CHERYL BRINKMAN v. AARON TROPEAU, 2022 SKKB 223

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 223 Date: 2022 10 06 Docket: KBG-SA-00981-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ IN THE MATTER OF s. 72(1) and 72(1.1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: CHERYL BRINKMAN and AARON TROPEAU Applicants - and - WESTERN PREMIUM PROPERTY MANAGEMENT INC.

Respondent - and - THE OFFICE OF RESIDENTIAL TENANCIES Respondent Appearances: Cheryl Brinkman on her own behalf no one appearing for the respondent, Western Premium Property Management Inc. no one appearing for the Office of Residential Tenancies ___________________________________________________________________________ JUDGMENT DANYLIUK J. October 6, 2022 ___________________________________________________________________________ Introduction [ 1 ] This is a statutory application brought by the tenants under The Residential Tenancies Act , 2006 , SS 2006, c R-22.0001 [ RTA ].

The tenants have presently filed an application without notice to extend the time in which they can appeal a Hearing Officer’s decision. [ 2 ] For the reasons set out below, the application must be dismissed but without prejudice to renewing same by filing proper material in a timely manner, as set out below. Facts [ 3 ] The material filed on this application is woefully deficient. Accordingly, it is difficult to discern the facts.

Actually I cannot even tell the true date of the decision of the Hearing Officer from which this appeal is being brought. [ 4 ] Part of the material before me includes a Decision of a Hearing Officer ( Brinkman v Western Premium Property Management , 2022 SKORT 791 [Decision] ). The document put before me is unsigned. It purports to be a decision made by Hearing Officer Tyler J. Young. The document before me is dated March 16, 2022 and is based on a hearing held March 15, 2022.

From the content of this document and the material filed by the prospective appellants, it appears this is the Decision from which they wish to appeal. It is an adjudication of the tenants’ claim for financial compensation arising from alleged wrongs committed by their landlord, the respondent named herein. The Hearing Officer provided a 40-paragraph decision and awarded the tenants $100.00 in damages. [ 5 ] The following is a list of the documents filed by the applicants/tenants on this application: a. Application without notice to extend time for appeal; b.

Affidavit of service of notice of appeal on the landlord;

c. Affidavit of service of notice of appeal on the Office of Residential Tenancies; d. Handwritten document “A lawyer’s

summary of facts on claim #216192”; e. Draft notice of appeal; and f. Unsigned ORT decision dated March 16, 2022. [6] The only document purporting to be a Decision which the applicants have chosen to place before me is thisunsigned document from March 16, 2022. However, their draft notice of appeal states the Hearing Officer’s Decision was datedSeptember 30, 2022. I have no document bearing that date. It does not make any sense that the actual, operative Decision would be fromthat date as the tenants would have 30 days to appeal under s. 72(1). They would not need an extension order.

Since the tenants havedecided what to place before this Court, I am proceeding on the basis that the relevant Decision was (to use the language of s. 72(1))signed and dated by the Hearing Officer on March 16, 2022. [7] Assuming the unsigned decision filed is the actual decision, the Hearing Officer noted the tenants’ claim wasfor $22,700.00. He did not find the tenants to be credible or reliable, citing case law to support the basis upon which he made hiscredibility findings.

The Hearing Officer noted (paragraph 14) that the tenants “were unable to control themselves throughout thehearing, despite repeated requests to reserve comments and then warnings.” He found the landlord’s representative “forthright”(paragraph 16). The Hearing Officer then assessed the damage claim as best he could given the poor evidence presented, and found mostof the claims were not proven to the required standard. He awarded a total of $100.00 to the tenants. [8] There is no supporting affidavit from either tenant on this application.

There is absolutely no explanation forthe delay from March 16, 2022 (the Decision date) to October 4, 2022, when documents were filed with the Local Registrar of thisCourt. The handwritten opinion (whatever that means) has much to do with the merits of the desired appeal, but really nothing to do withthis application to extend time. [9] This is the factual matrix within which I must deal with the application to extend time for the tenants to appealthe Hearing Officer’s Decision. Issues [10] The issues on this application to extend time are as follows: 1. What is the appropriate legal test? 2.

