Filing a judicial review does not automatically put your eviction on hold. Unless you apply for, and obtain, a court order saying that your eviction is put on hold, your landlord can go ahead with the eviction while your judicial review is pending.
In appropriate cases, a judge of the BC Supreme Court may decide to put an eviction on hold temporarily while a judicial review is pending. To do this, the court makes an order called an “interim stay”.
To ask the court for an interim stay of an order of possession, you need to:
- File an application for judicial review of the order of possession and the decision that it is based on; and
- Make a court application asking for an interim stay.
It is up to the judge to decide in each case whether or not to order an interim stay. When a judge does decide to put an eviction on hold, s/he usually specifies that the interim stay is in effect only until a certain specific date or only until the court has dealt with the full application for judicial review.
You only need to apply for an interim stay if the Residential Tenancy Branch (RTB) decision you want to challenge relates to an eviction or some other urgent issue. If the RTB decision doesn’t deal with an urgent issue, there is no need to apply for an interim stay. For example, if your eviction date is far enough in the future that your judicial review can be heard before the eviction date, you may not need an interim stay.
If the court gives you an interim stay, it will be important to set the hearing of your judicial review for sometime before the interim stays runs out. Otherwise, your landlord will be able to evict you once the interim stay runs out.
Because your interim stay application will be tied to your judicial review, it is very important to seriously consider whether filing a judicial review is the right choice in your case. You need to consider whether there is a realistic chance that you will succeed on your application for interim stay and in your judicial review. The section Getting Started on a Judicial Review has more information on what kind of errors you are most likely to succeed with on judicial review.
You also need to consider whether pursing an interim stay and a judicial review are worth the risks and potential costs involved. Keep in mind that if you lose your application for an interim stay, or even if you get an interim stay but then lose your judicial review, you risk losing any control over how and when you move once the court makes a decision. It may be possible for your landlord to hire a court bailiff very quickly to remove you from your rental unit.