Miller v. Baker et al., 2013 MBCA 77

Citation: Miller v. Baker et al., 2013 MBCA 77 Date: 20130823 Docket: AI 13-30-07980 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) T. N. Miller ) on his own behalf THOMAS NORMAN MILLER ) ) J. R. Baker and (Landlord) Applicant ) E. P. Foort ) on their own behalf ) - and - ) T. D. Gisser ) for The Residential Tenancies ) Commission JENNA RUTH BAKER and ) ERNIE PAUL FOORT ) Chambers motion heard: ) August 15, 2013 (Tenants) Respondents ) ) Decision pronounced: ) August 23, 2013 MARC M. MONNIN J.A. [ 1 ] Mr.

Miller, the landlord, applies for leave to appeal an order of The Residential Tenancies Commission (the Commission) dated May 16, 2013, whereby the Commission acknowledged his claim to retain a portion of the security deposit and interest arising from a tenancy agreement between himself and the tenants, Ms Baker and Mr. Foort, but significantly reduced an award for non-payment of rent previously made by a Residential Tenancies Officer. [ 2 ] The main point of contention at both hearings was with respect to a conversation that occurred between Mr. Miller and Mr. Foort, where it is alleged that Mr.

Miller made a comment which could be interpreted as having been a threat. Mr. Miller denied that the comment was intended as a threat with respect to the tenant. The Commission agreed with that view, but found that it was reasonable for the tenants to have reached the contrary

interpretation. The panel decided as follows: In the panel’s view, the tenants had reasonable grounds to believe that their safety was in jeopardy given the remarks made. It may be that there was a misunderstanding or the landlord did not intend to cause fear but his words did exactly that. In those circumstances, the tenants were entitled to give 5 day’s notice terminating the tenancy. …. [ 3 ] In his notice of motion for leave to appeal, the landlord raised nine grounds of appeal. In his brief he indicated that he would not be pursuing one of those grounds and abandoned another one at the hearing before me.

As, in his brief he attempted to raise two further grounds which had not been raised before the Commission, which I indicated that I would not be considering. [ 4 ] The first five grounds, in essence, seek to challenge the Commission’s finding accepting the tenants’ version of events that they had reasonable grounds to be concerned about their safety. The landlord challenges that finding, claiming that he had provided documentary evidence which raised questions as to the tenants’ credibility.

He also seeks to question the finding on the basis that the Commission had no independent third-party evidence upon which to make that determination. [ 5 ] The next two grounds of appeal relate to the fact that Mr. Miller requested a review of the decision rendered by the Commission. In a letter dated June 3, 2013, the Chief Commissioner of the Commission replied that the Commission could not review or reconsider its decision. [ 6 ] An appeal lies to the Court of Appeal from a decision of the Commission pursuant to s. 175(2) of The Residential Tenancies Act , C.C.S.M., c.

R119 (the Act ), but is limited to questions of jurisdiction or law with leave obtained from a judge at this court.

[ 7 ] The principles governing an application for leave to appeal have been reviewed by this court on many occasions. I must consider three factors, namely:

a) Whether the question is truly one of jurisdiction or of law and does not involve the court reviewing factual issues;

b) That the case is one that warrants the attention of the court; and

c) That there is an arguable case of substance, i.e., one with a reasonable prospect of success. (See The Children’s Clubhouse v. Helgason et al. , 2012 MBCA 32 , Edison Rental Agency v. Klippenstein , 2011 MBCA 3 , and the cases referred therein). [ 8 ] In my view, the first four grounds of appeal all relate to matters which are truly disagreements with the Commission’s view of the evidence and do not raise questions of law or of jurisdiction. It is clear, from a reading of the Commission’s decision, that it did consider the documentary evidence which Mr.

Miller claims support his position that the tenants lack credibility. However, it was up to the Commission to make a determination which evidence it preferred. It accepted the tenants’ version of events insofar as it related to whether they had a concern for their safety. [ 9 ] As noted by counsel for the Commission in his brief, there is a distinction to be made between ignoring evidence and rejecting it. See Purves v. Chisel , 2011 MBCA 57 , 268 Man.R. (2d) 148. In this case, the Commission considered the evidence, but chose not to use it, which was within its purview.

Of note is that the evidence was on a matter unrelated to the issue before the tribunal. [ 10 ] There is no legal principle that the Commission must have independent, third-party evidence before it can make a finding that s. 89 was applicable. [ 11 ] The fifth ground of appeal argues that there is a discrepancy between the alleged date that the order was made and the date it was issued.

In my view, nothing turns on it and it certainly does not raise an issue of law or jurisdiction. [ 12 ] As to grounds of appeal six and seven which relate to the review of the decision, the landlord argues that, under s. 171.01 of the Act , the Chief Commissioner may correct or amend a decision or order of the Commission.

He argues that he was, therefore, incorrect when he stated in his letter that there was no jurisdiction to review the Commission’s decision. [ 13 ] Commission counsel properly pointed out that the remainder of s. 171.01 indicates that the Commissioner’s jurisdiction is subject to the provisions of s. 160.1(1) of the Act . That

section restricts the correction or amendment to a “typographical, grammatical or arithmetic error or a similar error,” or “a matter in dispute that was presented for determination but omitted from the decision,” or “to correct an injustice caused by an oversight.” [ 14 ] The Chief Commissioner was correct in determining that under s. 171.01 , there is not a broad power of review or reconsideration as is available to other tribunals under different legislation.

There is, therefore, no arguable error of substance in these two grounds of appeal. [ 15 ] I am of the view that the landlord has not raised a ground of appeal which is based on an error of law, nor one that would have a reasonable chance of success. Therefore, I dismiss the application for leave to appeal without costs. J.A.