Zibrowski v. Nicolis, 2012 ABQB 236

Court of Queen ’ s Bench of Alberta Citation: Zibrowski v. Nicolis, 2012 ABQB 236 Date: 20120411 Docket: 1203 05073 Registry: Edmonton Between: Brad Zibrowski and Jodi Horb Respondents - and - Reshmika Nicolis and Shawn Russell Applicants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ I.

Introduction [ 1 ] This was an application to set aside, vary, and/or discharge the Residential Tenancy Order granted on the 30 th of March, 2012 to allow the Applicants to extend the time to vacate the house to April 10, 2012, since they require more time effect and to move to their new premises over the Easter long weekend upcoming. [ 2 ] In support of the application, the Applicant Shawn Russell deposed on April 2, 2012 that the Residential Tenancy Dispute Resolution Service ( “ RTDRS ” ) Order dated March 30, 2012 terminated the tenancy for the lack of payment of rent when due. However,

the Order required the delivery of vacant possession five days from the service of the order of all the tenants, and the Order was not served until April 2, 2012. It is alleged by the Applicants that the Landlord Jodi Horb had given the order originally to the Applicants 15-year-old daughter, who apparently misplaced the copy of the RTDRS Order. Irrespective of this the Applicants concede that the end of the tenancy according to the time of service of April 2, 2012 on the second occasion would allow the Applicants to remain in the premises only until April 7, 2012.

As a result of the long Easter weekend, the Applicants are seeking an extension until the end of the day on Tuesday, April 10, 2012. The Applicants submits that while they have secured a new residential premises for themselves and their seven children, they will not be able to take possession and effectively move out of the present premises until at least late on April 10, 2012. [ 3 ] This Application is strenuously opposed by counsel for the Respondents who points out that the Applicants have never paid any rent, and they owe $5000.00 in back rent currently.

When the Applicants applied at the end of January 2012 to rent the premises they indicated they were both employed, and that they would pay a $1700 security deposit and rent in the amount of $1700 commencing February 1, 2012. On February 1, 2012 the Applicants moved into the premises and provided a bank draft in the amount of $1500 for the February 1 rent, and a government cheque in the amount of $1000 for the security deposit. They advised that they would pay the remaining balance of $900 on February 16, 2012, which they never did.

On March 1, the Applicant advised the Respondent that he had “ lost his job, ” but that he was expecting his final cheque and would provide payment by March 9, 2012. [ 4 ] The Applicants were served with a Termination of Tenancy for Substantial Breach on March 2, 2012, affective March 24, 2012. No payment was received on March 9, 2012.

Although it was a term of the tenancy that the Applicants would be responsible for all utility payments, the Applicants never changed over the names on the utilities bills and the Respondent continued to receive invoices from the utility providers. [ 5 ] On March 23, 2012 the Applicant, Mr. Russell, advised that he had the cheque from his former employer and that arrangements could be made for delivery of the cheque on March 24. On March 24 the cheque of $3200.00 was dropped off by Mr.

Russell, the Applicant, but when the Respondents attended at a Bank of Montreal branch that was open on Saturdays, they were advised that they could not negotiate the cheque. The Respondents deposed that the Applicants knew that the cheque would not be negotiable and provided it on a Saturday morning to delay their moving out as the Applicants realized that the Bank of Montreal branch from where the cheque was drawn would be closed on Saturday. [ 6 ] On Monday, March 26, 2012 the Respondents again attended this time at the Applicants Bank of Montreal Branch and again they were unable to negotiate the cheque.

On March 26, 2012 the Respondents had filed a Landlord ’ s Application for Termination of Tenancy and Writ with the RTDRS, and a hearing was scheduled for March 30, 2012. On March 30, 2012 all parties attended the hearing at the RTDRS and the Tenancy Officer granted an Unconditional Order terminating the tenancy for the substantial breach of nonpayment of rent, requiring the tenants to vacate five days after service of the Unconditional Order after it was filed. [ 7 ] As discussed earlier on March 30, 2012 a copy of the filed order was provided to the Applicants 15-year-old daughter; on April 1the Respondent Mr.

