Peters v. Michaud et al., 2011 MBCA 69

Citation: Peters v. Michaud et al., 2011 MBCA 69 Date: 20110825 Docket: AI 11-30-07596 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LYNN PETERS ) L. Peters ) on her own behalf (Landlord) Applicant ) ) M. Michaud and ) J. Nowlin ) on their own behalf ) - and - ) T. D. Gisser ) for The Residential ) Tenancies Commission ) ) Chambers motion heard: MIREILLE MICHAUD and ) July 21, 2011 JOEY NOWLIN ) ) Decision pronounced: (Tenants) Respondents ) August 25, 2011 BEARD J.A. I.

THE ISSUES 1 The landlord has applied for leave to appeal from an order of the Residential Tenancies Commission (the RTC) under s. 175(2) of The Residential Tenancies Act , C.C.S.M., c. R119 ( The Act ) that dismissed the landlord’s claim in its entirety. In her oral argument, the landlord stated that she was appealing on the following grounds: (

i) that the RTC misapplied its discretion, according to its laws, policy and procedures, to accept evidence; (ii) that perjury was committed at the hearing; (iii) that collusion was threatened – she said that, while there was no evidence that it was carried out, the decision supports that theory; and (iv) that, according to the RTC policy, there was no fair and just trial. 2 In reviewing her arguments, it is clear that she is appealing on the following grounds: (

i) that the hearing was not fair and just due to the RTC’s following decisions: - refusing to grant an adjournment of the hearing to permit her to appear; - failing to make its own decision regarding the adjournment, but instead permitting the tenants to veto her request; and - refusing to permit her agent to file a significant amount of documentary evidence on the morning of the hearing; and (ii) that the RTC erred in rejecting the evidence presented by her agent and accepting the evidence of the tenants in relation to the factual issues between the parties. 3 The tenants did not file any written material and made only a few, very cursory comments, essentially agreeing with the decision of the RTC.

II. STANDARD OF REVIEW

4 The standard of review on an application for leave to appeal from a decision of the RTC is well settled, and I can dono better than to quote from the decision of Michel A. Monnin J.A. in Edison Rental Agency v. Klippenstein, 2011 MBCA 3 (inchambers) 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 [Residential Tenancies] Commission iswell settled and has been set out in numerous decisions of this court. See 4469667 Manitoba Ltd. v.

Thomas, 2009 MBCA 20 (inchambers); Manitoba Housing Authority v. Bertram, 2006 MBCA 49, 205 Man.R. (2d) 61 (in chambers); Procak v. Hayward,2006 MBCA 84, 205 Man.R. (2d) 150 (in chambers); and 3391397 Manitoba Ltd. v. Winnipeg City Assessor (1998), (MB CA), 126 Man.R. (2d) 63 (in chambers). A recent enunciation of the test is to be found in the reasons of Freedman J.A. inManitoba 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 analysisof conflicting 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 ,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 immediatecase, 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])). See also the decision of Freedman J.A. in Aziz v. Haque et al., 2011 MBCA 58 at para. 2 (in chambers). 5 Thus, this court has no jurisdiction to determine any ground of appeal that involves a determination of either fact ormixed fact and law.

Further, the jurisdiction to determine a question of law or jurisdiction is limited to questions of importance not justfor the immediate case, but in determining other similar disputes which are apt to arise in the future and in which there is an arguablecase of substance; i.e., one with a reasonable prospect of success. III. THE FACTS 6 While the background information is lacking in details, it appears that the tenants rented a house from the landlordwith a view to possibly purchasing it.

The tenants allege that the property was in poor shape when they moved in and that they did asignificant amount of work to repair the property, some of which was in lieu of paying rent. For some unexplained reason, the sale didnot materialize and the tenants moved out.

Thereafter, the landlord commenced proceedings against them, alleging rental arrears,significant damage to the property and a failure to clean the property upon moving out. 7 The landlord did not appear at the hearing before the RTC, which took place on May 19, 2011, having advised theCommission that, during the summer, she works on construction outside of Winnipeg and only comes back to the city before October ifit is raining. The landlord had asked to have this matter adjourned to October, but the tenants were opposed and wanted the matter dealtwith.

