Afolabi v Wexcel Realty Management Ltd, 2023 ABKB 68

Court of King’s Bench of Alberta Citation: Afolabi v Wexcel Realty Management Ltd, 2023 ABKB 68 Date: 20230203 Docket: 2201 05800, 2201 13714 Registry: Calgary Between: Kehinde Olanipekun Afolabi and Olufunmilayo Afolabi Applicants/Appellants - and - Wexcel Realty Management Ltd. and Jack Liu and Leanne Lin Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I. Introduction [ 1 ] This matter came before me in civil chambers.

The Applicants, Kehinde Olanipekun Afolabi and Olufunmilayo Mobolanle Afolabi (together, the Tenants ), apply for permission to file a late Notice of Appeal in respect of a November 24, 2022 order of a tenancy dispute officer of the Residential Tenancy Dispute Resolution Service ( RTDRS ) pursuant to RTDRS file number R22/005288. [ 2 ] Mr. Afolabi appeared on his own behalf and apparently as agent for Ms. Afolabi. Mr.

Afolabi was assisted by a volunteer from the King’s Bench Amicus Project ( Amicus ) for purposes of the attendance. [ 3 ] The grounds for seeking permission to file the late Notice of Appeal are that the Tenants misunderstood and miscalculated the time-period within which an appeal was required to be filed and were advised by the Clerk’s office that they were out of time and would need to file an application for permission to file a late Notice of Appeal. [ 4 ] It is unclear whether the Respondents were provided notice of the Tenants’ application for permission to file a late Notice of Appeal. [ 5 ] On further review of this matter, the Tenants’ request is denied.

II. Background [ 6 ] The Tenants entered into a fixed term tenancy Lease Agreement ( Lease ) with Wexcel Realty Management Ltd ( Landlord ) on January 6, 2021 with a term commencing on May 1, 2021 and ending April 30, 2022. [ 7 ] A dispute arose between the Tenants and the Landlord respecting potential extension of the Lease. The Landlord advised the Tenants that it was selling the property and would not extend the Lease.

[ 8 ] The Tenants assert that, on April 29, 2022, the Landlord breached the Lease by entering the premises and by taking and circulating a photograph of the Tenants’ child in the premises ( Alleged Breach ). [ 9 ] The Landlord commenced proceedings before the RTDRS respecting the Tenants’ failure to vacate the premises.

On May 14, 2022, the Tenants filed a cross-application with RTDRS seeking, among other things, $50,000 in damages for the Alleged Breach. [ 10 ] On May 19, 2022, a tenancy dispute officer granted an “Unconditional Order” confirming the Tenants were in breach of the Lease for failing to vacate the premises on April 30, 2022, ordering that the tenancy was terminated effective April 30, 2022 and directing the Tenants to vacate the premises by May 26, 2022 ( May 19 Order ).

The May 19 Order was filed at the Court of Queen’s Bench on May 19, 2022 under Action Number 2201-005800. [ 11 ] On November 24, 2022, a tenancy dispute officer granted an order dismissing the Tenants’ cross-application respecting the Alleged Breach ( November 24 Order ). The tenancy dispute officer found that the Landlord breached the Residential Tenancies Act, SA 2004, c R17.1 , but that the infringement was de minimus and therefore called for no remedy.

The tenancy dispute officer found that taking photographs of the minor was incidental to the Landlord’s legitimate purpose of hand-delivering a cheque to the Tenants and generating evidence of same. The November 24 Order provides that “This order is binding on the parties when issued and, on being filed at the Court of King’s Bench, is enforceable in the same manner as an order of the Court”. [ 12 ] The November 24 Order was filed at the Court of King’s Bench on November 25, 2022 under Action Number 2201-13714.

