A retirement community in Langford is being taken to small claims court after several Residential Tenancy Branch disputes have escalated.
One of the complainants shared their story with CFAX, detailing a dispute over a security deposit where the Residential Tenancy Branch ordered Cherish at Central Park to pay up. But the CEO of the retirement community contends her business should be exempt from the Residential Tenancy Act as a new category of senior housing.
The question of how housing that caters to seniors fits into residential tenancy rules has become front and centre since the province’s Seniors Advocate raised concerns about rental protections for seniors earlier this month.
Andrew Jackson is the son of the Winnifred Jackson who lived at Cherish at Central Park from Sept. 15, 2021 to Aug. 28, 2023. He said that this nearly year-long saga is clear example of a senior housing provider taking advantage of older adults' tendency to not want to make a fuss.
"For the $1,200-$1,500 that Cherish decides to withhold, it is a long process to get it back," Jackson told CFAX. "I don't know what the proper way of holding bad actors like Cherish to account is. It's really slow going through the proper channels."
After Winnifred's partner passed away, she wanted to downsize. According to documents shared with CFAX, Winnifred Jackson-Andrew's mother-provided Cherish a security deposit of $4,750.00. When she moved out last August, she received a portion of the security deposit back, and interest, but Cherish withheld $1,280.14.
Ultimately, the RTB arbitrator's decision stated that under the Residential Tenancy Act, Winnifred was owed double her security deposit minus what was returned with interest. The order also includes some funds to account for Winnifred having been told to move out two days earlier than she had initially made arrangements for, totalling at $6,446.66.
Cherish ignored Jackson's demand letter to complete the payment within 30 days, so he sought an enforcement order from Small Claims Court, he said.
According to Jackson, the judge at his mother's hearing recognized the RTB arbitrator's authority over this case and decided to give Cherish time to present its financial information before sorting out the court order. Jackson expects that the judge will tell Cherish to commit to paying the amount owed, but remains concerned that the process could keep dragging on.
Jackson shared Winnifred's lease with CFAX, which includes a clause stating that Cherish is exempt from the Residential Tenancy Act because "Central Park is a health care business which provides accommodations and both hospitality services and personal health care services."
The Act includes a provision that landlords and tenants cannot contract out of the legislation applying. However, it also includes an exemption for housing-based health facilities, such as registered assisted living facilities and long-term care. Cherish CEO Micky Fleming said the exemption should also apply to her retirement community.
"This is my personal opinion: the Residential Tenancy Act is not designed to work with a business. We have 52 staff. It is way more than a basement suite or a remote landlord. Should there be some guidance for this industry? Oh yeah, I don't have any issue with that at all. But age in place is something new," Fleming said.
Fleming says age in place housing is recognized by the feds, but not the provincial government. She believes there should be a new provincially-recognized category for this form of senior housing. While Cherish provides hospitality and some support services, the licensed health care providers in the building are all brought in on contracts. Fleming said Cherish is not a registered assisted living facility, because many seniors have told her that they do not want to live in one.
Fleming said Cherish's approach to damage deposits is based off of industry knowledge of what is required to restore a unit back to the quality that the company promises its customers.
Last Thursday, seniors advocate Dan Levitt released a statement saying that the ministry of housing has confirmed that independent living units are subject to the Act. Cherish is not a registered assisted living facility, but its CEO says it is not a traditional rental provider either.
Fleming told CFAX that Winnifred Jackson's dispute with Cherish is not necessarily representative of the several pending cases that have escalated to small claims, because they are all different. She added that some former residents who are currently engaged in legal actions owe Cherish money, but said that Winnifred Jackson’s case does not fit into that category.
Fleming did not contest that Cherish did not respond to the Jacksons' demand letter to pay the amount the RTB said Cherish owed. She said that Cherish plans to initiate some sort of legal proceeding to challenge the RTB’s jurisdiction over these disputes.
CFAX asked Fleming if she felt like she had enough guidance on the rules which apply to Cherish’s business model. Fleming said she felt confident she understood the law as a CPA. She also said that if Cherish was overstepping by acting as an assisted living facility in practice, the Ministry of Health would have told Cherish to register as an assisted living facility when representatives checked out the building in response to a separate complaint.
Cherish’s payment hearing about Winnifred Jackson’s RTB order is scheduled for Sept. 17.