 

overreacting to his situation because of 

lack of understanding of cost benefit in 

marihuana use and alleged dangers 

associated with it. 

c) He and his partner feel overwhelmed by 

lack of support especially a lack of 

patient advocates in the medical 

profession. 

They feel they have exhausted all avenues of help. 

At times they are so stressed that they have 

suicidal thinking. 

At this time I do not feel they can handle the 

stress of an arbitration hearing regarding eviction.


[149] Arbitrator Gilbert denied the second adjournment 

application as well. His written reasons explained as follows 

at pages 5-6: 

Does the purpose of the requested adjournment 

facilitate a resolution of the dispute? The purpose 

of the adjournment is to give the tenants an 

opportunity to recover from stress. In my view, if 

the process is causing stress for the tenants, an 

allegation made by the tenants and their 

psychiatrist, an adjournment would only increase the 

stress because the conflict would increase. An 

adjournment might have the effect of prolonging any 

resolution of the dispute. 


... 

The need for the adjournment appears to result from 

the actions of the tenants. The various court 

actions were commenced by the tenants. Human rights 

proceedings were commenced by the tenants. These 

proceedings were commenced by the tenants. It is 

understandable that the tenants would feel stressed 

with all of these actions. However, it is obvious 

that the reasons for this request for an adjournment 

are entirely or almost entirely the creation of the 

tenants. It is difficult to imagine how the 

landlord should be prejudiced when the adjournment 

is caused solely or primarily by the conduct of the 

tenants. 

Any adjournment of this hearing would have been 

highly prejudicial to the landlord and the other 

occupants. The tenants’ second application for 

adjournment was denied. 

[150] The petitioners contend that the arbitrator erred in 

refusing the two applications by their counsel for 

adjournments. The arbitrator gave reasons for refusing the 

applications as I set out above. It is obvious that he


considered the criteria for adjournments set out in procedural 

Rule 6.5 and exercised his discretion against the petitioners. 

I note that on August 15, 2002, counsel for the petitioners 

was unable to say how long an adjournment was required and the 

arbitrator had to balance that uncertainty against the 

consequences of delaying the hearing for the CRHC, which had 

already issued a termination notice effective August 31, 2002, 

as well as for other tenants in the complex. Keeping in mind 


that the arbitrator was dealing with the petitioners' 

application, I am not persuaded that the arbitrator erred in 

any way in refusing the applications or that any procedural 

unfairness resulted. 

Wrongful Denial of Attendance at the 

Hearing by a Member of the Public 

[151] The arbitrator upheld an objection by the CRHC to 

the proposed presence of an individual who was not a party or 

a witness on August 26, 2002. Rule 11.11 provides for 

exclusion unless the arbitrator permits otherwise. It is for 

the arbitrator to decide if the hearing is open generally to 

the public. I have reviewed his reasons for upholding the 

objection and am unable to find any basis for review.


The Refusal to Exclude Ms. Jaarsma 

[152] Counsel for the petitioner sought to exclude 

Ms. Jaarsma from the hearing, but the arbitrator declined to 

do so on the basis that she was one of the two representatives 

of the CRHC instructing counsel. Ms. Jaarsma did not testify 

at the hearing. There was no possible prejudice to the 

petitioners and I find no merit in this complaint. 


The Alleged Refusal to Visit the Complex to Determine 

Whether the Smell of Marihuana was Present 

[153] The petitioners say that Arbitrator Gilbert wrongly 

declined to visit the petitioners' residence and the 

surrounding complex. During the first day of proceedings, 

counsel for the petitioners requested that the arbitrator 

attend at Beechwood Park as part of the fact-finding process. 

He proposed that Mr. Young could smoke marihuana in his 

apartment while the arbitrator waited in the hallway to 

determine whether or not an odour of marihuana did, in fact, 

escape from the petitioners' suite. 

[154] Counsel for the CRHC opposed the idea at the time, 

arguing that the petitioners' claim that other tenants could 

not smell the marihuana was untenable. Counsel told the 

arbitrator that marihuana smoke gives off a "pungent, easily


recognizable smell" noticeable, in his experience, from a 

considerable distance. 

[155] Arbitrator Gilbert observed that he had a poor sense 

of smell, but that it might prove to be a useful exercise. He 

told counsel for the petitioners to raise the issue again once 

all the evidence had been heard, if counsel still felt that a 

visit was warranted. 


[156] Counsel for the petitioners never raised the issue 

of a visit to Beechwood Park again in the proceedings before 

the arbitrator. Counsel has since deposed in an affidavit 

that he "saw no point" in renewing the application as there 

were time constraints to finish the hearing. 

[157] Rule 11.12 permits on-site inspections if the 

arbitrator so chooses. As the request was not repeated, 

Arbitrator Gilbert never had to decide the issue. He cannot 

be faulted for that. Instead, the arbitrator made the 

necessary findings of fact in the more traditional way by 

considering the evidence before him. I do not accede to this 

submission. 