Zibrowski attended at the rental premises and served another copy of the filed Unconditional Order. II. Conclusion [ 8 ] All the Applicants have provided the Court with on this application is an affidavit. Although they seek to set aside, vary, and/or discharge the Residential Tenancy Order granted the 30 th of March, 2012, they have never filed a Notice of Appeal. A Notice of Appeal and a Transcript are prerequisites for setting aside, varying, and/or discharging the Residential Tenancy Order granted in this manner as set out below from my decision in Herman v.

Boardwalk Rental Communities , 2011 ABQB 394 at para. 10 to 21 : - The Law 10 The Tenant's appeal is governed by the Residential Tenancy Dispute Resolution Service Regulation AR 98/2006 (the “ Regulation ” ). In making the Order under

Section 15, the Tenancy Dispute Officer can make any order so long as:

1. (

a) an Order that has been applied for is justified, the tenancy dispute officer shall make that order, or (

b) another Order that could have been applied for is justified, the tenancy dispute officer may make that other order. 11 In addition, the Regulation indicates that in order to appeal an order from the RTDRS, the Appellant must follow the provisions of

Section 23. The appeal is limited in scope to questions of law or jurisdiction. 23(1) Any party who is subject to an order of a tenancy dispute officer may appeal the order on a question of law or jurisdiction to the Court of Queen's Bench (

a) within 30 days after the order is given, by (

i) filing in the Court of Queen's Bench a notice of appeal setting out the grounds of appeal, and (ii) serving the notice of appeal on (

A) the respondent, (

B) the Dispute Resolution Service, and (

C) any other person that the Court of Queen's Bench directs (

b) by filing in the Court of Queen's Bench not later than 7 days after the last day for service on those persons served pursuant to clause (a)(ii) (

i) an affidavit of service of the notice of appeal, and a copy of a requisition to the Dispute Resolution Service for a transcript of evidence, together with (

A) a receipt for payment of the transcript at the expense of the appellant, or (

B) written confirmation from the Dispute Resolution Service that a transcript is not available.

(2) The appellant shall, within 3 months from the date the notice of appeal is filed, file with the Court of Queen's Bench a transcript of the evidence heard before the tenancy dispute officer unless (

a) the Court of Queen's Bench orders otherwise, or (

b) the Dispute Resolution Service has confirmed that a transcript is not available. 12 On hearing the appeal, the Court of Queen's Bench is limited to the evidence that was before the Dispute Resolution Service and no other evidence. The Court of Queen's Bench may confirm, vary, reverse or cancel the order of a tendency dispute officer: - 25(1) On hearing the appeal, (

a) no evidence other than the evidence that was submitted to the Dispute Resolution Service may be admitted, but the Court of Queen's Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the Dispute Resolution Service, and (ii) that are necessary for determining the question of law or of jurisdiction (

b) the Court of Queen's Bench may confirm, vary, reverse or cancel the order of the tenancy dispute officer

(2) If the Court of Queen's Bench cancels an order of the tenancy dispute officer, it may refer the matter back to the Dispute Resolution Service, in which case the Dispute Resolution Service must rehear the matter and deal with it in accordance with any direction given by the Court of Queen's Bench on the question of law or of jurisdiction.

(3) No member of the Dispute Resolution Service is liable for costs by reason or in respect of an appeal.