The RTC refused an adjournment to October on the basis that such a lengthy delay was contrary to the interests of resolvingdisputes in an expeditious way and was prejudicial to the tenants. There was no request for a shorter adjournment. 8 An agent appeared at the hearing for the landlord and was granted permission to represent the landlord to bothpresent evidence and make submissions. 9 The agent presented a significant amount of written evidence to the RTC at the commencement of the hearing andrequested that it be filed and form part of the evidence of the landlord.

The agent stated that she had only been approached by thelandlord two days earlier and she could offer no explanation for the late filing of the material.

She said that she had warned the landlordthat material that was presented late may not be accepted, and she told the RTC that, if the material was not admitted, she was stillprepared to proceed with the hearing. 10 The RTC refused to permit the late material to be filed, firstly, because there was no explanation for the late filing and,secondly, because the material was lengthy, putting the tenants in a prejudicial position by not being able to review the material in atimely way.

The RTC noted that the landlord had not asked for a brief adjournment, so the hearing proceeded on its merits. 11 The agent presented the landlord’s claim on the merits, although it was lacking in documentary evidence in support,which the landlord said formed part of the late evidence that was ruled inadmissible. The amount of the claim was significant, totalling$12,543, which included several thousand dollars for rental arrears, allegations of several thousand dollars in damage and a significantbill for cleaning the premises after the tenants vacated.

The only witness for the landlord was the agent, who had no personal knowledgeof any of the allegations that she put forward for the landlord.

12 Both tenants testified as to their rental arrangement with the landlord, including the condition of the premises when they moved in and out and the amount of work that they did to improve the property during their tenancy.

Further, they had three witnesses who testified from their own personal knowledge as to the condition of the property when the tenants moved in, the amount of work that the tenants did to repair the property and its condition when they moved out. 13 After reviewing the evidence, the RTC preferred that of the tenants and their witnesses, who had personal knowledge of the facts to which they testified, over that of the agent, who did not.

Also negatively affecting the credibility of the landlord’s evidence was the complete lack of documentary evidence to support significant parts of the landlord’s claim and the fact that there were discrepancies between the amount claimed for rental arrears as it appeared in the claim, in the documents that were before the RTC and in the agent’s presentation. On that basis, the RTC dismissed the landlord’s entire claim. IV. ANALYSIS The Law - Fair and Just Hearing 14 The landlord argued that she did not get a fair and just trial for the reasons set out in para. 2 of this decision.

In support of her position, she made reference to an earlier version of the Residential Tenancy Guidelines and to an

article by Alvin M. Zivot, Q.C., a former Chief Commissioner of the RTC, entitled “The Residential Tenancies Commission … provides the opportunity for a fair hearing.” 15 While the question of the procedure of the RTC has been commented upon by this court in many decisions, one of the pivotal quotes is found in Dubbert v. White , [1998] M.J. No. 15 (in chambers) (QL) (at paras. 3-6 ): The sections of The [ Residential] Tenancies Act , S.M. 1990-91, c. 11 – Cap. R119 that deal with the conduct of hearings before the Residential Tenancies Commission are ss. 165(3) and (4), and 169(1), (2) and (3).

These sections read: 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. 165(4) The commission may conduct a hearing orally, including by telephone, or in writing or partly orally and partly in writing. 169(1) Evidence may be given before the commission in any manner that the commission considers appropriate, and the commission is not bound by the rules of law respecting evidence applicable to judicial proceedings. 169(2) In addition to evidence given in the course of a hearing, the commission may consider relevant information in the possession of the director or that is otherwise obtained by the commission, if the commission informs the parties of the nature of the information and gives them an opportunity to explain or refute it. 169(3) The commission shall give the parties to an appeal a reasonable opportunity to examine all material filed with the commission that is relevant to the appeal.

In addition, the Commission has published a document entitled “Guidelines Before The Residential Tenancies Commission – Parts 1-8.” The applicant alleges that a number of the guidelines set out in this document were breached during the course of her appeal. She clearly believes that she was not dealt with fairly by the Commission. The only consideration that I can address at this time is whether there exists the possibility of a[n] error on a point of law arising from the decision of the Commission. I have not been persuaded that there is.

The Commission hearings are not conducted in the same manner and with the same rules that would apply in a court. They need not be as is specified in the excerpts from the Act that I have set out earlier in these reasons. Unless there can be seen to be a clear breach of the rules of natural justice in the manner in which the Commission conducted the appeal hearing, it is not for this Court to interfere in what is essentially its internal procedure.

