Dhillon v. Prejet et al., 2011 MBCA 76

Citation: Dhillon v. Prejet et al., 2011 MBCA 76 Date: 20110902 Docket: AI 11-30-07587 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) B. Dhillon ) on her own behalf BALWINDER DHILLON ) ) N. Dubois (Landlord) Applicant ) on behalf of the Respondents ) - and - ) T. D. Gisser ) for The Residential NICK PREJET and ) Tenancies Commission NICOLE DUBOIS ) ) Chambers motion heard: (Tenants) Respondents ) July 28, 2011 ) ) Decision pronounced: ) September 2, 2011 MARC M.

MONNIN J.A. 1 The applicant, Balwinder Dhillon, seeks to appeal a decision of The Residential Tenancies Commission (the RTC) made January 4, 2011, whereby the RTC ordered that the applicant was to pay the respondents the sum of $855. 2 The applicant’s main contention relates to the manner in which the RTC dealt with an appeal taken by the respondents from a decision of the Residential Tenancies Branch, where the applicant received a decision partially in her favour.

More particularly, she alleges that, at the hearing before the RTC, she was unable to properly present her evidence and make reference to documentation she thought relevant. As well, the applicant alleges that the RTC erred in not recognizing the legal requirement that the respondents were required to provide a written notice of termination. 3 In order to obtain leave to appeal a decision of the RTC, this court has stated on numerous times the criteria that must be met:

a) the appeal must involve a question of jurisdiction or of law as opposed to requiring the court to become involved in assessing issues of fact;

b) the case must be one that warrants the attention of the court; i.e., that it is of sufficient importance, not just in the immediate case, but in other similar disputes; and

c) there must be an arguable case of substance; that is, one with a reasonable prospect of success. See J.C. Property Management v. Benard , 2011 MBCA 1 at para. 7 . Analysis 4 The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ), deals with the conduct of hearings before the RTC at ss. 165(3), 165(4), 169(1), 169(2) and 169(3). These sections read: Procedure 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. Hearings conducted orally or in writing 165(4) The commission may conduct a hearing orally, including by telephone, or in writing or partly orally and partly in writing.

Evidence 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. Commission may consider relevant information 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.

Right of parties to examine filed material 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. 5 As well, I requested and was provided with a copy of Guidelines Before the Residential Tenancies Commission, Parts 1-8 , which is provided to parties from the RTC in advance of the hearing when they receive a notice of hearing.

In this case, the document was provided to the applicant, attached to a notice of hearing sent to her on December 7, 2010. 6 The document advises the prospective parties that the hearing before the RTC is an entirely new hearing and that the parties must present their evidence and witnesses anew in that context. Any written material is requested to be submitted at least five working days prior to the hearing. 7 Review of the RTC’s decision in this case indicates that the applicant attended and gave evidence. The decision summarizes the applicant’s evidence and submissions.

The RTC, in its decision, states that it preferred the evidence of the respondents over that of the applicant and as a result of that evidence, concluded that the applicant had failed to provide vacant possession at the beginning of the lease, thereby entitling the respondents to terminate the tenancy pursuant to s. 88(1) of the Act . 8 I am unable to find from the applicant’s material or the reasons of the RTC that the applicant has an arguable case that the RTC erred in law or breached the rules of natural justice. 9 Even if the RTC failed to allow the applicant to refer to a document presented at the hearing, that would have been in keeping with the RTC’s guidelines and rules requiring advance notice.

I am unable to conclude from the applicant’s material that she was not provided with a reasonable opportunity to present her case in accordance with the RTC’s procedures. Nor does the applicant’s material support the argument that there was an error of law in the RTC’s application of ss. 84 and 85 of the Act . 10 Leave to appeal is consequently denied. J.A.