Miller v. Schur et al., 2012 MBCA 57

Citation: Miller v. Schur et al., 2012 MBCA 57 Date: 20120525 Docket: AI 12-30-07755 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : T. NORMAN MILLER ) T. N. Miller ) on his own behalf (Landlord) Applicant ) ) A. C. Schur and - and - ) D. Camaclang ) on behalf of A. C. Schur ANDREA COLLEEN SCHUR ) ) B. T. Jones (Tenant) Respondent ) for the Residential Tenancies ) Commission - and - ) ) Chambers motion heard: JOYCE SCHUR ) March 29, 2012 ) (Guarantor) Respondent ) Decision pronounced: ) May 25, 2012 MARC M. MONNIN J.A. 1 Mr.

Norman Miller, the landlord, applies for leave to appeal an order of the Residential Tenancies Commission (the Commission) dated January 27, 2012, whereby the Commission recognized his claim to retain a portion of the security deposit and interest arising from a tenancy agreement between himself and Andrea Colleen Schur (the tenant). 2 The main point of contention at the hearing arose from the fact that the tenant had painted certain parts of the rental unit, the third floor of a 100 year-old house, without obtaining written permission to do so, contrary to the terms of the lease.

Although upset, the landlord did not request the tenant to repaint the suite at the time, but requested instead that she do so prior to her moving out. The tenant sublet the suite on April 12, 2011, with a possession date of May 1, 2011. The landlord’s evidence at the hearing before the Commission was that the subtenant, in a conversation at the time of the signing of the sublet agreement, indicated she would not move into the suite until the repainting had been completed. The tenant’s evidence was that no such conversation took place.

The landlord repainted the suite with his son and claimed the cost of doing so. He also claimed rent from May 1 to May 21, 2011, the period of time when the suite was unoccupied while the painting was being done. 3 In its decision, the Commission ordered the tenant to pay the costs for repainting the suite, but denied the other portion of the claim from the landlord with respect to the loss of rent from May 1st to May 21st. The Commission noted that the subtenant was not called to confirm that she would not have moved in before May 1st unless the repainting had occurred.

Furthermore, it found that the sublet agreement was worded in a way that reflected a sublet from May 1st onwards. Therefore, it denied that portion of the claim. 4 In his notice of motion for leave to appeal, the landlord raised seven grounds of appeal. At the oral hearing however, he did not pursue any of those grounds but indicated that the sole error of law upon which he wished to pursue his appeal was that the subtenancy agreement signed between the tenant and sub-tenant was not in the form prescribed by s. 44(2) of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ).

He argued that, under s. 46(2) of the Act , the subtenancy only commenced when occupancy by the subtenant started, which was May 22, 2011. Until that time, the tenant remained responsible for the rent. He argued that the Commission erred in law by not recognizing that the form of the sublet agreement was not as prescribed by law and that the legal obligations of the tenant continued until the 22nd of May. 5 As this was a new ground raised at the hearing of the motion, I gave the Commission’s counsel leave to file further material on that issue. He did so on April 13, 2012.

I also gave an opportunity to the landlord to file a brief in response, which he did on May 11, 2012. I have considered those briefs in reaching my decision on this motion. 6 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 . 7 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 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. 8 I have reviewed the seven grounds raised by the landlord in his original notice of motion for leave to appeal.

He did not pursue those on the hearing of the motion and I am satisfied after reviewing them that they do not raise an arguable error of law which warrants this court granting leave. 9 I will now deal with the issue raised by the landlord on the hearing of the motion, namely, the issue of the sufficiency of the sublet agreement or its adherence to the prescribed form.

While the issue was not referenced in the reasons for decision issued by the Commission, the landlord argues that it was raised and points to a question placed by me to the tenant at the hearing of the application for leave to appeal whereby he says she confirmed that it was. There is no formal evidence before me, namely, an affidavit from the landlord or someone, confirming that it was an issue raised before the Commission. That might be sufficient reason to deny leave to raise it now (see Dorge v. Cummine et al. , 2004 MBCA 86 ).

