Manitoba Housing Authority v. Young, 2011 MBCA 68

Citation: Manitoba Housing Authority v. Young, 2011 MBCA 68 Date: 20110824 Docket: AI 09-30-07187 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) S. A. Van Schie and MANITOBA HOUSING AUTHORITY ) B. J. Froese ) for the Applicant (Landlord) Respondent ) ) A. J. Ladyka ) for the Respondent - and - ) ) T. D. Gisser ) for The Residential Tenancies MARTIN W. C. YOUNG ) Commission ) (Tenant) Applicant ) Chambers motion heard: ) June 16, 2011 ) ) Decision pronounced: ) August 24, 2011 MICHEL A.

MONNIN J.A. 1 This is an application seeking leave to appeal from an order of the Residential Tenancies Commission (the RTC) setting aside an order compensating the applicant for the loss of his personal property. 2 On September 15, 2006, the applicant moved into a rental unit owned by the respondent, Manitoba Housing Authority (MHA). While a tenant, a serious and prolonged bedbug infestation developed in the building in which his suite was located. 3 In September of 2008, the applicant received a notice of termination from MHA.

In early November of 2008, the applicant and MHA entered into an agreement mediated by the Residential Tenancies Branch (the RTB) that allowed the applicant to remain in his rental accommodations until November 30, 2008. The applicant was unable to find alternate accommodations by the specified time and simply remained in his rental unit, which he finally vacated on December 5, 2008. 4 When he vacated MHA’s premises, the applicant had nowhere to go and sought shelter with the Salvation Army.

However, he could not take his personal belongings with him to the shelter and, therefore, only took with him the clothes he was wearing. He left all of his personal belongings in the rental unit he had vacated. 5 MHA changed the locks to the applicant’s unit shortly after his departure, but the caretaker of the premises allowed the applicant back in on several occasions for periods of up to six hours at a time. While in the unit, the applicant washed, dried, bagged, sealed and boxed his personal belongings.

The boxes and bags left in the rental unit contained all of the applicant’s personal property, including household items, kitchen and bathroom items, clothing and footwear, personal hygiene items and books. In addition, they contained the applicant’s family photo albums, identification papers, eyeglasses and dentures. The applicant was never advised that his belongings had to be removed by a certain date, failing which MHA would remove and dispose of them. 6 In January of 2009, MHA appointed a new manager for the building in which the applicant had resided and where his belongings remained.

The new manager’s priority was to deal with the bedbug infestation, which included fumigating the entire building. 7 In early February of 2009, the caretaker and the resident manager went into the applicant’s unit and, upon seeing the boxes and bags, hired a contractor to remove them. There is no evidence that either the caretaker or the resident manager investigated the contents of the boxes and bags prior to ordering their removal. 8 Cursory efforts were made to locate the applicant prior to the disposal of his belongings.

The resident manager called the phone number on the applicant’s file, but not surprisingly, found it to be out of service. MHA was aware of the fact that the applicant had support workers through the auspices of the Community Mental Health Program and the Canadian Mental Health Association, as well as a coordinator through the Employment and Income Assistance Program. Despite having contact information for the above-noted support workers, MHA made no efforts to contact the applicant through those workers to advise him that his belongings were to be

removed from the property and disposed of. 9 When the applicant attended the premises on February 5, 2009, he discovered that his property had been removed anddisposed of. 10 The applicant filed a claim with the RTB and, following a hearing, was awarded compensation in the sum of $2,000. 11 MHA appealed the RTB award and the RTC allowed the appeal, rejecting the applicant’s claim in full.

At the hearing beforethe RTC, the applicant had some assistance from one of his mental health workers. 12 The RTC found that the applicant’s belongings had been abandoned in accordance with the provisions of s. 106(1) of TheResidential Tenancies Act, C.C.S.M., c. R119 (the Act).

