Enns et al. v. Richard et al., 2012 MBCA 38

Citation: Enns et al. v. Richard et al., 2012 MBCA 38 Date: 20120417 Docket: AI 12-30-07753 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : ) B. N. Richard THEODORE ENNS and ) on behalf of the Applicants KATHERIN ANITA ENNS ) ) T. Enns and (Landlords) Respondents ) K. A. Enns ) on their own behalf ) - and - ) T. D.

Gisser ) for The Residential ) Tenancies Commission BEN NAPOLEON RICHARD and ) TANYA TOKEVICH ) Chambers motion heard: ) April 12, 2012 (Tenants) Applicants ) ) Decision pronounced: ) April 17, 2012 FREEDMAN J.A. 1 The respondents (the landlords) claimed from the applicants (the tenants) arrears in rent, and sought an order of possession as a result of non-payment of rent, in a proceeding before the Residential Tenancies Branch (the Branch) established pursuant to The Residential Tenancies Act , C.C.S.M., c.

R119 (the Act ). 2 The Branch granted both orders sought and ordered the tenants to move out of the landlords’ premises. The tenants appealed, and a hearing was conducted by the Residential Tenancies Commission (the Commission) established pursuant to the Act . Both parties presented evidence and argument at the Commission hearing. The Commission rejected the appeal, and the tenants now seek leave to appeal that decision. 3 The Act provides an applicant with a very limited opportunity to appeal a decision or order of the Commission to this court. See s. 175(2) of the Act , and Edison Rental Agency v.

Klippenstein , 2011 MBCA 3 , leave to appeal to S.C.C. dismissed, [2011] S.C.C.A. No. 69 (QL). Appeals are limited to questions of jurisdiction or law, and an applicant needs leave to appeal. See Manitoba Housing Authority v.

Horvat , 2010 MBCA 43 at para. 3 , 255 Man.R. (2d) 42 . 4 Three factors are considered by a judge in determining whether to grant leave: 1. the question must be truly one only of jurisdiction or of law, and not one which involves a consideration or analysis of conflicting factual issues; 2. the case must be of sufficient importance to warrant the attention of the court; and 3. there must be a reasonable prospect of success. See, e.g., Winnipeg Airports Authority Inc. v. EllisDon Corp. , 2011 MBCA 51 at para. 1 , 268 Man.R. (2d) 66 . See also Rolling River School Division v.

Rolling River Teachers’ Association of the Manitoba Teachers’ Society et al. , 2009 MBCA 38 , 236 Man.R. (2d) 249 , where Chartier J.A. referred to cases where there is “an exceptional set of circumstances … where it may be judicious to grant leave … when the denial of leave would result in an injustice” (at para. 13). No such circumstances exist here. 5 The decision of the Commission noted that the parties had agreed that the tenants had not paid rent for certain months. The three months for which arrears were awarded, namely, November and December of 2011 and January 2012, were among those months.

The tenants argued before me that, in a previous proceeding, the Commission had rejected the landlords’ attempt to be compensated for October 2011 rent, and thus the present decision and order of the Commission were res judicata . There is no basis for this argument since the present decision makes clear that no order was being made in respect of October rent.

6 The Commission rejected the tenants’ argument that rent was not payable for the three months since the tenants had earlier made an offer regarding the November rent which was rejected by the landlords. 7 There being no substance to the res judicata argument, I am left with issues raised by the tenants that are factual in nature. Those issues do not raise questions of law. For that reason, I dismiss the application for leave. I make no order as to costs. J.A.