Manitoba Housing Date:, 2010 MBCA 43

Citation: Manitoba Housing Date: 20100426 Authority v. Horvat, 2010 MBCA 43 Docket: AI 10-30-07347 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) H. Horvat MANITOBA HOUSING AUTHORITY ) on her own behalf ) (Landlord) Respondent ) T. J. Björnson ) for the Residential ) Tenancies Commission - and - ) ) A. J.

Ladyka ) for the Manitoba HILDA HORVAT ) Housing Authority ) (Tenant) Applicant ) Chambers motion heard: ) April 22, 2010 ) ) Judgment delivered: ) April 26, 2010 FREEDMAN J.A. 1 This is an application for leave to appeal a decision of the Residential Tenancies Commission (the Commission), pursuant to s. 175(2) of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ). 2 The applicant, a tenant in property owned by the respondent, submitted a request for repairs to the rental unit.

After an inspection, the Residential Tenancies Branch (the Branch) established pursuant to the Act , ordered that certain repairs be undertaken, but declined to order certain other repairs. On appeal by the applicant, the Commission allowed the appeal in part, but denied it in other respects. The tenant now seeks leave to appeal those parts of the Commission’s order denying her request for repairs. 3 The Act provides the applicant with a very limited opportunity to appeal a decision or order of the Commission to this court.

Appeals are limited to questions of jurisdiction or law, and an applicant needs leave to appeal. Three factors are considered by a judge in determining whether to grant leave. See Pelchat v. Manitoba Public Insurance Corp. , 2006 MBCA 90 , 40 C.C.L.I. (4th) 46 (at para. 2 ): …. 1. The question must be truly one only of jurisdiction or of law, and not one which “involve[s] the court in an assessment or analysis of conflicting factual issues” ( Shersty v. Manitoba Public Insurance Corp. (2002), 43 C.C.L.I. (3d) 35 , 2002 MBCA 108 (Man. C.A. [In Chambers]), at para. 2, Fillion v.

Manitoba Public Insurance Corp. (2004), 10 C.C.L.I. (4th) 182 , 2004 MBCA 61 (Man. C.A.) , and cases cited therein). 2. The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediate case, but in determining other similar disputes which are apt to arise in [the] future” ( Wuziuk v. Manitoba (Director of Social Services) (No. 2) (1979), 1979 CanLII 3158 (MB CA) , 3 Man.R. (2d) 81 (Man. C.A.) , at para. 7 ). 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v.

Manitoba Public Insurance Corp. (2003), 50 C.C.L.I. (3d) 1 , 2003 MBCA 95 (Man. C.A. [In Chambers])). 4 See also 4469667 Manitoba Ltd. v. Thomas , 2009 MBCA 20 ; Manitoba Housing Authority v. Bertram , 2006 MBCA 49 ,

205 Man.R. (2d) 61; Procak v. Hayward , 2006 MBCA 84 , 205 Man.R. (2d) 150, and 3391397 Manitoba Ltd. v. Winnipeg City Assessor (1998), 1998 CanLII 5005 (MB CA) , 126 Man.R. (2d) 63 (C.A.). 5 In the last-mentioned case, the Chief Justice said (at para. 5): …. The court cannot be concerned with reassessing findings of fact.

Unless a legal question can be identified without the court involving itself in reweighing or reconsidering factual issues, leave to appeal will not be granted. …. 6 The applicant argued that the Commission misinterpreted or misapplied several sections in the Act relating to a landlord’s obligation to repair rented property and not to interfere with a tenant’s enjoyment of that property. The written reasons of the Commission demonstrate that it took into account all the evidence offered by each party and reached a decision on the basis of its view of the evidence. That decision is a heavily fact-based decision.

Any questions arising from the decision are, in my opinion, questions of fact or, at best, questions of mixed fact and law. They do not raise a question of law alone that would be necessary before leave could be granted. 7 The applicant argued that she was not allowed by the Commission to give evidence about excessive mould accumulating within bathroom sink faucet handles. She argues that the Commission “disrupted [her] from speaking, not allowing [her] the full opportunity to present the evidence.” 8 It appears that the issue in question was raised by the applicant in her request for repairs.

The Branch order to repair denied the applicant’s request to repair in respect of the bathroom sink for reasons given in its order. The Commission’s reasons note that the Branch’s inspector testified that the bathroom sink was working properly. The applicant had testified and had provided the Commission with videos relating to the sink and other items.

The reasons of the Commission state that the “audio and video evidence of the tenant was compelling proof of several of the items she was claiming.” The reasons then confirm the Branch’s order regarding the bathroom sink; i.e., the Commission denied the applicant’s request to repair the sink. 9 The reasons of the Commission make no reference to evidence that the applicant was prevented from giving, but do indicate that she testified about many issues.

The Act provides: 165(3) The commission shall determine its own practice and procedure but shall give full opportunity to the parties to present evidence and make submissions. 10 I am not persuaded that the evidence now provided by the applicant establishes that the Commission denied her the opportunity to present evidence, particularly in light of the fact that she submitted video evidence directly relating to the bathroom sink, and that evidence was clearly taken into account.

While the Commission is the master of its own procedure, a demonstrated breach by the Commission of its obligation under s. 165(3) of the Act could give rise to a jurisdictional issue or question of law. In this case, the evidence falls far short of what would be required to establish such a breach. 11 The applicant has not met the burden of showing that there is here a question of jurisdiction or law, let alone such a question warranting the attention of the court. Her application is dismissed. I make no order as to costs. J.A.