In its reasons it stated: In the case before the Panel, the available evidence clearly established that given the prevailing issue of bed-bug infestation within thebuilding and suite, the visible sighting of bed-bugs within the suite in February 2009 prior to the items being removed and disposed of,the apparent lack of integrity of the packaging materials used by the tenant, and the passage of time of some two months duration duringwhich time the tenant’s abandoned property sat unattended within a bed-bug infested environment, any landlord would have beensatisfied on reasonable grounds that the items of abandoned property, as per subsection 106.1(2)(b), were “unsanitary or unsafe tostore”.

Accordingly the landlord was within his legal right to remove the items and dispose of them at an appropriate disposal facility.

Section 106.1(2) of the Act specifically applies to the facts of this case.

Section 106.1(2) of the Act does not require that the landlordcontact nor even attempt to contact the tenant prior to disposing of the items in question, nor does it require any inventory to be made bythe landlord of the items prior to the removal and disposal of same, nor does it require the landlord to compensate the tenant in anymanner for the unsanitary and unsafe items which had been removed and disposed of by the landlord. Specifically,

section 108 of theAct states: Substantial compliance protects landlord 108 A landlord who substantially complies with this

Part is not liable to the tenant or any other person for loss suffered by the tenant orother person as a result of the removal, storage, disposal or sale by the landlord of abandoned property. 13 The applicant alleges that the RTC erred in law when it rejected his claim for compensation.

He alleges that the followingerrors were committed: 1) that the RTC incorrectly applied s. 106(1) of the Act when it found that the applicant’s property was abandoned as opposed to beingstored by agreement; 2) that the RTC erred in finding that the applicant’s property was unsafe in that it did not properly assess the evidence to determine ifMHA’s determination was reasonable; 3) that the RTC failed to consider whether MHA could rely on s. 106.1(2) of the Act because MHA itself created the condition thatcaused the damage; 4) that the RTC failed to consider whether MHA complied with its obligations under ss. 106.1(1) and 106.2 of the Act; and 5) that the RTC failed to consider whether MHA had failed to reasonably accommodate the applicant in accordance with the provisionsof The Human Rights Code, C.C.S.M., c.

H175 (the Code). 14 The test to be met on a leave application is well settled. It was recently restated in Edison Rental Agency v. Klippenstein,2011 MBCA 3 (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. Appealsare limited to questions of jurisdiction or law, and an applicant needs leave to appeal. Three factors are considered by a judge indetermining whether 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 PublicInsurance Corp. (2003), 2003 MBCA 95 , 50 C.C.L.I. (3d) 1; 2003 MBCA 95 (Man.

C.A. [In Chambers])). 15 The relevant sections of the Act dealing with the issues raised by this application are as follows:

PART 7 TENANT’S PERSONAL PROPERTY “Abandoned property” defined 106(1) In this Part, “abandoned property” means personal property left by a tenant in a rental unit or residential complex that thetenant has vacated or abandoned or from which the tenant has been evicted, other than property being stored under an agreement with thelandlord. Landlord’s powers re abandoned property 106(2) A landlord may remove, store, sell or dispose of abandoned property only in accordance with this Part.

When property to be returned to tenant 106(3) The tenant or the owner of an item of abandoned property stored by the landlord may claim the item by paying the landlordthe reasonable cost of removing and storing the abandoned property and the landlord shall give the item to the tenant or owner. Application 106.1(1) This

section does not apply to abandoned property that is an item such as a personal document or photograph that by its natureis impossible or difficult to replace and is of little or no monetary value. Worthless, unsanitary or unsafe property 106.1(2) If a landlord is satisfied on reasonable grounds that an item of abandoned property (

a) has no monetary value; or (

b) is unsanitary or unsafe to store; the landlord may remove the item and dispose of it at an appropriate disposal facility.

