The British Columbia Court of Appeal has decided that a landlord deserves a second chance and has dismissed an appeal by a tenant, affirming a lower court’s decision to grant a landlord another opportunity to be heard after he missed a critical court hearing1. The case, which involves a lengthy and procedurally complex dispute between Pawel Janik and his former landlord, Jerzy Zagrodzki, underscores the legal principles that allow for the reconsideration of court orders made in a party’s absence, provided that absence was not a deliberate act of default. The unanimous decision from the three-judge panel means the underlying legal battle over an eviction order will return to the Supreme Court of British Columbia for a full hearing on its merits.
The origins of the legal conflict trace back to January 28, 2023, when the Residential Tenancy Branch issued an order evicting Mr. Janik from his rental home for failure to pay rent. The RTB also ordered Mr. Janik to pay his landlord, Mr. Zagrodzki, a total of $3,700 for unpaid rent and associated costs. Seeking to overturn this decision, Mr. Janik filed a petition in the Supreme Court of British Columbia on August 1, 2024, asking a judge to judicially review the RTB’s order. This process allows the court to examine the decision of a tribunal like the RTB to ensure it was made fairly and in accordance with the law. Both Mr. Janik and Mr. Zagrodzki have represented themselves without legal counsel throughout the entire court process.
What followed was a protracted series of court appearances that highlighted the challenges self-represented litigants can face when navigating the justice system. Before the petition for judicial review could be formally heard, court records show that the matter appeared on the court list on at least eleven separate occasions. Mr. Janik attended nine of these appearances, while Mr. Zagrodzki was present for four. On some dates, the case was struck from the list entirely because neither party appeared in court. This tangled history of scheduling and adjournments set the stage for the pivotal hearing that would become the focus of the appeal.
On April 14, 2025, Mr. Janik’s petition was scheduled to be heard by Justice Schultes in New Westminster. Mr. Janik appeared, but Mr. Zagrodzki did not. With the respondent landlord absent, Justice Schultes proceeded with the hearing. He granted Mr. Janik’s petition and issued an order remitting the entire matter back to the Residential Tenancy Branch for a brand new hearing. This decision, known as the “Schultes Order,” effectively nullified the original eviction and monetary award that had been granted to Mr. Zagrodzki. The order was formally entered into the court record the following day.
Upon learning of the decision made in his absence, Mr. Zagrodzki took immediate action. On April 16, 2025, just two days after the hearing, he filed an application to have the Schultes Order set aside. His central argument was that he had not been given proper notice of the April 14 hearing date and therefore had been denied his right to be heard. This new application came before another judge, Justice Harvey, on May 16, 2025. Justice Harvey was tasked with deciding whether to uphold the order made by his colleague or to effectively give Mr. Zagrodzki a second chance.
In his reasons, Justice Harvey treated Mr. Zagrodzki’s request as an application under Supreme Court Civil Rule 22-1(3), a specific rule that allows a judge to vary or set aside an order made when a party fails to attend a hearing. The judge noted that the legal test for such an application is similar to the test for setting aside a default judgment. This test requires the applicant to demonstrate three things: first, that their failure to appear was not due to wilful default or deliberate delay; second, that they applied to set aside the order as soon as was reasonably possible; and third, that they have a meritorious defence or at least a defence worthy of investigation.
Justice Harvey reviewed the evidence, which included a series of text messages exchanged between Mr. Janik and Mr. Zagrodzki on the day of the missed hearing. In the exchange, Mr. Janik expressed surprise that Mr. Zagrodzki was not in court. Mr. Zagrodzki replied that he had not received any notice of the hearing. When Mr. Janik suggested he could still make it, Mr. Zagrodzki explained that he was in Squamish and could not get to the New Westminster courthouse. Based on this exchange and Mr. Zagrodzki’s record of attending several previous court dates, Justice Harvey was satisfied that the landlord “genuinely did not know of the April 14th appearance” and was not guilty of any wilful default. He also found that the application was made promptly and that the original RTB decision provided a defence worthy of being heard. Consequently, Justice Harvey granted Mr. Zagrodzki’s application, set aside the Schultes Order, and directed the two parties to set a new, mutually convenient date to hear the judicial review petition.
Dissatisfied with this outcome, Mr. Janik appealed the decision to the British Columbia Court of Appeal. He raised three primary legal arguments. First, he argued that the legal doctrine of functus officio prevented Justice Harvey from interfering with the Schultes Order. This doctrine generally holds that once a judge has made a final decision, their authority over the matter is finished. Second, Mr. Janik contended that Mr. Zagrodzki lacked the legal standing to even apply for reconsideration because, at the time of the April 14 hearing, he had not yet filed a formal response to the petition. Finally, he argued that Justice Harvey made a “palpable and overriding error” by concluding that Mr. Zagrodzki’s failure to appear was not his own fault.
Writing for a unanimous Court of Appeal, Justice Iyer addressed and dismissed each of Mr. Janik’s arguments. On the issue of functus officio, the court clarified that Rule 22-1(3) is a recognized and necessary exception to that doctrine, specifically designed to address situations where an order is made in a party’s absence. Regarding the standing issue, the court found that while Mr. Zagrodzki had not filed a formal petition response, he had appeared in court on multiple prior occasions where directions were made requiring that he be given notice of future hearing dates. This court-ordered entitlement to notice gave him the standing to apply for relief when he claimed that notice was not properly provided.
Finally, the Court of Appeal considered whether Justice Harvey had erred in his factual finding that Mr. Zagrodzki’s non-attendance was not wilful. Mr. Janik pointed to an email from March 24, 2025, in which he claimed he notified Mr. Zagrodzki of the hearing date. The appeal court stated that even if this evidence had been before Justice Harvey, it would not be enough to overturn his conclusion. The standard for an appeal court to interfere with a lower court judge’s factual findings is very high. The court found that it was open to Justice Harvey, considering all the evidence including the confusing history of scheduling and the text messages, to find that the landlord’s non-appearance was not blameworthy. As there was no palpable and overriding error, the appeal court would not interfere with that finding. The appeal was dismissed, leaving Justice Harvey’s order in place. The dispute now returns to the Supreme Court, where the original petition for judicial review of the eviction can finally be heard with both parties present.
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