I cannot make the finding that the Commission either breached its own legislation or rules or that the manner in which the hearings were conducted consisted in a breach of the rules of natural justice. See also the decision of Scott C.J.M. in Perez-Martin v. Douglas , [1998] M.J. No. 333 at para. 4 (C.A. (in chambers)) (QL). 16 The current version of the Guidelines Before the Residential Tenancies Commission, Parts 1-8 is attached as

Schedule I. Decision Not to Grant the Adjournment 17 While the landlord argued before me that she had had several conversations with someone in the RTC office regarding the hearing date, that information was not before me in any form that was admissible or that could be taken into consideration on the appeal, even if it were otherwise relevant to a question of law or jurisdiction. 18 The RTC considered a request on the part of the landlord to adjourn the matter from May to October, and it dismissed that request.

In so doing, it considered the relevant issues, including that it was contrary to the interests of resolving disputes in an expeditious way and that it was prejudicial to the interests of the tenants. In support of the RTC’s decision, it should be noted that guideline 5 states that the RTC can grant an adjournment of a hearing, once set, only in exceptional circumstances. 19 The RTC considered the positions of the landlord, through her agent, and of the tenants, and made a decision on the facts that it was provided, which was consistent with its guidelines and conformed with the right to be heard.

It did not commit any error of law or jurisdiction in arriving at that decision. Veto by the Tenants

20 The landlord argued that she did not get a fair hearing because the RTC breached its policy requiring that it determine procedural matters by permitting the tenants to veto her request for an adjournment. What the RTC said in its decision was that the tenants were opposed to an adjournment and wished the matter dealt with. 21 When one party makes any type of motion, every other party has the right to make submissions on that motion, that is, the right to be heard. The right to be heard is one of the principles of natural justice and is reflected in s. 165(3) of The Act (see para. 15 above).

The fact that the RTC’s decision was in accordance with the position of the tenants does not mean that they were granted a veto or that the RTC failed to make a decision. It only means that the RTC determined that, taking into account all of the evidence and the submissions, their position had more merit than that of the landlord. 22 Thus, in permitting the tenants to make submissions on the landlord’s request for an adjournment, the RTC was giving effect to the tenants’ legal right to be heard.

This argument by the landlord does not raise a question of law or jurisdiction and, therefore, is not subject to appeal. Decision Not to Accept the Late Evidence 23 The landlord also argued that she did not get a fair hearing because the RTC refused to accept or consider the written material that supported her claim.

The landlord’s agent requested that she be permitted, on behalf of the landlord, to file a large amount of written material at the beginning of the hearing, but was not able to provide any explanation as to why it was being filed so late. 24 The RTC noted that, in addition to the lack of any explanation for the late filing, if the documents were accepted it would put the tenants in a prejudicial position by not being able to review the material in a timely way.

Accepting the documents for filing on the morning of the hearing would be in breach of the guidelines dealing with the filing of material, which state that parties should have a reasonable opportunity to examine all material (guideline 11) and that written material must be filed with the RTC at least five working days before the hearing (guideline 13). Further, s. 169(3) of The Act states that all parties must have a reasonable opportunity to examine all material that is filed with the RTC.

This would not be possible if the RTC accepted a large amount of material at the commencement of the hearing. 25 No request was made by the landlord’s agent for a short adjournment to permit the tenants to review those documents. Indeed, the landlord’s agent again stated that, if the documentary evidence was refused for admission, she was prepared to proceed with the hearing. 26 Again, I am not able to find any error of either law or jurisdiction in the decision of the RTC not to accept this material when it was presented.

It considered the arguments of the landlord’s agent and of the tenants and made a determination which was reasonable in the circumstances and in accordance with its own guidelines and The Act . Allegations of Perjury and Threats of Collusion 27 These allegations relate to the RTC’s findings regarding the credibility of the testimony and the evidence that was called by the parties.

In keeping with both s. 169(1) of The Act and guideline 6 that the formal rules of evidence do not apply, the RTC permitted the landlord’s agent to give what was clearly hearsay evidence and would have been inadmissible in a court of law. That said, it was required to weigh all of the evidence to determine what evidence was credible and which was worthy of more weight in order to find the facts of the case. It was entitled to make the finding that the hearsay evidence was less reliable than that of the witnesses giving first-hand evidence, especially as it related to the physical condition of the premises.