(4) If the Court of Queen's Bench finds that the only ground for appeal established is a defect in form or technical irregularity and that no substantial wrong or miscarriage of justice has occurred, it may deny the appeal, confirm the order of the tenancy dispute officer despite the defect and order that the order of the tenancy dispute officer takes effect from the time and on the terms that the Court of Queen's Bench considers proper. 13

Section 28 of the Regulation states: - Failure to comply 28 If an appellant fails to comply with the requirements of

section 23, the appeal shall be dismissed by the Court of Queen's Bench. Analysis The Effect of the Appellant's Failure to Comply With the Requirements Under the Regulation to Provide A RTDRS Transcript. 14

Section 23 of the Regulation indicates that any party who is the subject to an Order of a tenancy dispute officer may appeal the Order on a question of law or jurisdiction to the Court of Queen's Bench within 30 days from the date that the order is granted. In order to do so, they must file a Notice of Appeal setting out the grounds, serve that Notice of Appeal on the Respondent and the RTDRS. Further,

Section 23 requires filing not later than 7 days after the last day of service of the Originating Application: 1. An Affidavit of Service of the notice of appeal, and 2.

A copy of the requisition to the RTDRS for a transcript of evidence together with a receipt for payment of the transcript at the expense of the appellant or written confirmation from the RTDRS that a transcript is not available. 15 In addition, the appellant is required to file with the Court of Queen's Bench a Transcript of the evidence heard before the tenancy dispute officer within 3 months from the date that the Notice of Appeal is filed, unless the Court of Queen's Bench orders otherwise, or the RTDRS has confirmed that a transcript is not available. 16 The Procedure Card in this matter indicates that the only documents that have been filed are the Originating Application, the Affidavit in Support and the Order staying enforcement.

No copy of the Affidavit of Service of the Notice of Appeal nor requisition to the RTDRS for a transcript of evidence together with a receipt for payment or written confirmation that no transcript is available, were filed with the Court. 17 Furthermore, the Appellant did not comply with the Order granted by me as he failed to file or serve the transcripts. 18

Section 28 of the Regulation indicates a mandatory requirement that if the requirements of

section 23 are not complied with, the Appeal shall be dismissed by this Court. I conclude that the Tenant has failed to comply with the requirements of

Section 23 of the Regulation and the terms of my Order. 19 Pursuant to

section 25, the only evidence admissible in the instant appeal is the evidence that was before the RTDRS. This includes both the Application and the Transcripts, and the Transcripts are not before this Court. 20 The Application to the RTDRS was appended to the Tenant's Affidavit filed in support of his Appeal. However the onus is on

the Appellant to provide the court with the evidence that was before the Tribunal. Without further transcript from the hearing, only an incomplete analysis of the decision by the Tenancy Dispute Officer is possible. To make a decision without all of the evidence before the Tribunal, including the representations and admissions made by both the Landlord's representative and the Tenant/Appellant is an exercise fraught with problems which include requiring the Court to enter into the area of speculation as to what occurred at the RTDRS hearing and encouraging the improper rehearing of the case on appeal.

In many instances hearing such an incomplete appeal also represents a breach of the principles of natural justice since the parties do not know the case that has to be met. 21 Accordingly the lack of a filed Transcript is grounds alone to dismiss the Tenant's appeal as the Court does not have all of the evidence upon which the Order was made. [ 9 ] Irrespective of the fact that I could dismiss this Application to extend the time to vacate simply on the basis of the procedural deficiencies herein, the merits of the case and the Court ’ s discretion in this matter should also not be exercised in favour of the Applicants.

I discussed the general rules with respect to tenants applying for stay of an order issued by the Tenancy Dispute Officer under the RTDRS in Prestigious Properties Ltd. v. Kouba , 2006 ABQB 562 as follows: Analysis 7 While appeals are heard in this Court, it is clear from the Residential Tenancy Dispute Resolution Service Regulations 21 through 24 that certain procedures have to be followed: Binding nature of order 21 An order of a tenancy dispute officer is binding on the parties to the dispute unless it is set aside or varied on appeal.

Enforcement of order 22(1) An order made by a tenancy dispute officer may be entered in the Court of Queen ’ s Bench and on being so entered is enforceable in the same manner as an order of the Court of Queen ’ s Bench.

