Melanson v. Castel, 2011 MBCA 92

Citation: Melanson v. Castel, 2011 MBCA 92 Date: 20111116 Docket: AI 11-30-07577 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) F. Melanson ) on his own behalfFRANK MELANSON ) ) M. Castel (Landlord) Applicant ) on her own behalf ) ) T. D. Gisser- and - ) for The Residential Tenancies ) Commission ) MINNIE CASTEL ) Chambers motion heard: ) November 3, 2011 (Tenant) Respondent ) ) Decision pronounced: ) November 16, 2011 MICHEL A.

MONNIN J.A. 1 The applicant seeks leave to appeal from a decision of the Residential Tenancies Commission (RTC). 2 Leave to appeal from a decision of the RTC may only be taken on a question of law or jurisdiction. 3 In Edison Rental Agency v. Klippenstein, 2011 MBCA 3, I set out the test that an applicant must meet as follows (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 , 40C.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])). 4 The applicant’s claim before the RTC was for rent, damages, cleaning, late payment, utility bills and costs totalling$3,170. The RTC denied most of the applicant’s claim and ultimately awarded him $325 to cover the cost of certain repairs. 5 The applicant alleges numerous errors, which he himself summarizes as follows: i. Making an error of law in its finding of facts, appreciation of evidence, application and

interpretation of the law. ii. Giving the Residential Tenancies Act [C.C.S.M., c. R119] an

interpretation that it cannot reasonably bear. iii. Taking into account irrelevant and prejudicial testimony despite its assertion that this testimony has not been relied on. 6 In his brief, the applicant goes on to detail all of the errors which he attempts to qualify as errors in law or to be in excess ofthe RTC’s jurisdiction. 7 The matter before the RTC was fact-driven and decided on credibility findings. As much as the applicant now wishes toqualify those findings as either points of law or issues of jurisdiction, they still remain factual findings.

Alleging that they are points oflaw does not make them so. 8 The applicant has not met, on all three branches, the test for leave to be granted and his application is accordinglydismissed. J.A.