Prairie Properties Management Corp v McIntyre, 2016 ABQB 328

Court of Queen ’ s Bench of Alberta Citation: Prairie Properties Management Corp v McIntyre, 2016 ABQB 328 Date: 20160615 Docket: 1603 07611 Registry: Edmonton Between: Prairie Properties Management Corp. Applicant - and - Lisa McIntyre Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] On June 3, I granted judgement against Ms. McIntyre for arrears of rent. [ 2 ] Both parties sought costs. Prairie sought $500 in costs as the successful party. Ms.

McIntyre sought $650 for lost wages, which she alleged resulted from her having to attend court numerous times to correct errors made by Prairie in the calculation of her arrears. I reserved judgement on costs pending a review of the file. These are my reasons on the costs issue. [ 3 ] Ms. McIntyre entered into a tenancy agreement with Prairie effective September 14, 2015, for a fixed term of one year, to

end August 31, 2016. Ms. McIntyre fell behind in rent payments shortly thereafter, which resulted in an appearance before the Residential Tenancy Dispute Service (“RTDRS”) on December 17, 2015. On that day, the parties consented to a repayment

schedule that would have Ms. McIntyre repay her arrears and continuing rent obligations in full by April 1, 2015. The RTDRS order also provided that, if Ms. McIntyre defaulted on the repayment schedule, Prairie could issue a Notice of Default within fourteen days of the breach, to evict Ms. McIntyre with a minimum 48 hours’ notice. Costs of $75 were awarded in favour of Prairie, and were included as part of the repayment schedule. [ 4 ] Ms. McIntyre continued to experience difficulties meeting the repayment

schedule over the next few months. Prairie issued a Notice of Default at Ms. McIntyre’s residence on April 30. This was after the 14-day period to file the Notice of Default had passed. This is what led to the litigation that is now before this Court. Procedural History [ 5 ] On May 4, Ms. McIntyre filed an Application and supporting affidavit seeking: to vary the RTDRS Order; to abridge the time to serve the Application; and an order compelling Prairie to accept a late payment of $600, representing the outstanding balance of the April rent. On May 5, Ms.

McIntyre filed an Affidavit of Service indicating that she had sent a copy of the Application to Prairie via email. [ 6 ] Simpson J heard Ms. McIntyre’s application in Justice Chambers on May 5, one day after the Application was filed and served. Ms. McIntyre appeared in Court; Prairie was not present. Simpson J concluded that the service/notice was insufficient.

For that reason, he adjourned the hearing to May 12 and ordered that any further action under the Notice of Default be stayed until noon on May 13. [ 7 ] On May 5, Prairie filed a separate Application and supporting affidavit, requesting that the Notice of Default be enforced notwithstanding that it was issued late. [ 8 ] On May 6, both Ms. McIntyre and counsel for Prairie appeared in Masters Chambers to speak to Prairie’s May 5 Application. During the hearing, counsel for Prairie confirmed that its Application had been filed after it received notice of Ms. McIntyre’s Application.

Counsel did not become aware of the hearing before Simpson J until after it had occurred. The Master found that he could not disturb the ruling of Simpson J, and ruled that the matter be adjourned sine die . [ 9 ] On May 12, the parties appeared before Topolniski J in Justice Chambers.

The Applications were adjourned by consent to May 19 to allow counsel for Prairie more time to review disclosure and obtain his client’s instructions. [ 10 ] On May 17, Prairie filed another affidavit in support of its Application, including additional supporting materials. [ 11 ] On May 19, the parties appeared before Erb J in Justice Chambers. The parties disagreed as to how much Ms. McIntyre had paid and what arrears remained.

The parties consented to an order providing Prairie with vacant possession of the leased premises on June 29 and the matter was adjourned until June 3 to determine the amount of rental arrears. [ 12 ] On June 3, 2016, the parties appeared before me in Justice Chambers. Again, the parties did not agree on how much rent had been paid to date and how much remained to be paid. Counsel for Prairie agreed to accept Ms. McIntyre’s lower amount (which I note from a review of the file, did not include the costs awarded by the RTDRS). I therefore ordered Judgment for $3,525.

Analysis and Decision [ 13 ] My review of the file leads me to conclude that there is little to support Ms. McIntyre’s suggestion that she had to appear in Chambers several times due to Prairie’s actions. The initial delay in her Application, and the need to have it adjourned, arose from her failure to provide adequate notice to Prairie. [ 14 ] The necessity for her to appear at Prairie’s Application arose because she failed to adhere to the terms of the repayment

schedule she had agreed to, entitling Prairie to take action to enforce its power of eviction. [ 15 ] Arguably, Ms. McIntyre’s Application ought to have been brought in Masters Chambers, just as Prairie’s was, since the Masters have jurisdiction over landlord and tenant matters and the Chief Justice and Associate Chief Justice have directed that they hear such matters wherever possible: s 9(1)(

a) of the Court of Queen’s Bench Act and Notice to the Profession #2015-07. By commencing her proceedings in Justice Chambers and obtaining an order there, when the parties appeared before the Master he felt that he was not in a position to proceed in light of Justice Simpson’s order. It cannot be said that any of these actions arose as a result of, or were in any way connected to, mistakes or improper conduct by Prairie. [ 16 ] Nor am I satisfied that any subsequent actions were required because of Prairie’s miscalculation of the rental arrears amount.

When they appeared before me, the parties still disagreed as to the amount of the arrears. Rather than seek to establish the higher amount through further proceedings, Prairie agreed to accept Ms. McIntyre’s calculation. It is not necessary for me to determine whether it did so in order to avoid additional costs and delay, or for some other reason. [ 17 ] Ms. McIntyre provided me with no legal authority in support of her request that I order that she be reimbursed for lost wages. Furthermore, she provided me with no evidence that she had suffered lost wages in that amount, or any amount.

In addition, all of these proceedings were necessitated by Ms. McIntyre’s default in paying her rent and her failure to comply with the repayment

schedule to which she had agreed. Finally, Prairie was largely successful in these proceedings. For all of these Reasons, I see no basis upon which to award Ms. McIntyre costs, (whether for purported lost wages or otherwise) or to deny Prairie costs as a successful litigant.

[ 18 ] I therefore award costs to Prairie in the requested amount of $500. Heard on the 3 rd day of June, 2016. Dated at the City of Edmonton, Alberta this 15 th day of June, 2016. D.L. Shelley J.C.Q.B.A. Appearances: Daniel J. Mol Daniel J. Mol Professional Corporation for the Applicant Lisa McIntyre Self-Represented Litigant