However, I will deal with it in any event. 10 Sections 43 to 46 of the Act provide as follows: Consent 43(1) An assignment or subletting is not valid unless the landlord gives written consent, which the landlord shall not withhold unreasonably. No charge for consent 43(2) A landlord shall not request or receive any consideration, directly or indirectly, for giving a consent, other than for the landlord’s prescribed expenses. Form of consent to assign or sublet 43(3) A consent to assign or sublet must be in the prescribed form and must be signed by the landlord.

Form of assignment 44(1) An assignment must be in the prescribed form and must be signed by the tenant and the new tenant and, if there is a written tenancy agreement, a copy must be attached. Form of subletting agreement 44(2) An agreement to sublet must be in the prescribed form and must be signed by the tenant and the sub-tenant and, if there is a written tenancy agreement, a copy must be attached. When assignment or subletting takes effect 45 An assignment or subletting takes effect on the date the new tenant or sub-tenant is entitled to occupy the rental unit.

Improper assignment or subletting 46(1) If a transfer of the right to occupy a rental unit does not comply with

section 43 , possession of the rental unit by the occupant does not constitute a tenancy agreement between the landlord and the occupant, but the occupant is nevertheless bound by the

obligations of the tenant who transferred the right to occupy the rental unit. Exception 46(2) Despite subsection (1), if a landlord indicates an intention to accept the occupancy as an assignment or a subletting under this Act , the transfer of occupancy is deemed to have been validly made from the time the new tenant or sub-tenant first occupied the rental unit.

Delivery of tenancy agreement 46(3) When a transfer of occupancy is deemed to be an assignment or subletting under subsection (2), the landlord or the tenant shall, upon request, give the new tenant or sub-tenant a copy of any written tenancy agreement respecting the rental unit. 11 It is worthy of note that while subs. (1) of s. 43 states that the subletting is not valid unless there is a written consent of the landlord, the requirement that a certain form for the consent be used, found in s. 43(3), does not indicate that the failure to use the prescribed form renders the sublet invalid.

As well, s. 44(2) , which stipulates the use of a prescribed form for the sublet agreement, does not indicate that failure to do so renders the agreement invalid. 12 The sublet agreement used in this case (Exhibit “H” to the affidavit of the landlord) shows that he, as landlord, consented to the subtenancy on April 12, 2011. The agreement is apparently in a form previously prescribed by the Commission. The new form now provides for the landlord ’ s consent to be given either with or without conditions.

The landlord says that had that form been used, he would have placed a condition requiring the repainting before the sublet took place. 13 The landlord’s argument, as I understand it, is that since the prescribed form was not used for the sublet or the consent, the transfer of occupancy is deemed to have been validly made only from the time the subtenant first occupied the rental unit. 14 However, when one reads s. 43 in the context of the Act , it would appear that the reference to s. 43 in s. 46(1) as to improper subletting is directed to a sublet without the consent of the landlord.

As indicated by s. 46(2) , once occupancy has taken place and the landlord indicates an intent to accept the occupancy, the validity of the sublet is deemed to have taken place as of the time of occupancy. 15 Furthermore, one must consider s. 45 of the Act , which stipulates that the subletting takes effect on the date the new subtenant is entitled to occupy the rental unit.

In this case, the agreement reached on April 12, 2011, with the landlord indicating his consent in writing, stipulated that the date on which the subtenant was entitled to occupy the premises was May 1, 2011, as found by the Commission. 16 The landlord now argues in his latest brief that had the proper form been used, he would have placed a condition that the suite be repainted.

That is speculative and appears to be contrary to the evidence accepted by the Commission. 17 Furthermore, the Commission has properly raised s. 187(2) of the Act , which provides: Substantial compliance with forms, etc. 187(2) Substantial compliance with requirements respecting the contents of forms, notices or documents is sufficient unless the director or the commission is of the opinion that it would result in unfairness to any person. 18 Commission counsel correctly points out that this would involve the court in assessing whether there was substantial compliance with the content of the form, which would be a question of fact or mixed law and fact. 19 I am therefore of the view that the landlord has not raised a ground of appeal which is based solely on an error of law, nor one that would have a reasonable chance of success.

I would therefore dismiss the application for leave to appeal, without costs. J.A.