(2) An order made by a tenancy dispute officer does not take effect until it is entered under subsection (1) and served. Appeal 23(1) Any party who is subject to an order of a tenancy dispute officer may appeal the order on a question of law or of jurisdiction to the Court of Queen ’ s Bench (

a) within 30 days after the order is given, by (

i) filing in the Court of Queen ’ s Bench a notice of appeal setting out the grounds of appeal, and (ii) serving the notice of appeal on (

A) the respondent, (

B) the Dispute Resolution Service, and (

C) any other person that the Court of Queen ’ s Bench directs,

and (

b) by filing in the Court of Queen ’ s Bench not later than 7 days after the last day for service on those persons served pursuant to clause (a)(ii) (

i) an affidavit of service of the notice of appeal, and (ii) a copy of a requisition to the Dispute Resolution Service for a transcript of evidence, together with (

A) a receipt for payment of the transcript at the expense of the appellant, or (

B) written confirmation from the Dispute Resolution Service that a transcript is not available.

(2) The appellant shall, within 3 months from the date the notice of appeal is filed, file with the Court of Queen ’ s Bench a transcript of the evidence heard before the tenancy dispute officer unless (

a) the Court of Queen ’ s Bench orders otherwise, or (

b) the Dispute Resolution Service has confirmed that a transcript is not available. Hearing of appeal 24(1) The Court of Queen ’ s Bench shall (

a) hear and determine an appeal, and (

b) make an order.

(2) The decision of the Court of Queen ’ s Bench is final and cannot be further appealed. 8 There are no rules that I am aware of with respect to the actual appeal process in this Court, and this matter is being heard in regular morning chambers with some Affidavit evidence being provided by the Respondent landlord, and a combination of viva voce and Affidavit evidence by the Applicant tenant. 9 No formal notice of appeal has been filed in this matter, although the Affidavit filed in support of a stay order lists various grounds of appeal.

The tenant assumed that he was having his appeal heard before me on July 20, 2006. Given that he also has not filed a Notice of Appeal nor has he applied for his transcript of the evidence heard before the tenancy dispute officer, I decline to hear his appeal. The tenant must file a Notice of Appeal setting out his grounds of appeal in more detail, and apply for a transcript. 10 Under Regulation 23(1) an appeal from the tenancy dispute officer is only on a question of law or on a 4uestion of jurisdiction.

The entry of new evidence, and this Court ’ s decision on appeal are further clarified by Regulation 25 which reads as follows: 25(1) On hearing the appeal, (

a) no evidence other than the evidence that was submitted to the Dispute Resolution Service may be admitted, but the Court of Queen ’ s Bench may draw any inferences (

i) that are not inconsistent with the facts expressly found by the Dispute Resolution Service, and (ii) that are necessary for determining the question of law or of jurisdiction

and (

b) the Court of Queen ’ s Bench may confirm, vary, reverse or cancel the order of the tenancy dispute officer.

(2) If the Court of Queen ’ s Bench cancels an order of the tenancy dispute officer, it may refer the matter back to the Dispute Resolution Service, in which case the Dispute Resolution Service must rehear the matter and deal with it in accordance with any direction given by the Court of Queen ’ s Bench on the question of law or of jurisdiction.

(3) No member of the Dispute Resolution Service is liable for costs by reason or in respect of an appeal.

(4) If the Court of Queen ’ s Bench finds that the only ground for appeal established is a defect in form or technical irregularity and that no substantial wrong or miscarriage of justice has occurred, it may deny the appeal, confirm the order of the tenancy dispute officer despite the defect and order that the order of the tenancy dispute officer takes effect from the time and on the terms that the Court of Queen ’ s Bench considers proper. 11 The tenant will likely have a problem then with respect to his attempt to introduce new evidence, and with respect to his attempt to argue about the tenancy dispute officer ’ s findings of fact given Regulation 25(1)(a). 12 Regulation 26 specifies that the commencement of an appeal does not stay the order being appealed, unless this Court on application stays enforcement or proceedings of the order pending the appeal. 13 As such, the Applicant must satisfy the traditional tri-partite test in order to obtain a stay. 14 With respect to the first part of the test as to whether there is a serious question to be decided on the appeal, it does not appear that the present grounds for appeal such as they are involve an error of law or an error of jurisdiction.