That is part of the fact-finding role of the RTC as the trier of fact. Whether or not the RTC erred in that fact-finding process is a question of fact and does not raise any question of law or jurisdiction, so it is not subject to appeal to this court. Rejecting the Evidence of the Landlord’s Agent 28 The last ground of appeal in para. 2 of this decision also raises a pure question of fact. As noted above, the determination of all factual issues rests solely with the RTC and its decision on factual issues is not subject to appeal to this court.

Conclusion 29 For the reasons set out above, I find that the RTC did not commit any errors of law or jurisdiction. It did not fail to follow the rules of natural justice, and the landlord was not subjected to an unfair or unjust hearing. The complaints that were raised by the landlord all related to decisions of either fact or mixed fact and law, which are outside the jurisdiction of this court. V. DECISION 30 The landlord’s application for leave to appeal is dismissed. J.A.

SCHEDULE I Guidelines Before the Residential Tenancies Commission Parts 1 - 8 1. All Commission hearings are informal. 2. Parties appearing before the Commission, with the exception of legal counsel, may dress informally. 3. The Commission may conduct a hearing orally, including by telephone, or in writing, or partly orally, and partly in writing. 4. Certain appeals may be heard before a panel of 3 or before a single Commissioner as provided in

section 147 of The Residential Tenancies Act . 5. The Commission may allow an adjournment after a hearing date has been set, but only in exceptional circumstances. 6. No formal rules of evidence are required for the hearing process; the Commissioner may admit any evidence which he or she considers reasonable. 7. All hearings of the Commission are open to the public unless otherwise ordered by the Commission. 8. The Commission will not hear claims that have not previously been heard at the Residential Tenancies Branch. Any new claims must be made at the Branch. 9.

An appeal will be by way of an entirely new hearing. (Hearing De Novo). The documentation filed with the Residential Tenancies Branch will not be transferred to the Commission for this hearing. If you choose to use any of the same evidence previously filed with the Branch, you must adhere to the guidelines hereinafter set out in paragraph 13. 10. Either party appearing before the Commission may be asked to speak first at the hearing. 11. The parties to an appeal may have a reasonable opportunity to examine all material filed with the Commission that is relevant to the appeal. 12.

Preliminary motions or objections shall be filed with the Commission five days before the hearing, including any applications for closed hearings. 13. If parties wish to submit written material, they shall file five (5) sets of all documents and/or two (2) sets of photographs, DVDs, CDs or diskettes at least five (5) working days before the hearing. 14. Complete disclosure of all documents and reports shall be made before the hearing as noted above. 15.

Section 161(2) of The Residential Tenancies Act states except as provided in subsection (2.1) or (2.2), an appeal shall be commenced by filing a notice of appeal in writing with the commission within 14 days after the person receives a copy of the decision or order of the director, or within such further time as the chief commissioner or a deputy chief commissioner permits. 16.

Section 161(2.1) of The Residential Tenancies Act states an appeal of a decision or order made by the director under paragraph 2 of subsection 154(1) respecting a contravention of subsection 32(5) or under paragraph 9 of subsection 154(1) shall be commenced by filing a notice of appeal in writing with the commission within seven days after the person receives a copy of the decision or order, or within such further time as the chief commissioner or a deputy chief commissioner permits. 17.

Section 161(2.2) of The Residential Tenancies Act states [where] a decision or order of the director has been corrected or amended under

section 160.1, an appeal of the decision or order, as corrected or amended, shall be commenced by filing a notice of appeal, (

a) if the corrected or amended decision or order relates to a matter referred to in subsection (2), within 14 days after the person receives a copy of the director’s decision under

section 160.1; or (

b) if the corrected or amended decision or order relates to a matter referred to in subsection (2.1), within seven days after the person receives a copy of the director’s decision under

section 160.1;

or within such further time as the chief commissioner or a deputy chief commissioner permits. 18. The Residential Tenancies Act does not authorize the awarding of costs to counsel. 19. The Commission will attempt to render decisions within 30 working days of hearing an appeal. The Commission will provide written reasons to any party requesting same. 20. The Commission does not permit its proceedings to be recorded in any way. 21. The parties to an appeal are to inform the Commission of any potential or perceived conflicts of interest at, or before, the commencement of the hearing.

Section 171.01 of The Residential Tenancies Act gives the Residential Tenancies Commission the authority to correct or amend its own Orders in specific circumstances as set out in

section 160.1. NOTE: Guidelines are subject to change. Please check with the Residential Tenancies Commission office to see if the guidelines are still the same.