Timbercreek v. Emhamed, 2012 MBCA 74

Citation: Timbercreek v. Emhamed, 2012 MBCA 74 Date: 20120713 Docket: AI 12-30-07814 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : ) M. Emhamed TIMBERCREEK ASSET ) on his own behalf MANAGEMENT INC. ) ) A. Campbell (Landlord) Respondent ) for the Respondent ) - and - ) T. D.

Gisser ) for The Residential Tenancies MUSBAH EMHAMED ) Commission ) (Tenant) Applicant ) Chambers motion heard: ) July 12, 2012 ) ) Decision pronounced: ) July 13, 2012 FREEDMAN J.A. 1 This application challenges the refusal by the Residential Tenancies Commission (the Commission), established under The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ), to grant an adjournment of a hearing to the applicant.

The applicant seeks leave to appeal the Commission’s order on a question of law or jurisdiction (as required by s. 175(2) of the Act ). 2 The applicant occupied residential premises under lease from the respondent. A dispute arose and the respondent filed a claim under the Act with the Residential Tenancies Branch (the Branch). The applicant and a representative of the respondent testified at the hearing before the Branch, which allowed the respondent’s claim. 3 The applicant filed an appeal with the Commission (the Commission), which set a date for the hearing of May 17, 2012.

The following, taken from the Commission’s decision dated June 15, 2012, explains what transpired: BACKGROUND Musbah Emhamed (Mr. Emhamed or the tenant) appealed the Order of the Residential Tenancies Branch (the Branch) dated April 4, 2012, Order No. W2012-001404 to the Residential Tenancies Commission (the Commission). The appeal was received by the Commission on April 20, 2012, and set down for May 17, 2012 at 1:30 p.m. On May 14, 2012, a faxed note was received by the Commission from the tenant advising of his inability to attend the hearing and requesting the matter be rescheduled.

The tenant was advised that due to the short notice of his request, he could deal with the adjournment request at the appeal hearing on May 17, 2012, by teleconference since he was out of province. The tenant declined to participate by teleconference. He was informed by the Commission secretary that his request would be put before the panel and a decision as to adjourning the matter would be up to the Commission panel. THE HEARING The landlord was represented by Ms. Amanda Campbell, Regional Leasing Coordinator for Timber Creek [ sic ] Asset Management Inc. (the landlord).

At the outset, the landlord was read the fax from the tenant requesting to reschedule the hearing. The landlord was asked whether she was prepared to adjourn to a new date. The landlord advised she has attended on at least one previous occasion respecting this matter and that she was simply not prepared to agree to the request.

The panel found based on the position of the landlord and the late request by the tenant the matter should proceed. 4 The decision then reviewed the evidence the Commission had heard and concluded that the applicant was responsible for the disputed rent and other charges and costs. 5 The applicant seeks leave to appeal the order arising from the decision on the basis that the Commission’s refusal to grant his request for an adjournment was “extremely harsh & unfair,” especially since there were extenuating circumstances preventing his appearance at the hearing (he was out of town). 6 The essential facts are not in dispute.

The request for an adjournment was received after the hearing date had been set, and only three days before the hearing was to commence. The applicant was given the opportunity to present his argument for an adjournment by telephone, but he declined that opportunity. In my view, these circumstances satisfy any concerns that might arise about due process. See the following comments of M. A. Monnin J.A. in Champagne v.

Stewart , 2005 MBCA 38 , 192 Man.R. (2d) 289 (at paras. 25-27 ): By law the Commission is given the authority to set its own procedure, and that authority includes the circumstances of whether or not to grant adjournments as well as fixing timeliness in which to have documents filed and served. What is important in my view is that when the Commission exercises its authority to grant or refuse adjournments, it has given the party applying for such an adjournment the opportunity of being heard and to fully explain the need for such an adjournment.

It must then be able to demonstrate that whatever decision it arrives at has been arrived at fairly and in accordance with the rules of natural justice. In this case, the Commission reached its decision after giving the applicant an opportunity to be fully heard on his request and then proceeded to provide him with alternative methods of being heard. That such means or methods did not suit the applicant does not render the Commission’s decision unfair or in breach of the principles of natural justice. On the facts of this case, I have not been persuaded that an issue of breach of natural justice arises.

The issue is one of exercising a discretion on a procedural matter. It is well within the competence of the Commission to decide, providing it is done fairly. I have not been convinced that it did anything but act fairly. 7 See also Manitoba Housing Authority v. Johnson , 2004 MBCA 8 , and Peters v. Michaud et al. , 2011 MBCA 69 , 268 Man.R. (2d) 308 , where Beard J.A. said (at paras. 18-19): 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. 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. 8 The applicant was afforded a reasonable opportunity to argue the case for an adjournment. He rejected that opportunity. He made no arrangements to have a representative argue the adjournment for him. In these circumstances, the Commission was justified in deciding on the adjournment request at the commencement of the hearing, even though the applicant was not present or represented.

Although not expressly stated in its reasons for denying the request, it is a reasonable inference to draw from the decision that the Commission found there existed no exceptional circumstances, as contemplated by the guideline 5 referred to in Peters , warranting an adjournment. 9 The process was properly followed by the Commission, and there was no error of law or jurisdiction, or breach of the duty of procedural fairness, in its refusal to grant the adjournment. 10 For these reasons, I dismiss the application for leave to appeal. I make no order as to costs. J.A.