Should a time extension be granted in which the applicants may serve and file their notice of appeal? Analysis 1. What is the appropriate legal test? [11]

Section 72 of the RTA deals with appeals generally. Subsection (1.1) states: 72(1.1) The Court of Queen’s Bench may extend the time for appeal for up to two years from the date on which the decision or order issigned and dated by a hearing officer if the proposed appellant can establish that the proposed appellant did not receive notice of thedecision or order. [12] I have no material whatsoever even alleging, much less establishing, that the proposed appellants did not receivethe Decision in a timely manner.

As this is the only basis upon which an extension can be granted under the statute, this information iscritical. It is critical, and it is absent. [13] In my respectful view this is a fatal deficiency and impels me to dismiss the within application. This is a narrowlegal test established in s. 72(1.1) and the applicants have not met same. [14] The decision in Hoffart v Carteri, 2019 SKCA 23, is of use to me, even though it applied to an extension requeston a matter before the Court of Appeal.

There, citing Dutchak v Dutchak, 2009 SKCA 89, 337 Sask R 46, Justice Barrington-Foote notedat paragraphs 21 and 22: [21] The four factors to be considered on an application to extend the time to serve and file a notice of appeal were reiterated inDutchak v Dutchak, 2009 SKCA 89, 337 Sask R 46. As Jackson J.A. said: [12] … [I]n determining whether leave should be granted the applicant must persuade the Court that: (

i) there is a reasonableexplanation for the delay; (ii) he or she possessed a bona fide intention to appeal within the time limited for appeal; (iii) there is anarguable case to be made to a panel of the Court; and (iv) there will be no prejudice to the respondent, if leave is granted beyond whatwould be incurred in the usual appeal process. In any given case, one or more factors may be more important than another. [22] A prospective appellant need not establish all of these factors in order to succeed.

Rather, they must establish, taking thesefactors into account, that it is just and equitable to extend the time for appeal: Treeland Motor Inn Ltd. v Western Assurance Company(1983), (SK CA), 4 DLR (4th) 370 (Sask CA) at para 9; Taheri v Vujanovic, 2018 SKCA 40 at para 21 [Taheri]; andSparvier v Lac La Ronge Indian Band, 2011 SKCA 115 at para 8. [15] Even if I applied this test there has been no explanation for the delay, there is no evidence of a true intent toappeal the Decision, and it is doubtful whether there is an arguable case.

The applicants also have failed to address the issue of prejudice.The total lack of any sworn material on these essential points renders difficult, if not impossible, a proper adjudication of this application

on its merits. [ 16 ] In my respectful view the test on an extension application under s. 72(1.1) RTA is as follows: 1. The applicant must file material establishing that he or she did not receive timely notice of the Hearing Officer’s Decision, such that an extension of time to appeal is warranted. 2. Any delay in responding to the Hearing Officer’s Decision or making the extension application must be explained to this Court’s satisfaction. 3. The applicant must establish that he or she had a bona fide intention to appeal within the statutory time limit. 4.

The applicant must demonstrate he or she has an arguable appeal, bearing in mind the limited appellate jurisdiction of this Court on such matters. 5. The applicant must demonstrate there is no prejudice to the respondent if the extension order is granted. 2. Should a time extension be granted in which the applicants may serve and file their notice of appeal? [ 17 ] The short answer to this question is “no”. Most of the considerations here have already been canvassed above. [ 18 ] Given the absolute paucity of information relevant to this application to extend, I cannot grant the time extension sought.

I have no choice but to dismiss same. [ 19 ] However, I will grant the applicants leave to renew this application by filing affidavit(

s) that address the legal matters and the test outlined above, provided those documents are filed within 15 days of the date hereof. In the event such documents are filed then the matter is to be returned to me for further review. [ 20 ] Accordingly, I dismiss the applicants’ application on those terms. “R.W. Danyliuk” J. R.W. DANYLIUIK