Review of the Arbitrator's Findings of Fact 

[158] The balance of the petitioners' challenges relate to 

the fact-finding process and their criticisms of the


arbitrator's conclusions. As I have earlier set out, the RTA 

contemplates a simplified, expeditious hearing. The 

arbitrator was not required to hear evidence under oath, 

although he frequently did so when requested to by counsel for 

the petitioners. Pursuant to s. 55(1)(c) of the RTA, the 

arbitrator is entitled to receive either evidence or 

information that would not be admissible in a court 

proceeding. Subject to the over-riding requirement of 


fairness, the Act is otherwise very permissive as to how the 

arbitrator gathers necessary information. Nothing in the 

Rules of Procedure alters these fundamental factors. 

[159] I have reviewed the findings of the arbitrator to 

determine whether there was some evidence on which he could 

reasonably base his conclusion that there were smells 

associated with the petitioner's use of marihuana that 

adversely affected other tenants in the complex. I am 

satisfied that there was. While the petitioners are 

understandably upset at the result, the judicial review 

process does not afford the opportunity for a reconsideration 

of factual issues. 

[160] I decline to set aside the order of Arbitrator 

Gilbert. It follows from the foregoing that I agree with the


result obtained before Arbitrator Katz on review. I also 

decline to set aside that order. 

[161] I dismiss the proceedings brought under both 

actions. 

[162] Costs may be spoken to. 


“M.D. Macaulay, J.” 

The Honourable Mr. Justice M.D. Macaulay


APPENDIX A 

Residential Tenancy Act 

Notice of end of tenancy agreement — for cause 

36 (1) A landlord may, at any time, give the 

tenant a notice of the end of the tenancy 

agreement in accordance with subsection 

(2) if any one of the following events has 

occurred: 

(a) the conduct of the tenant, or of a 

person permitted in or on the 

residential property or residential 

premises by the tenant, has resulted 

in the enjoyment of other occupants 

in the residential property being 

unreasonably disturbed; 


... 

(f) the safety or other lawful right or 

interest of the landlord or other 

occupant in the residential property 

has been seriously impaired by an act 

or omission of the tenant or of a 

person permitted in or on the 

residential property or residential 

premises by the tenant; 

... 

(h) 

the tenant has breached a reasonable 

material term of the tenancy 

agreement and has failed to rectify 

the breach within a reasonable time 

after receiving written notice to do 

so from the landlord; 

... 

Power and authority of arbitrator 

54 (4) An arbitrator may make any finding of fact 

or law that is necessary or incidental to


the making of a decision or order under 

this Act. 

(5) An arbitrator may do one or more of the 

following: 

(a) order a landlord or tenant to comply 

with the Act or a tenancy agreement; 

(b) make an order, with or without 

conditions; 

(c) make an interim order; 

(d) order substituted service of a 

notice, order, process or document; 


(e) set aside a notice to end a tenancy 

agreement, with or without 

conditions, if the arbitrator is 

satisfied, having regard to all the 

circumstances, that ending the 

tenancy agreement would create 

unreasonable hardship in relation to 

the conduct, breach or circumstances 

that led to the issue of the notice; 

(f) order that the tenancy ends on a date 

other than the date specified in the 

notice to end the tenancy. 

Procedure 

55 (1) In a matter before an arbitrator, the 

arbitrator 

(a) may conduct the hearing in the manner 

he or she considers necessary, 

subject to rules of procedure, if 

any, established by the director 

under section 50, 

(b) must make his or her decision on the 

merits of the matter and is not bound 

by legal precedent, 

(c) may receive and accept, on oath, 

affidavit or otherwise, the evidence


or information he or she considers 

necessary and appropriate whether or 

not the evidence or information would 

be admissible in a court, 

... 

(3) For the purposes of this section, a 

hearing may include a submission 

(a) made orally, including by telephone, 

or 

(b) 

made in writing, 

but another party to the hearing must be given 

an opportunity, at that or a later time and in 

the manner the arbitrator considers 

appropriate, to rebut the submission. 


... 

(6) A party to a hearing may be represented by 

an agent or by a barrister and solicitor. 

... 

Decision 

57 (3) Except as otherwise provided in this Act, 

a decision or order of an arbitrator is 

final and binding on the parties. 

... 

Application for review of 

arbitrator's order or decision 

59 (4) An order or decision of an arbitrator may 

be reviewed on one or more of the 

following grounds: 

(a) a party was unable to attend the 

original hearing due to circumstances 

that could not be anticipated and 

that were beyond his or her control;


(b) a party has new and relevant evidence 

that was not available at the time of 

the original hearing; 

(c) a party has evidence that the 

arbitrator's decision was obtained by 

fraud. 

