Maki v Chmilar, 2018 ABQB 974

Court of Queen’s Bench of Alberta Citation: Maki v Chmilar, 2018 ABQB 974 Date: 20181128 Docket: 1803 21981 Registry: Edmonton Between: Robin Maki Applicant - and - Marvin T Chmilar and Roxanne E Chmilar Respondents _______________________________________________________ Reasons for Decision of the W.S. Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is a landlord’s application to terminate a tenancy. [ 2 ] This application originally came to court November 16, 2018. [ 3 ] I originally granted the order as it appeared to be unopposed. The Chmilar’s were not in attendance.

[ 4 ] The Chmilar’s showed up late. They had been delayed because of the weather. By that time the applicant’s lawyer had left. I set aside the original order and required the parties to re-attend. [ 5 ] The landlord served a notice to vacate on the tenants, which reads in part: I am asking that you leave 4902 52 nd Street, Radway, Alberta as I require possession by October 31, 2018. You may pay the rent directly to me or sent it by mail. ... Robin Maki [ 6 ] The Chmilar’s originally had a year lease. When that expired it went month-to-month. This is a periodic tenancy as defined by section 1(1)(

i) of the Residential Tenancies Act , RSA 2004, c R-17.1.

Section 5 of the Act provides for notice of termination of a periodic tenancy.

Section 6 indicates: 6(1) A notice under this Part from a landlord to a tenant to terminate a periodic tenancy is of no effect unless the termination is for one or more of the prescribed reasons or for the reasons set out in

section 11 or 12. (emphasis added)

Section 11 has to do with termination of the tenancy of an employee.

Section 12 deals with termination for condominium conversion. [ 7 ] The “prescribed reasons” are found in the regulations. Alberta Regulation 211/2004 provides: Terminations of periodic tenancies 2(1) In this section, (a) “major renovations” does not include painting, the replacement of a floor covering or routine maintenance; (b) “relative” includes any relative by blood, marriage or adoption or by virtue of an adult interdependent relationship.

(2) For the purposes of section 6(1) of the Act, a landlord may terminate a periodic tenancy for any of the following prescribed reasons: (

a) if the landlord or a relative of the landlord intends to occupy the residential premises of the tenant; (

b) if the landlord has entered into an agreement to sell the residential premises of the tenant in which all conditions precedent in the agreement have been satisfied or waived and (

i) the purchaser or a relative of the purchaser intends to occupy the premises, or (ii) the agreement is to sell one detached or semi-detached dwelling unit or one condominium unit, and the purchaser requests in writing that the landlord give the tenant a notice to terminate the tenancy; (

c) if the landlord intends (

i) to demolish the building in which the residential premises of the tenant are located, or (ii) to make major renovations to the residential premises of the tenant that require the premises to be unoccupied; (

d) if the landlord intends to use or rent the residential premises of the tenant for a non-residential purpose; (

e) in a case where the landlord is an educational institution and the tenant is a student of that institution, if the tenant is no longer a student or will no longer be a student when the notice period for terminating the tenancy has passed. [ 8 ] No reason was given by the landlord to the tenants, much less one of the reasons permitted by the Act and the Regulations . [ 9 ] The landlord had earlier appeared (without the assistance of Counsel) before the Residential Tenancy Dispute Resolution Service. The same application was dismissed. Leave was given to reapply.

Instead, the landlord retained counsel and chose this venue. [ 10 ] Though this is not an appeal, I agree with my colleague below. There is no evidence to support the termination. The landlord’s application is dismissed. [ 11 ] The tenants both had to take time off work to appear in Court. The tenants are awarded costs in the form of out-of-pocket expenses and lost wages. Before they are entitled to these costs they shall prove, by affidavit, their pay loss and that they were unable to use a personal day (for example) to attend Court. Otherwise, costs will be determined on the basis of

Schedule B, Division 3 item 16: daily allowance ($50.00 x4) plus, reasonable out-of-pocket expenses for parking. Heard on the 26 th day of November, 2018. Dated at the City of Edmonton, Alberta this 28 th day of November, 2018.

W.S. Schlosser M.C.Q.B.A. Appearances: Emmanuel Alade City Law Offices for the Applicant Marvin T. Chmilar and Rozanne E. Chmilar Self-Represented Litigants/Respondents