RICHARD HOBBS APPLICANT/APPELLANT AND: THE FIRM PROPERTY MANAGEMENT SOLUTIONS INC. RESPONDENT, 2023 NLCA 31

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: Hobbs v. The Firm Property Management Solutions Inc., 2023 NLCA 31 Date: October 19, 2023 Docket Number: 202301H0055 BETWEEN: RICHARD HOBBS APPLICANT/APPELLANT AND: THE FIRM PROPERTY MANAGEMENT SOLUTIONS INC. RESPONDENT Coram: W.H. Goodridge J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division 202301G3231 (2023 NLSC 124) Application Heard: October 16, 2023 Memorandum of Disposition Filed: October 19, 2023 Counsel for the Applicant/Appellant: Self-Represented Counsel for the Respondent: B.

John Barrett, KC Authorities Cited: CASES CITED: United Food and Commercial Workers, Local 1252 Fisherman’s Union v. Cashin (1994), (NL CA),124 Nfld. & P.E.I.R. 201; Barendregt v. Grebliunas, 2022 SCC 22; Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. STATUTES CONSIDERED: Residential Tenancies Act, 2018, SNL 2018, c. R-14.2, section 42(6). RULES CONSIDERED: Court of Appeal Rules, NLR 38/16, rules 42(4), 37(3).

MEMORANDUM OF DISPOSITION W.H. Goodridge J.A.: Introduction [1] Richard Hobbs seeks leave to appeal an order made by a judge of the Supreme Court, Trial Division, refusing to stay theenforcement of an eviction order issued by the Director of Residential Tenancies. The eviction order is under appeal but the appealhearing has not yet occurred.

Pursuant to rule 42(4) of the Court of Appeal Rules, NLR 38/16, “An order made by a judge of theSupreme Court, Trial Division … refusing to stay the enforcement of an order under appeal may be appealed to the Court [of Appeal]only with leave”. [2] In United Food and Commercial Workers, Local 1252 Fisherman’s Union v. Cashin (1994), (NL CA), 124Nfld. & P.E.I.R. 201, Marshall J.A. stated at paragraph 38, in the context of an appeal of an interlocutory order, that “good reason mustbe shown to support the granting of leave to appeal since it ought only to be accorded in extreme cases”.

In this jurisdiction, the “goodreason” to justify the granting of leave to appeal generally includes: • the proposed appeal raises a question of law; • the question of law is of sufficient importance to merit the attention of the Court of Appeal; and • there is good reason to doubt the correctness of the decision under review. [3] For the reasons that follow, leave to appeal the order made by the Applications Judge, refusing to stay the enforcement of theeviction order, is denied. Notice of Appeal [4] In his proposed Notice of Appeal Mr.

Hobbs did not identify any question of law nor any errors committed by the ApplicationsJudge. The Notice of Appeal effectively sought a reconsideration of the stay application, or a "second kick at the can". As stated byKarakatsanis J. in Barendregt v. Grebliunas, 2022 SCC 22, at paragraph 104, an appeal is not a litigant's opportunity for a "second kickat the can". [5] At the leave application in this Court, after this concern was explained, Mr. Hobbs identified two potential questions of law:(1) the Applications Judge erred in his

interpretation of section 42(6) of the Residential Tenancies Act, 2018, SNL 2018, c. R-14.2,addressing service by registered mail; and (2) the Applications Judge erred in finding that the Landlord would be more inconveniencedcompared to Mr. Hobbs, if the stay was granted. Background [6] On February 23, 2023, Mr. Hobbs was served with a Notice of Termination of Rental Agreement for his apartment, effectiveMay 31, 2023. [7] On May 30, 2023, Mr. Hobbs advised the Landlord that he would not be moving out of the apartment and that the Landlordwould have to take the issue up with the Director.

The Landlord applied to the Director to obtain an eviction order. The Director electedto proceed by way of hearing and set July 3, 2023, to hear the application. [8] On June 5, 2023, a notice of the Landlord’s application for an eviction order, with notice of the July 3, 2023 hearing date, wassent to Mr. Hobbs by registered mail, pursuant to section 42(6) of the Residential Tenancies Act, 2018. The registered mail notice wasprepaid and properly addressed and sent. The tracking history shows this registered mail was unclaimed and eventually returned to thesender.

