Aziz v. Haque et al., 2011 MBCA 58

Citation: Aziz v. Haque et al., 2011 MBCA 58 Date: 20110707 Docket: AI 11-30-07567 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) M. HaqueTARIQ AZIZ ) on behalf of the Applicants ) (Landlord) Respondent ) T. Aziz ) on his own behalf ) - and - ) T. D. Gisser ) for The Residential Tenancies ) CommissionMAZHARUL HAQUE and FARAH ) HAQUE ) Chambers motion heard: ) June 30, 2011 (Tenants) Applicants ) ) Decision pronounced: ) July 7, 2011 FREEDMAN J.A. 1 The applicants seek leave to appeal an order (No.

W2010-012154A) of the Residential Tenancies Commission (theCommission) made April 28, 2011, pursuant to the provisions of The Residential Tenancies Act, C.C.S.M., c. R119 (the Act). The orderrequired the applicants to pay the respondent $755. 2 My colleague M. A. Monnin J.A. recently referred to the test that persons such as the applicants must satisfy (in EdisonRental Agency v. Klippenstein, 2011 MBCA 3, leave to appeal to S.C.C. dismissed, [2011] S.C.C.A.

No. 69 (QL)) (at para. 7): The test that an applicant must meet in order to be granted leave to appeal from a decision of the Commission is well settled and has beenset out in numerous decisions of this court. See 4469667 Manitoba Ltd. v. Thomas, 2009 MBCA 20 (in chambers); Manitoba HousingAuthority v. Bertram, 2006 MBCA 49, 205 Man.R. (2d) 61 (in chambers); Procak v. Hayward, 2006 MBCA 84, 205 Man.R. (2d) 150 (inchambers); and 3391397 Manitoba Ltd. v. Winnipeg City Assessor (1998), (MB CA), 126 Man.R. (2d) 63 (inchambers).

A recent enunciation of the test is to be found in the reasons of Freedman J.A. in Manitoba Housing Authority v. Horvat,2010 MBCA 43, 255 Man.R. (2d) 42 (in chambers), where he wrote (at para. 3): The Act provides the applicant with a very limited opportunity to appeal a decision or order of the Commission to this court. Appeals arelimited to questions of jurisdiction or law, and an applicant needs leave to appeal. Three factors are considered by a judge in determiningwhether to grant leave. See Pelchat v.

Manitoba Public Insurance Corp. et al. ... [(2006)], 2006 MBCA 90 , 40 C.C.L.I. (4th) 46;2006 MBCA 90 (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 ofconflicting factual issues” (Shersty v. Manitoba Public Insurance Corp. (2002), 2002 MBCA 108 , 43 C.C.L.I. (3d) 35; 2002MBCA 108 (Man. C.A. [In Chambers]), at para. 2; Fillion v. Manitoba Public Insurance Corp. (2004), 2004 MBCA 61 , 10C.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), (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), 2003 MBCA 95 , 50 C.C.L.I. (3d) 1; 2003 MBCA 95 (Man. C.A. [In Chambers])). 3 After hearing evidence from both parties, the Commission decided that the parties had reached “a meeting of the minds”that a unit owned by the respondent would be leased to the applicants. The Commission then found the applicants responsible to payone-half month’s rent, less deposit, plus costs, or $755. 4 The applicants argued that no written lease was ever signed and, thus, the Commission erred in law. But s. 7(1) of the Actprovides that (subject to an inapplicable exception) a tenancy agreement may be made orally.

There was no error in law by theCommission regarding the respondent’s claim. 5 The Commission dismissed the applicants’ claim for lost wages and other matters. That decision was entirely fact-based. 6 In my opinion, no question of law arises in this application, let alone a question that warrants the attention of the court. 7 I would dismiss the application for leave to appeal. J.A.