Landlord to prepare inventory 106.1(3) A landlord may remove abandoned property that has monetary value and is not unsanitary or unsafe to store but must, at the earliest reasonable opportunity, (

a) make a reasonable effort to contact the tenant to give the tenant an opportunity to claim the property; (

b) prepare an inventory of the property in the prescribed form and give a copy of it to the director; and (

c) give a copy of the inventory to the tenant, and if the copy is mailed to the tenant, it is sufficiently given if it is mailed to the tenant’s last known address. Property of little value 106.1(4) If, after complying with subsection (3), the landlord is satisfied on reasonable grounds that the proceeds from selling an item of abandoned property would be less than the reasonable costs of removing, storing and selling it, the landlord may (

a) give the item to a charitable or other non-profit organization; or (

b) dispose of the item at an appropriate disposal facility. Storing other property 106.1(5) A landlord who removes abandoned property that cannot be disposed of under subsection (2) (worthless, unsanitary or unsafe property) or (4) (property of little monetary value) must, subject to any direction of the director, store the property in a safe place and manner for at least 60 days. Personal documents and photographs 106.2 A landlord may remove abandoned property referred to in subsection 106.1(1) (personal documents and photographs) but must (

a) comply with the requirements set out in clauses 106.1(3)(

a) to (c); and (

b) subject to any direction of the director, store the property in a safe place and manner for at least 60 days. Substantial compliance protects landlord 108 A landlord who substantially complies with this

Part is not liable to the tenant or any other person for loss suffered by the tenant or other person as a result of the removal, storage, disposal or sale by the landlord of abandoned property. 16 In arguing that the RTC erred in finding that his property had been abandoned, the applicant argues that the RTC failed to consider whether there existed an agreement between the applicant and the landlord to store the property in question. The applicant argues that an implied agreement existed and that the RTC failed to consider the existence of such an agreement.

The applicant argues that the RTC failed to provide any analysis as to how it reached its conclusion or refer to evidence in support of its finding that the property had been abandoned. 17 In reply, both MHA and the RTC take the position that the issue the applicant wishes to raise is one of mixed fact and law. They further argue that the decision of the RTC demonstrates that it properly considered the definition of abandoned property and then

applied that definition to the facts of the case before it. MHA also points out that the fact that the RTC reviewed and considered the contents of a letter of explanation that the applicant had provided strengthens its argument that the RTC considered all of the evidence. It finally argues that the fact the applicant does not agree with the conclusion arrived at by the RTC does not in itself raise a question of law or jurisdiction. 18 I accept MHA’s argument that this proposed ground of appeal is one of mixed fact and law.

The RTC clearly considered the applicable law and applied that law to the facts before it and reached the conclusion that it did. This is not a question of law or jurisdiction, and leave to appeal on this ground is denied. 19 As to his second point, the applicant alleges that the RTC erred when it came to the conclusion that the property was unsafe or unsanitary as there was no evidence before it as to the condition of the contents, let alone the fact that someone actually looked at the contents.

He argues that the test of reasonableness is to be applied not to the premises, which he argues the RTC did, but to the items themselves. He argues that the RTC mischaracterized the correct legal test and asked itself the wrong question, which is an error in law. 20 MHA again argues that this issue is one of mixed fact and law. It takes the position that the RTC considered the lack of integrity in the packaging, the length of time the property had been left in a bedbug-infested environment and the visible evidence of the bedbugs.

In any event, MHA argues that such an issue is not of sufficient importance to warrant the attention of this court. 21 The RTC endorsed the position taken by MHA. It also points out that the Act does not provide any specific criteria that are required to satisfy a finding under s. 106.1(2) , and that it is left to the RTC to determine, on the basis of the evidence that is before it, whether property is safe or unsafe.

It argues that, in the circumstances of this case, that is exactly what it did and therefore did not err. 22 Again, as with the previous ground, the applicant seeks to raise an issue that is one of mixed fact and law. Furthermore, I am satisfied that the RTC had before it overwhelming evidence of the extent of the bedbug infestation on which to found its conclusion that the content of the packages might be unsafe.