Decision on application for review 

61 (1) At any time after an application is made 

under section 59 (1), the arbitrator 

designated to conduct the review may 

dismiss or refuse to consider the 

application for review for one or more of 

the following reasons: 


... 

(b) the application does not provide full 

particulars of the matter submitted 

for review; 

(c) the application fails to disclose 

sufficient grounds for review; 

(d) the application discloses no basis on 

which, even if the submissions in the 

application were accepted, the 

decision or order of the arbitrator 

would be set aside; 

... 

Review of arbitrator's order or decision 

62 (1) If the arbitrator decides that there are 

sufficient grounds to review the order or 

decision, the arbitrator may deal with the 

matter on its merits. 

(2) An arbitrator may review the order or 

decision based solely on the record of the 

original arbitration and any written 

submissions of the parties.


(3) The arbitrator may confirm or vary the 

original order or decision. 

(4) The arbitrator who conducts the review 

under this section must give a decision in 

writing and with reasons. 

Powers of arbitrator conducting review 

63 In the review of an arbitrator's order or 

decision the arbitrator who conducts the review 

has all the powers and duties of an arbitrator 

in an original arbitration. 


Residential Tenancy Office 

Arbitration Rules of Procedure 

1.1 Objective of these Rules 

The objective of these Rules of Procedure is to 

secure a consistent, efficient and just process for 

resolving disputes. 

1.2 Purpose of the hearing 

The purpose of an arbitration hearing is to enable 

the arbitrator to hear the tenant and landlord 

explain their separate versions of a dispute, to 

receive the evidence presented by each party and to 

make an impartial and binding decision to resolve 

the dispute. 

... 

3.4 Documents not filed with the application 

Copies of any other documents not filed with the 

application, but which the applicant wishes to 

present as evidence at the hearing, should be filed 

with the Residential Tenancy Office and served on 

the respondent as soon as possible, and at least two 

(2) days prior to the hearing. If the documents are


not served as required, the arbitrator must apply 

Rule 11.5. 

... 

4.1 Service of the respondent’s documents 

If the respondent wishes to dispute the application, 

the respondent should file copies of all documents, 

intended to be used to defend the respondent’s 

position, with the Residential Tenancy Office and 

serve the applicant with the documents as soon as 

possible, and at least two (2) days before the 

hearing. If the documents are not served as 

required, the arbitrator must apply Rule 11.5. 


... 

6.5 Criteria for granting adjournment 

Without restricting the authority of the arbitrator 

to consider other factors, the arbitrator must apply 

the following criteria when considering a party’s 

request for adjournment at the time of the hearing: 

(a) the views of the parties; 

(b) whether the purpose for which the 

adjournment is sought will contribute to 

the resolution of the matter in accordance 

with the objectives set out in Rule 1; 

(c) whether the adjournment is required to 

provide a fair opportunity to be heard, 

including whether a party has sufficient 

notice of the hearing; 

(d) the degree in which the need for the 

adjournment arises out of the intentional 

actions or the neglect of a party seeking 

the adjournment; 

(e) the possible prejudice to each party. 

...


8.1 Conduct of the arbitration hearing 

The arbitrator must conduct the hearing in 

accordance with these Rules of Procedure. 

... 

11.4 Evidence in advance 

The applicant and respondent should provide the 

arbitrator and the other party with copies of all 

documents and photographs (or clear reproductions) 

which are intended to be used as evidence, at least 

two (2) days prior to the hearing. Except for 

supporting expense receipts on a rent review, 

sufficient copies of any evidence not served in 

accordance with Rule 3.1, 3.4 or 4.1 must be brought 

to the hearing for the arbitrator and the other 

party. The arbitrator will decide whether to accept 

this evidence in accordance with Rule 11.5. 

Additional copies of supporting expense receipts are 

not required on a rent review application; however, 

the other party will be permitted to examine the 

receipts if they are taken into evidence. 


11.5 Consideration of evidence not provided 

to the other party in advance 

If the documents or other evidence are not served on 

the other party as required 

(a) the arbitrator must rule on whether the 

documents are relevant, 

(b) if the documents are relevant, the other 

party will have an opportunity to review 

and make argument that the matter be 

adjourned, and 

(c) the arbitrator must rule whether to 

adjourn, in accordance with Rule 6.5, and 

give a reason(s) for granting or refusing 

the adjournment.


11.11 Exclusion of witnesses and others 

Except as provided by the Residential Tenancy Act, 

witnesses and others who are not party to the 

hearing will be excluded from the hearing room or 

conference call until called to testify unless 

permitted to attend by the arbitrator. 

11.12 Inspections 

At the request of a party, or on the arbitrator’s 

own initiative, the arbitrator will decide whether 

to conduct an on-site inspection, and will appoint 

the date and time for the inspection. All parties 

are entitled to be present at the inspection. 

2003 BCSC 926 (CanLII)

Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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