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‘Too-young’ Vancouver Island woman successfully challenges eviction

Zoe Nagler, 46, had been given notice after living in seniors complex for six years
Zoe Nagler has lived in this one bedroom suite in d’Esterre Gardens for the past six years but received an eviction notice in January because she is too young to live in the senior’s facility. Nagler has cerebral palsey. Photo by Jolene Rudisuela

Zoe Nagler is relieved to be able to stay in her one-bedroom suite in d’Esterre Gardens after receiving an eviction notice in January.

The 46-year-old with cerebral palsy has been living in d’Esterre Gardens, a low-income housing facility managed by d’Esterre Seniors Citizens Society, for the past six years. Though the facility’s minimum age requirement is 65, or 55 for people with disabilities, Nagler was originally allowed tenancy due to her disability. However, in January, the society tried to evict her due to her age.

READ MORE: Disabled d’Esterre Gardens residents evicted for being too young

Nagler contested the eviction in mid-March in front of an arbitrator, who ruled the society had no grounds to evict her.

“It’s a great relief because there is nothing for someone on my budget,” said Nagler. “I only get the shelter allowance for rent – $375 a month and that’s not a rent that exists anymore.”

With the eviction date looming ever closer at the end of March, Nagler said she would have had to move in with her mother if the decision was not in her favour.

Following the arbitration hearing on March 14, the arbitrator ruled in favour of Nagler, outlining various reasons, including, “… the tenancy agreement does not authorize the Landlord to end the tenancy if the tenant ceases to meet the age requirement.”

The Residential Tenancy Branch determined that the basis for the eviction – section 49.1 of the Residential Tenancy Act – did not apply in this circumstance as Nagler was not living in a subsidized rental unit. While d’Esterre Gardens has been affiliated with B.C. Housing previously, their agreement expired two years ago.

The decision also detailed that Nagler had never been required to demonstrate that she met the age requirement, and it would be unfair to evict her after she had already been allowed to live in the unit for six years.

Nagler’s lawyer, Joe Marrie with Finkelstein’s Lawyers and Notaries, took the case on pro bono after the original article was published in The Record at the end of February.

“From the start, something seemed wrong about it, and people don’t always know how to argue their rights in these situations,” said Marrie. “I thought it would be really really crummy to read about Zoe Nagler being put out on the street over something that seemed like it was totally unfair to do.

“My impression is that the society is doing its best to protect what it perceives as its interests.”

Teona Sparkes, the second underage resident who received an eviction notice due to her age, did not pursue an arbitration hearing and has decided to move on from the housing complex.

D’Esterre Senior Citizens Society denied a request for comment.

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