Purves et al. v. Chisel, 2011 MBCA 57

Citation: Purves et al. v. Chisel, 2011 MBCA 57 Date: 20110706 Docket: AI 11-30-07514 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) T. A. McMahon BEVERLY PURVES and ROBERT ) for the Applicants PURVES ) ) J. R. Nadeau (Landlords) Applicants ) for the Respondent ) ) T. D. Gisser - and - ) for The Residential ) Tenancies Commission ) SANDRA CHISEL ) Chambers motion heard: ) June 16, 2011 (Tenant) Respondent ) ) Decision pronounced: ) July 6, 2011 MICHEL A.

MONNIN J.A. 1 This is an application for leave to appeal from a decision of the Residential Tenancies Commission (the RTC). 2 On December 17, 2010, following a two-day hearing, the RTC set aside an order of possession and costs which had previously been granted to the applicants by an officer of the Residential Tenancies Branch. 3 The applicants had been seeking an order of possession and costs from the respondent on the basis that the respondent had changed the locks on the premises she was occupying at 605 Banning Street (the premises) without providing a key to the applicants, who were the owners of the premises.

The applicants alleged that the respondent, as a result of her conduct, had breached a material term of a tenancy agreement. 4 Beverly Purves is the daughter of the respondent. The applicants are the registered owners of the premises and claimed to be in a landlord-tenant relationship with the respondent. The respondent took the position that the arrangement she had with the applicants was not a tenancy agreement, but a rent-to-own agreement.

She claims that she entered into such an agreement with the applicants because she was unable to obtain mortgage financing on her own to purchase the premises. 5 In declining to grant the order sought, the RTC concluded that there was no landlord-tenant relationship. It stated: The panel has decided not to grant an Order of Possession because we are not satisfied that a tenancy relationship exists between the parties. In our view, it is more likely that parties entered into an arrangement whereby Ms Purves was helping her mother purchase a home.

In our view, the evidence supports a finding that Ms Chisel was unable to obtain financing to purchase a home due to her poor credit rating. In order to help her, Ms Purves and Mr. Purves purchased the home for Ms Chisel, taking legal title in their names and obtaining a mortgage in their names. In accordance with the families’ oral agreement, Ms Chisel and her son occupied the home, made the required mortgage payments and paid for repairs, improvements, and maintenance of the property.

Even though there was a signed Tenancy Agreement, the panel finds that the parties did not intend to enter into a tenancy relationship; rather, the intention was that at some point in the future, the property would be transferred to Ms Chisel when she was able to take over the mortgage payments. A similar arrangement existed with respect to the cottage: Ms Purves did not qualify for a mortgage on the cottage, but Ms Chisel did.

Ms Purves was certain that despite Ms Chisel being on title of the cottage, she is the true beneficial owner. 6 The applicants now seek leave to appeal the RTC decision, alleging numerous errors in law. They allege that the RTC failed to determine that a tenancy agreement and therefore a landlord-tenant relationship existed; that it made adverse inferences because

the applicants did not provide evidence regarding payment for repairs to the premises; that it failed to address inconsistencies in theevidence; that it accepted that a tenancy agreement had been signed and then determined that the parties did not intend to enter into atenancy agreement; that it exceeded its jurisdiction by hearing inadmissible or irrelevant evidence; that it failed to proceed in a fair andexpeditious manner in breach of principles of natural justice; that it made determinations with respect to issues that were not before it;and, finally, that it failed to correctly apply ss. 53 and 96 of The Residential Tenancies Act, C.C.S.M., c.

R119 (the Act). 7 It is well-settled law that a leave application will only be granted from a decision of the RTC if an applicant raises an issueof pure law or jurisdiction, if the issue attempting to be raised warrants the attention of this court in that the issue raised will beapplicable to other similar disputes, and, finally, if there is an arguable chance of success. See J.C. Property Management v. Benard,2011 MBCA 1; Edison Rental Agency v. Klippenstein, 2011 MBCA 3; and Globe General Agencies v.

Thompson, 2003 MBCA 4. 8 Although the grounds of appeal are numerous and appear to be independent of one another, they all relate to eitherprocedural matters or the central question that was before the RTC, and that is the nature of the agreement that existed between theparties. 9 The matter before the RTC was a fact-driven one. The RTC heard from five witnesses over a two-day period. It madefindings of credibility and of fact that led to its conclusion that the arrangement between the parties was not one of landlord and tenant,notwithstanding an agreement that purported to so state.

It came to the conclusion that what was before it was an arrangement between amother (respondent) and a daughter (co-applicant) to permit the mother to obtain better accommodations than what she previously had. 10 In dismissing the application for leave, I point out, as did Helper J.A. in Motor Coach Industries Ltd. v. Winnipeg CityAssessor (1997), (MB CA), 118 Man.R. (2d) 280, that there is a distinction to be drawn between disregardingevidence and rejecting evidence.

The fact that the RTC did not accept the evidence proffered by the applicants is not a question of law,nor does it even raise an issue of mixed fact and law. 11 I also point out, as Scott C.J.M. did in Dorge v. Cummine et al., 2004 MBCA 86, that the existence of a valid and enforceablelease agreement is a mixed question of fact and law and therefore not an appropriate issue on which to grant leave. 12 I also point out, as Scott C.J.M. did in Procak v.

Hayward, 2006 MBCA 84, 205 Man.R. (2d) 150, that the RTC has a widediscretion in the manner in which its hearings are conducted and the evidence it is prepared to hear or not hear. Scott C.J.M. wrote (atpara. 6): Within its jurisdiction, the Commission is the master of factual disputes that come before it. As we have seen, it is not bound by the strictrules of evidence. As counsel for the Commission put it, it, like many other administrative tribunals, is not “shackled” by the same rigidrules of evidence as courts are.

The fact, therefore, that the rules of evidence applicable to court proceedings may not have permitted theadmission into evidence of the photocopies of the tenant’s money orders is quite beside the point. The Commission was faced withhaving to make a decision based on conflicting testimony and it did so based on evidence properly before it. The landlord did not losebecause of an error in law, he lost on the facts. 13 Finally, I point out, as was done, again, by Scott C.J.M. in Manitoba Housing Authority v.

Bertram, 2006 MBCA 49, 205Man.R. (2d) 61, that the granting or refusing of an adjournment by the RTC is not a question of law. 14 In another vein, but also persuasive in my concluding that leave should not be granted, is that the applicants have now soldthe premises that are the subject-matter of the proposed appeal, rendering an order of possession a moot issue.

In addition, proceedingshave been initiated in the Court of Queen’s Bench to resolve the nature of the agreement as between the parties. 15 In conclusion, therefore, I have not been persuaded that any of the proposed grounds of appeal raise a question of law orjurisdiction or that, if they did, that such grounds merit the attention of this court or that there is an arguable case to be made. 16 I therefore dismiss the application with costs. J.A.