New evidence may not be admitted in the proceedings, although I am prepared to accept that the grounds of appeal have not been fully developed by the Applicant at this point. 15 As for the second part of the test, irreparable harm, the miscalculation as to the amount of rent owed by the tenant to the landlord complained of does not constitute irreparable harm. The set-off claims being advanced by the Applicant for his expenses as a result of being inconvenienced, and the tenant ’ s argument as to the unsatisfactory nature of the condition of the premises does not justify the tenant unilaterally withholding rent.

The tenant must first seek authority to abate rental payments. 16 In any event, the tenant can still take proceedings by filing a civil claim for other remedies not dealt with by the tenant resolution officer ’ s Order arising out of this tenancy, and no additional cost on or before August 30, 2006 by filing a claim in Provincial Court.

Accordingly there is no irreparable harm in not granting the stay as the tenant can still make his claim. 17 As for the balance of convenience test, granting of the stay until the appeal can be heard would essentially allow the Applicant tenant to remain rent free in the premises for up to 90 days from the date the Notice of Appeal is filed, given that the tenant has that period of time under Regulation 23(2) to obtain and file a transcript of the evidence heard before the tenant dispute officer. Without that transcript, it is not likely that this Court would hear and determine an appeal on the record.

This delay affects the economic viability of the Respondent landlord tying up a suite that he cannot collect rent on. 18 Furthermore if the conditions are as unsanitary and unliveable as the Applicant tenant submits they are, allowing him to remain in these unhealthy premises would not be in his best interests either. Conclusion

19 Accordingly I conclude on the tri-partite test that there does not appear to be a serious question to be decided on this appeal at this time based on the present grounds of appeal.

Even if those grounds of appeal eventually deal with an error of lav or an error of jurisdiction by the tenant resolution officer as required by Regulation 25(1)(a), I further conclude that there is no irreparable harm as the tenant can still sue for his damages, and the balance of convenience lies in effecting the Order of possession. 20 Accordingly the stay application is denied, and the tenant will immediately vacate the premises. 21 Counsel for the Respondent seeks solicitor/client costs on this appeal, which he quantifies conservatively at $750.00.

The tenant was already ordered to pay the landlord $200.00 for the costs of the Residential Tenancy Dispute Resolution hearing.

The written tenancy agreement contemplates solicitor/client fees incurred by the landlord in enforcing the terms of the agreement including obtaining possession of the premises. 22 Given that the Applicant tenant is self-represented, and given the recent nature of the appeal process with respect to the new residential tenancy dispute resolution services which has lead to some confusion in the appeal process, I will not award any costs against the tenant with respect to this application. 23 As the stay request is dismissed, the tenant will deliver up immediate possession of the premises to the landlord. [ 10 ] Applying the tri-partite test in the present circumstances, I conclude that any stay would be an equitable remedy, and I am not satisfied that the Applicants have come to court with “ clean hands ” given their conduct in this matter.

Additionally, the Applicants have alternatives for the Easter long weekend which they should exercise rather than trying to remain in the subject premise. For example, although they are a larger family, they can rent hotel or motel accommodations for the weekend until they can complete their move.

On the balance of convenience test as well, the Applicants failed because the Respondents need to clean up the premise and ready it for re-rental, and a four-day delay will make it such that the Respondents are not able to ready the premises for viewing and re-rental for the end of April/beginning of May. [ 11 ] Accordingly in all of the circumstances, I decline to grant the Applicants request to extend their stay until April 10, 2012 in the premises. They will be required to vacate as of midnight on Good Friday, April 6, 2012. Heard on the 04 th day of April, 2012.

Dated at the City of Edmonton, Alberta this 11 th day of April, 2012. D. Lee J.C.Q.B.A. Appearances:

Reshmika Nicolis and Shawn Russell Self Represented Applicants Michelle Andresen for the Respondents