Based on the operation of section 42(6), the Applications Judge determined the date of service to be June 10, 2023 (ApplicationsJudge’s Decision, at para. 31). [9] On July 3, 2023, the hearing of the Landlord’s application proceeded in Mr. Hobbs’ absence and resulted in an eviction orderissued by the Director. [10] On July 12, 2023, Mr. Hobbs filed an appeal, with the Supreme Court, Trial Division, of the eviction order. Mr. Hobbscontemporaneously filed an application for a stay of enforcement of the eviction order pending the disposition of his appeal.

An ex parteorder for a temporary stay of enforcement of the eviction order was issued at that time, to remain in place pending the inter parteshearing of the application. [11] On September 14, 2023, the inter partes hearing of the application proceeded and Mr. Hobbs was unsuccessful. TheApplications Judge denied the full stay pending the disposition of the appeal but allowed a temporary stay (an additional month) for Mr.Hobbs to have time to move out of the apartment (Applications Judge’s Decision, at para. 42). [12] On October 10, 2023, Mr.

Hobbs filed the current application, seeking leave to appeal the decision of the Applications Judge todeny the stay.

[13] On October 13, 2023, Mr. Hobbs filed an application to supplement this background information with additional evidence thatwas not before the Applications Judge, namely, letters from The Gathering Place and Stella’s Circle, attesting to the current housingcrisis and his diligent efforts seeking a new apartment. Additional Evidence [14] The test in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, applies whenever a party seeks to adduceadditional evidence on appeal. That test ensures that the admission of additional evidence on appeal will be rare (Barendregt, at para.31). The test is set out as rule 37(3) of the Court of Appeal Rules: 37.

(3) In determining the application, the Court shall consider (

a) whether, by due diligence, the evidence could have been brought in the court appealed from; (

b) the relevance of the evidence in the sense that it bears upon a decisive or potentially decisive issue in the appeal; (

c) the credibility of the evidence; (

d) whether the evidence, if believed, could reasonably have affected the result; and (

e) any other relevant factor. [15] The evidence that Mr. Hobbs proposes to tender does not satisfy the Palmer test. These two letters could have been obtainedand presented to the Applications Judge with the exercise of due diligence (Barendregt, at para. 27). [16] The application to adduce additional evidence is dismissed. Analysis [17] I agree that the

interpretation of section 42(6) of the Residential Tenancies Act, 2018, addressing service by registered mail,raises a question of law. However, I do not agree that the Applications Judge erred in his

interpretation of that provision. There is noreason to doubt the correctness of the Application Judge’s

interpretation that “a notice of hearing is considered served on the fifth dayafter mailing (e.g. June 10, 2023)” (Applications Judge’s Decision, at para. 31).

Section 42(6) provides that notice by registered mail isvalid service: 42(6) For the purpose of this section, where a copy of the application is sent by registered mail or express post, it shall be considered tohave been served on the fifth day after mailing, and the service may be proved by providing evidence that the copy of the applicationwas prepaid and properly addressed and sent. [18] I do not agree that the finding of the Applications Judge – that the Landlord would be more inconvenienced compared to Mr.Hobbs if the stay was granted – raises a question of law.

In his reasons, the Applications Judge outlined the factors he considered,including the costs and inconvenience to Mr. Hobbs in relocating, and the costs and inconvenience to the Landlord being unable to leasethe apartment. The Applications Judge ameliorated the inconvenience to Mr. Hobbs by extending the temporary stay for an additionalmonth, to allow him time to move, and that was a factor in the balancing exercise. The Applications Judge considered the relevant factorsand made a finding that the balance of inconvenience favoured denial of a stay. No question of law is engaged.

This finding of theApplications Judge, on the balance of inconvenience, is entitled to deference. Disposition [19] Mr. Hobbs has not established good reason to justify this Court granting leave to appeal. Although his proposed appeal raises aquestion of law, there is no reason to doubt the correctness of the Applications Judge’s decision. Accordingly, leave to appeal the ordermade by the Applications Judge is denied. Costs [20] Neither party made submissions on costs. There shall be no order as to costs. _____________________________ W.H. Goodridge J.A.