It is unknown whether the filed November 24 Order was ever served on the Tenants. [ 13 ] The Tenants believed that the calculation of the 30-day time period to file a Notice of Appeal of the November 24 Order did not include Sundays or the holiday period. Mr. Afolabi attended at the Court of King’s Bench on January 9, 2023 to file a Notice of Appeal. It appears he may have been advised by the Clerk’s office that he was out of time, so he brought the application for permission to file a late Notice of Appeal. III. Issues [ 14 ] The issues on this application are: (

a) When did the appeal period for filing a Notice of Appeal of the November 24 Order start and finish? (

b) Should the Tenants be granted permission to file a Notice of Appeal? IV. Analysis [ 15 ] As noted above, it is unclear whether the Respondents have been served with the Tenants’ application for permission to file the Notice of Appeal. Normally in those circumstances, the Court would adjourn the application so that service could be confirmed. However, I find this is unnecessary given my conclusion in this matter. A.

When did the appeal period for filing a Notice of Appeal of the November 24 Order start and finish? [ 16 ] Prior to the Residential Tenancy Dispute Resolution Service Amendment Regulation , Alta Reg 83/2017, s 10, the time for filing a Notice of Appeal started on the date the tenancy dispute officer made the order. However,

section 23 of the Residential Tenancy Dispute Resolution Service Regulation , Alta Reg 98/2006 , as amended (the “ Regulation ” ) now provides that the appeal period starts when the order is “filed”. Section 23(1) of the Regulation provides: 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 King’s Bench (

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

i) filing with the Court of King’s Bench a notice of appeal setting out the grounds of appeal, and (ii) serving a copy of the filed notice of appeal on

A) the respondent,

B) the Dispute Resolution Service, and

C) any other person that the Court of King’s Bench directs, and (

b) by filing with the Court of King’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 King’s Bench a transcript of the evidence heard before the tenancy dispute officer unless (

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

b) the Dispute Resolution Service has confirmed that a transcript is not available. [ 17 ] While there may have been some uncertainty surrounding whether the filing referred to in section 23(1) (

a) of the Regulation meant filing at the RTDRS office or filing at the Court of King’s Bench, Scarlett v Wang , 2019 ABCA 72 at para 37 clarifies that it is filing at the Court of King’s Bench that starts the appeal period. This is consistent with other provisions of the Regulation that refer to filing a tenancy dispute officer order at King’s Bench. [ 18 ] The Tenants’ application also raises an interpretive question as to whether there must be service of the tenancy dispute officer order before the appeal period begins. There is no evidence before me as to whether or when the Tenants were formally served with the November 24 Order. [ 19 ] Section 23(1) (

a) of the Regulation expressly provides that the appeal period is “within 30 days after the order is filed”; it makes no reference to service. By contrast, service of a tenancy dispute officer order is referred to in section 22(2) of the Regulation , which provides that “an order made by a tenancy dispute officer does not take effect until it is filed under subsection (1) and served”.

Section 20 of the Regulation provides that the “Dispute Resolution Service shall provide a copy of each order made by a tenancy dispute officer to each party”. [ 20 ] It is arguably counter-intuitive that an appeal period can start on filing at King’s Bench, even if the potential appellant has not yet been served as required by the Regulation and, therefore, the tenancy dispute officer’s order has not yet taken effect under section 22(2) . However, on my review, this is the most reasonable

interpretation of the Regulation ’s express wording. The drafters were aware that service was required under section 22(2) of the Regulation , but decided to start the appeal window based on the filing of the order at King’s Bench without any reference to service. This is in contrast with an appeal under

section 53 of the Residential Tenancies Act , which provides that the appeal window for an appeal of an order made by the Provincial Court starts after the order is entered and served. In the case of appeals of tenancy dispute officer orders, a decision was made by the drafters of the Regulation to require service of the order before the order can be enforced ( section 22(2) ), but not before an appeal period to appeal the order starts (section 23). In my view, this

interpretation is also consistent with paragraph 37 of Scarlett v Wang noted above. [ 21 ] Accordingly, potential appellants of tenancy dispute officer orders will have to be vigilant in monitoring the date that an order of a tenancy dispute officer order is filed at the Court of King’s Bench, and not wait until the order is served on them. [ 22 ] In this case, the November 24 Order was filed at King’s Bench on November 25, 2022. Section 22(7) of the

Interpretation Act , RSA 2000, c I-8 provides that “if an enactment provides that anything is to be done within a time after, from, of or before a specified day, the time does not include that day”. This means November 25, 2022 is not used in calculating the 30-day period. By my calculation, the 30-day appeal window would have ended on December 25, 2022. Section 22(1) of the

