Manitoba Housing Authority v. Date:, 2011 MBCA 32

Citation: Manitoba Housing Authority v. Date: 20110331 Hochkievich, 2011 MBCA 32 Docket: AI 11-30-07532 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) S. N. Rosenbaum MANITOBA HOUSING AUTHORITY ) for the Applicant ) (Landlord) Respondent ) A. J. Ladyka ) for the Respondent ) - and - ) T. D. Gisser ) for The Residential Tenancies ) Commission WAYNE HOCHKIEVICH ) ) Chambers motion heard and (Tenant) Applicant ) Decision pronounced: ) March 31, 2011 MICHEL A.

MONNIN J.A. 1 This is an application seeking an extension of time to file a motion seeking leave to appeal from a decision of the Residential Tenancies Commission (the RTC). 2 The applicant did not attend the RTC hearing which had been previously adjourned at his request. He called the RTC on the morning of the hearing advising that he would not be attending the hearing, but would participate by telephone. At the start of the hearing, which had also been delayed at the applicant’s request, the chairperson of the RTC called the applicant. There was no response save for his voice-mail message.

The hearing then proceeded in his absence. 3

Section 175 of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ) provides: Appeal to Court of Appeal 175(1) Any person who is a party to an appeal in a matter arising under a tenancy agreement, Parts 1 to 8 or The Life Leases Act may, if the person took

part in the hearing, appeal the decision or order of the commission to the Court of Appeal. Appeal with leave 175(2) An appeal under subsection (1) may be taken only on a question of jurisdiction or of law and only with leave obtained from a judge of the Court of Appeal. Application for leave to appeal 175(3) An application for leave to appeal shall be made (

a) if

section 171.01 applies, within 14 days after the person receives a copy of the commission’s corrected or amended decision or order; or

(

b) in any other case, within 14 days after the person receives a copy of the decision or order of the commission; or within such further time as the judge permits. 4 In Poitras v. Lenko , 2004 MBCA 75 , 184 Man.R. (2d) 257 , Hamilton J.A. wrote (at para. 5): The requirement that a person must take

part in the hearing before the Commission to have the right to seek leave to appeal must be read in a restrictive manner. …. See also Daylight Capital Corp. v. Monkman , 2006 MBCA 51 , 205 Man.R. (2d) 28 . 5 The RTC provided the applicant every possible opportunity to be present at the hearing. There is no basis in law for him to be able to circumvent the requirements of s. 175(1) of the Act .

The applicant is not entitled to launch an appeal and, accordingly, his application to extend time to file an application for leave is dismissed. 6 Had the applicant convinced me that the provisions of s. 175(1) of the Act did not apply to him, I still would have dismissed his application for leave to appeal as the grounds did not deal with a pure question of law, but, at best, one of mixed law and fact. Furthermore, in my view, his appeal did not have a reasonable prospect of success, nor did the matter warrant the attention of this court. See Manitoba Housing Authority v.

Horvat , 2010 MBCA 43 , 255 Man.R. (2d) 42. J.A.