Accordingly, I deny leave on this ground. 23 The applicant alleges that the RTC erred because it failed to consider whether MHA could rely on the abandonment provisions of the Act when the problem arose because of its actions or inactions in preventing the bedbug infestation. He argues that the RTC erred when, in coming to its finding of abandonment, it failed to consider ss. 58 and 59 of the Act , which oblige a landlord to maintain appearance and repair premises.

He also argues that the RTC should have considered s. 55(1) of the Act that provides for the payment of compensation upon a breach of a tenancy agreement. 24 Both MHA and the RTC point out that this argument was not raised before the RTC, that it is a matter of mixed fact and law and that there is a lack of evidentiary basis on which to consider it. In addition, counsel for the RTC points out that this argument moves the whole issue away from that of compensation, which is how this case originated, to one of breach of agreement.

Finally, MHA argues that, at the time the issue of abandonment arose, there was no tenancy agreement in place as it had been terminated. 25 As argued by MHA, this ground was not raised before the RTC. That is sufficient reason to deny leave to raise it now. See Dorge v. Cummine et al. , 2004 MBCA 86 . 26 The applicant alleges that the RTC failed to consider whether MHA properly followed s. 106.2 in that some of the applicant’s belongings were protected under s. 106.1(1) .

He alleges that the RTC should have found that no inventory was taken and the goods were not properly stored for a period of 60 days, as required by the Act , and that such a failure is an error in law. 27 MHA argues that the applicant never informed it that some of the documents or belongings in the bags and boxes were of a protected nature. The RTC argued that it found that MHA had attempted to inform the applicant as to what was transpiring and that was sufficient to justify its decision. 28 With this ground of appeal, the applicant clearly raises an issue of law alone.

The undisputed evidence before the RTC was that some of the contents of the boxes or bags in the applicant’s suite would be encompassed by the wording of s. 106.1(1) , yet there appears to have been no consideration by the RTC of the provisions of s. 106.2 . The extent that the RTC might be subject to a positive duty and that it failed in discharging that duty are of critical importance to the applicant, but they might well have an importance greater than in this case alone. They are issues that can and should be considered by this court.

I therefore grant leave on the following question, namely: Did the RTC commit an error in law by failing to consider and apply the provisions of ss. 106.1(1) and 106.2 of the Act ? 29 The last error that the applicant wishes to raise is one that was not advanced before the RTC and that is that the RTC failed to consider whether MHA reasonably accommodated the special needs of a tenant with a mental disability, as mandated by the Code .

The applicant argues that a landlord who breaches the Code and discriminates against a tenant cannot be said to have complied with the Act and by not inquiring into this issue on its own motion, the RTC erred. He concedes that the issue of whether the Act overrides the Code is not a settled matter, but that this is an ideal case for this court to provide clarification and guidance on the issue.

The applicant argues that if the RTC was bound to apply the Code , its failure to do so was an error in law. 30 MHA and the RTC both agree that the applicant seeks to raise a novel and interesting issue, but they take the position that because the matter was not raised before the RTC, there is a complete lack of evidentiary basis to support or even permit a review of this issue by this court.

In addition, the RTC argues that before this court considers the matter, it should have the opportunity of addressing the matter itself as opposed to having this court address the matter in a vacuum. 31 As with the ground dealing with reliance on the abandonment provisions of the Act , this ground is also being raised now for

the first time. I agree that the ground is a novel one and that it would have been difficult for the applicant to raise it before the RTC without the benefit of counsel, but the fact still remains that the applicant is asking this court to deal with the issue without the benefit of an evidentiary basis on which to consider it. This question cannot properly be addressed by this court without a factual foundation that simply is not there at the present. Accordingly, I deny leave on this ground. 32 In conclusion and

summary, leave is therefore granted on the following question: Did the RTC commit an error in law by failing to consider and apply the provisions of ss. 106.1(1) and 106.2 of the Act ? J.A.