Just because you can’t find a city bylaw doesn’t mean you can ignore it.
That’s what one businessman learned the hard way after he tried to run a short-term rental business out of a leased Burnaby house contrary to bylaws and then tried to sue the city and the property’s owners when it didn’t work out.
Tong Heintz Sun signed a one-year tenancy agreement with Liang Zhi Duan for a five-bedroom house she owns with her husband, De Heng Luo, at 8050 Kaymar Dr. just south of the Ocean View cemetery.
Duan knew Sun would be using it for short-term rentals, and the tenancy agreement had a clause allowing it, according to an Aug. 27 B.C. provincial court ruling.
“She said Mr. Sun told her that the City of Burnaby permitted short-term rentals and that he had been in the short-term rental business for years,” the ruling said. “Mr. Sun said he was studying law, understood the policies of the City of Burnaby and could be trusted.”
But barely three months into the lease, on April 3, 2019, Luo got a letter from the city saying online ads showed the residential-zoned property was being used as short-term or vacation accommodations contrary to the city’s zoning bylaw.
The letter said the short-term rentals had to cease immediately or the owners would face a $400 fine.
Duan and Luo then told Sun he had to stop using the property for short-term rentals, and the couple’s property manager Green Team Realty Inc. entered into discussions about terminating the lease.
Sun also failed to pay the following month’s rent, according to the ruling, so Duan sent him a 10-day eviction notice as well.
Sun fought back, launching a $35,000 lawsuit in May 2019 against Duan, Luo, Green Team Realty and the City of Burnaby for breach of contract leading to loss of rental income and money he said he spent on furniture for the house.
The claim against the city was dismissed before the trial after an application from the city successfully argued the suit had no prospect of success, according to the ruling.
Sun said he’d searched to see what bylaw may have been broken, and, when he didn’t find one, argued the operation of the short-term rental was legal, the ruling said.
That argument didn’t convince B.C. provincial court Judge Wilson Lee.
“An inability to locate the relevant legislation does not excuse a person from obeying the law,” he stated in the ruling. “I was, in fact, able to locate the relevant bylaws with a quick search.”
Sun had also been operating his business without a business licence, according to the ruling.
In the end, Lee dismissed Sun’s claim for breach of contract because the contract was illegal.
“Mr. Sun’s claim is for compensation flowing from his operation of a short-term rental business that he was operating contrary to City of Burnaby bylaws,” Lee explained. “If this court were to allow Mr. Sun’s claim, it would be sanctioning an illegal business and allowing Mr. Sun to profit from that illegal business. This court will not be used to support such a claim.”
Lee also dismissed a $30,000 counterclaim from Duan and Luo for legal costs and inconvenience, saying the small claims court had no power to make any award for legal fees or to order costs or reimbursement for inconvenience.
But Lee did order Sun to pay Duan $500 to cover some of her costs for a translator at court.
After the lunch break on the first day of the trial on Aug. 20, Sun simply didn’t show up for the rest of the day.
While the trial was scheduled for two days, matters might have wrapped up in one day or by lunchtime the following day if he had not disappeared, saving the court’s resources and Duan’s cost for a translator, according to Lee.
“The failure to attend court when scheduled is a serious waste of judicial resources and a waste of time for all others,” Lee said.
