Background
Habitat for Humanity Victoria accepted Erin Booth into its affordable-homeownership program and permitted her to occupy a newly built house under an Early Occupancy Agreement. The agreement required her to satisfy the program’s conditions by a specified date, provided that some monthly payments would count as a non-refundable deposit toward a purchase, and stated that the parties did not intend to create a tenancy under British Columbia’s Residential Tenancy Act.
After Booth ceased to meet the program’s financial-eligibility requirements and did not leave the property, she sought a Residential Tenancy Branch determination that her occupancy was a tenancy. An arbitrator found that the Act did not apply. A reviewing judge set aside that decision as patently unreasonable, but the Court of Appeal allowed Habitat’s appeal in 2026 BCCA 8, reinstating the RTB’s decision that it lacked jurisdiction. Habitat then sought its costs in the appeal and the court below.
The Court’s Holding
The Court granted Habitat’s costs application. Because Habitat succeeded on appeal and its position from the outset was ultimately confirmed, the usual rule entitled it to costs both in the Court of Appeal and in the court below. Booth bore the burden of establishing a principled reason to depart from that rule and did not do so.
The Court rejected Booth’s argument that the disputed jurisdictional issue and Habitat’s broader institutional interest in protecting its housing model justified making each party bear its own costs. Booth initiated the RTB proceeding, and the fact that the issue affected Habitat’s broader interests was not exceptional because many appeals protect an appellant’s wider interests. Although the costs award imposed a financial burden on Booth, the Court did not characterize it as an unfair financial penalty and confirmed Habitat’s entitlement to costs at both levels.
These supplementary reasons were issued by the majority of the division under s. 40(2)(b) of the Court of Appeal Act because they post-dated Justice Grauer’s retirement.
Key Takeaways
- An appellant whose appeal succeeds and whose original position is confirmed will ordinarily receive costs in both the appellate court and the court below.
- The party seeking a different costs order must identify a principled basis for departing from the usual rule.
- A case’s importance to the successful party’s broader institutional interests does not, without more, justify denying that party costs.
Why It Matters
The decision reinforces that success on appeal generally carries costs consequences at both levels when the appeal vindicates the successful appellant’s position throughout the litigation. A financial burden on the unsuccessful party and the successful party’s systemic interest in the dispute were not enough on this record to displace that rule.
The ruling is confined to costs following the earlier merits decision. It leaves intact the Court’s reinstatement of the RTB determination that the Residential Tenancy Act did not apply to Booth’s occupancy arrangement.