Interpretation Act provides that “if in an enactment the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday”. At the very latest, the next day that the Court was open that was not a holiday was January 3, 2023. [ 23 ] The Tenants have not yet filed a Notice of Appeal, and did not even attempt to file the Notice of Appeal until January 9, 2023. Therefore, the Tenants have not complied with section 23(1) (

a) of the Regulation . B. Should the Tenants be granted permission to file the Notice of Appeal? [ 24 ]

Section 28 of the Regulation provides that “if an appellant fails to comply with the requirements of

section 23, the appeal shall be dismissed by the Court of King’s Bench” (emphasis added). This same language in earlier versions of the Regulation has been interpreted as mandatory, such that if the requirements of section 23(1) (

a) and (

b) are not complied with, the appeal must be dismissed: Nee v Ayre , 2015 ABQB 402 at para 18 .

In contrast with section 23(2) of the Regulation , which provides the Court some discretion in varying the date for filing of transcripts, section 23(1) gives the Court no discretion to extend or forgive the 30-day time period: Alberta’s Best Properties v Barton , 2010 ABQB 589 at paras 21-22 ; Herman v Boardwalk Rental Communities , 2011 ABQB 394 at paras 14-21 ; Zibrowski v Nicolis , 2012 ABQB 236 at para 9 . [ 25 ] The Amicus ably attempted to argue that these earlier cases were decided without due consideration of the Court’s powers under the Alberta Rules of Court , Alta Reg 124/2010 to enlarge timelines or forgive slips or omissions.

I do not find this argument persuasive and I note that it appears to be precluded by

section 28.1 of the Judicature Act , RSA 2000, c J-2 . In the recent case of Rana v Rana , 2022 ABCA 270 , the Court of Appeal commented on that provision at paras 27, 29 and 30: A straightforward statutory

interpretation principle is that a “[s]pecific provision may limit a general grant of authority.” Professor Sullivan opined that “[w]hen two provisions are in conflict and one of them deals specifically with the matter in question while the other has a more general application, the conflict may be resolved by applying the more specific provision to the exclusion of the more general one.” ...

Sometimes the statute may contemplate potential conflict and provide specific rules that determine the solution to the anticipated dilemma. There is such a provision in the Judicature Act .

Section 28.1(1) authorizes the Lieutenant Governor in Council to make by regulation rules of court. But

section 28.1(3) contemplates conflict and says this: Subsection (2) does not authorize the making of rules that conflict with

an Act of the Legislature or of the Parliament of Canada, or regulations made under those Acts , but the rules may supplement the provisions of

an Act or regulation in respect of practice and procedure. [Emphasis added.] [ 26 ] Accordingly, I conclude that I have no authority under the Rules of Court to extend or vary the appeal period under section 23(1) (

a) of the Regulation . See also rule 1.5(5) of the Rules of Court . [ 27 ] Even if it could be argued that, technically, I could grant the Tenants permission to file the Notice of Appeal under the Rules of Court , because the simple act of allowing a document to be filed would not directly conflict with the Regulation which contemplates a dismissal after filing, I would not exercise my discretion to do so. In my view, this would be a waste of resources, because, under the mandatory provisions of

section 28 of the Regulation , the Court would nevertheless then be required to dismiss the appeal for failing to comply with

section 23 of the Regulation . The proposed appeal is hopeless. There is no point in granting permission to file the proposed Notice of Appeal, only to then have the Court go through the additional and unnecessary process of dismissing the appeal under

section 28 of the Regulation . [ 28 ] Accordingly, the application for permission to file the Notice of Appeal outside the 30-day appeal window in section 23(1) (

a) of the Regulation is dismissed. There shall be no costs of this application. Heard on the 19 th day of January 2023. Dated at the City of Calgary, Alberta this 3 rd day of February, 2023. M.A. Marion J.C.K.B.A. Appearances: Kehinde Olanipekun Afolabi Self-represented Litigant Cassidy Bishop Volunteer KB Amicus (for this application only)