By Breen Ouellette

This week, the City of Vancouver announced that it will appeal the ruling of B.C. Supreme Court Justice Karen Douglas to invalidate the city’s vacancy-control bylaw. The bylaw was challenged in court by two owners of single-room occupancy (SRO) hotels. In addition to quashing the vacancy-control bylaw, Justice Douglas ordered that rent rolls created by the city must be destroyed. This city will also seek a stay of the order to destroy the rolls pending the outcome of the appeal.

Here's the problem: B.C.’s provincial rent control has a significant loophole. Landlords are unrestricted in the amount that they can raise rents on a rental property when one tenant moves out and another moves in.

In Vancouver today, changes in personal circumstances require a renter to choose between much higher rents or remaining in an apartment that doesn’t meet their needs. While campaigning during the last two months, I've spoken with dozens of people facing massive rent increases on a new property because they have married, had a baby, or taken a new job in another part of town, or because their adult children are moving out, they are retiring, or they need to transition to assisted living.

It’s as if the system has been gamed to take advantage of our changing needs as human beings.

Landlords are playing that game, and some of them are playing dirty. Renters are increasingly evicted on the pretense of renovation, and some are being evicted illegally. Two different couples told me that they were recently issued eviction notices for having children.

They know these evictions are illegal, but they don’t have the time or resources to fight their landlord’s lawyer at the Residential Tenancies Branch. Both couples have decided to leave Vancouver. It’s too dangerous to risk sudden eviction and homelessness when you have a baby to nurture and protect.

The vacancy loophole is decimating the demographic diversity of our city. We are all paying for it, and the price will only rise if we fail to address it.

Vancouver city council took a first step in December 2021, when the SRO vacancy-control bylaw was passed. It closed the provincial loophole by limiting the amount that SRO landlords can raise the rent between tenancies. The bylaw operated through the city’s business-licensing power and required SRO landlords to submit the current rents on all their units to a city-managed rent roll. The roll was used to enforce compliance with the bylaw.

The appeal of the decision to invalidate Vancouver’s SRO vacancy control bylaw is crucial to the future of our city.

As a humanitarian concern, SROs are understood to be a last resort before homelessness for 4,000 low-income renters in Vancouver. SRO vacancy control is necessary to protect these low-rent units from speculative investment. Each unit that is lost to rising rents translates into one more person experiencing homelessness. The decision to quash the SRO vacancy-control bylaw threatens to accelerate homelessness in our city.

As a matter of proven outcomes, this year showed that the City of Vancouver is the most appropriate level of government to implement this policy. SRO vacancy control was in effect for only nine months, but during that time the city proactively worked with tenants and most landlords to make the policy work—and it did work.

Town halls were held to consult with vulnerable tenants. SRO landlords were quickly educated on the policy, and within a short time the landlords provided their rent rolls to the city.

Crucially, the city ensured that landlords followed the policy without placing significant onus on vulnerable tenants. The city avoided this common criticism of the current RTB process.

The last year was a case study demonstrating the legal concept of “subsidiarity”, which means that courts should appreciate that law-making and implementation are often best achieved by the level of government that is closest to the citizens affected, and accordingly most responsive to their needs, local distinctiveness, and population diversity. My hope is that the B.C. Court of Appeal will afford more weight to this principle identified by the Supreme Court of Canada.

Finally, as a matter of city jurisdiction, the decision to invalidate the SRO vacancy-control bylaw is based on a number of narrow technical interpretations of the bylaw, parts of the Vancouver Charter, and parts of other provincial legislation. One of those interpretations contrasted the Vancouver Charter with the Community Charter that regulates other municipalities in BC.

In 2020, the B.C. Court of Appeal upheld a ‘renoviction ban’ enacted by the City of New Westminster. That city regulated landlords through its municipal business powers under the Community Charter. This would seem to imply that Vancouver could also regulate the rental market. Vancouver City Council certainly thought so.

However, Vancouver’s SRO vacancy control bylaw was noted by Justice Douglas as being enacted under the Vancouver Charter, not the Community Charter. Justice Douglas accepted a technical argument from the two SRO landlords, who claimed that differences between the Vancouver Charter and the Community Charter meant that the province intended to exclude Vancouver from this type of regulation. From a high-level view, the decision to quash Vancouver’s SRO vacancy control bylaw suggests that the province intended other B.C. municipalities to have more powers than Vancouver.

You read that correctly. The decision implies that the province intends its largest city to have fewer powers than other cities.

Most people would assume the opposite. The province enacted the Vancouver Charter to enable its largest city to utilize greater powers to address correspondingly larger and more complex challenges. I have yet to hear anyone argue that the City of Vancouver should be more restricted in addressing rising rents or homelessness than other B.C. municipalities.

Even in the event that the B.C. Court of Appeal upholds this decision, it will become incumbent upon the province to clarify its true intention, and it can do that by revising the Vancouver Charter to eliminate any possibility that Vancouver should be hamstrung where other cities are not.

The City of Vancouver has rightly appealed this B.C. Supreme Court decision. Vancouverites deserve a city council with the power to make decisions about how businesses operate within our city, including vacancy control for SROs now and vacancy control for every rental property after the October 15 civic election.