2014 MBCA 10, 2014 MBCA 10

Citation: Thompson 28 Company Ltd. v. McLellan, Date: 20140123 2014 MBCA 10 Docket: AI 13-30-08086 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) L. Carey ) on her own behalf THOMPSON 28 COMPANY LTD. ) ) R. McLellan ) on his own behalf (Landlord) Applicant ) ) T. D.

Gisser - and - ) for The Residential Tenancies ) Commission RYAN LEONARD MCLELLAN ) ) Chambers motion heard: ) January 2, 2014 (Tenant) Respondent ) ) Decision pronounced: ) January 23, 2014 CAMERON J.A. [ 1 ] Thompson 28 Company Ltd. (the landlord), represented by Lindsay Carey, its office manager, applies for leave to appeal an order of The Residential Tenancies Commission (the RTC) that it pay McLellan (the tenant) $1,248.26 for loss of personal property. [ 2 ] The issue arises as a result of two claims that the tenant made to The Residential Tenancies Branch (the RTB) for loss of personal property. [ 3 ] Briefly, on June 15, 2012, the tenant was forced to vacate the apartment he rented from the landlord as a result of a Manitoba health hazard order which had been issued due to flooding in the apartment.

In July 2012, during a visit to the apartment with Ms Carey, the tenant noticed that his Xbox and television were missing. Maintaining that the items had been stolen, he made a claim to the RTB for loss of personal property. On August 31, 2012, the RTB officer (the officer) denied his claim, stating that the tenant could not prove that the items were present at the time he left the apartment.

In reaching his decision, the officer concluded that “the tenant’s property left in the [apartment] after June 15, 2012 was abandoned.” It should be noted that this conclusion is in contradiction to an earlier decision made July 10, 2012, by the same officer in response to the tenant’s claim for compensation for uncompleted repairs.

In his reasons for decision respecting that dispute, the officer stated that the parties agreed that the tenant was “being allowed to store his stuff in the [apartment] until he can return or find new accommodation.” In his decision dated August 31, 2012, the officer does not mention his decision made July 10, 2012, nor does he address the contradiction. [ 4 ] In any event, the tenant appealed the officer’s denial of his claim for personal loss to the RTC. However, he did not attend his appeal hearing and his appeal was dismissed. [ 5 ] Next, in March 2013, the tenant again requested entry to the apartment.

This time, the landlord advised him that all of his personal property had been removed and taken to the dump. This property included a table and chairs, a cocktail table and a sofa. The tenant then filed a second claim with the RTB for personal loss.

The second claim included the property that was taken to the dump by the landlord, as well as a renewed claim for the loss of his television and Xbox. [ 6 ] On August 30, 2013, a different officer of the RTB denied the tenant’s second claim for property loss on the basis that it was res judicata insofar as the previous officer found on August 31, 2012, that the tenant had abandoned all of his personal property that he left in the apartment after June 15, 2012. [ 7 ] The tenant appealed the above decision to the RTC.

At the hearing of the matter, the RTC heard evidence from the tenant, the landlord and each of their respective witnesses. Ultimately, it held that the tenant’s claim was res judicata with respect to the television and Xbox, but not with respect to the balance of his personal property which the landlord had arranged to be taken to the dump. In reaching its conclusion, the RTC preferred the tenant’s evidence that he intended to move back into the apartment and, therefore, had an agreement with the landlord to store the items in the apartment after the health hazard order had been issued.

The RTC also accepted that the landlord removed the tenant’s property without his consent. Therefore, on November 14, 2013, the RTC awarded

the tenant $1,248.26 for loss of personal property with respect to the second claim. It is from that decision that the landlord appeals. [ 8 ] Although the landlord identified the grounds of appeal as (

i) mistake of law; (ii) mistake of jurisdiction; and (iii) mistake of evidence in its application for leave to appeal, the other material filed by the landlord and the submissions made on its behalf revolve around its contention that the RTC’s order was contrary to the finding made by the officer on August 31, 2012, that the tenant had abandoned the property he left in the apartment.

The landlord argues that the hearing before the RTC was unfair in that the RTC ignored its evidence to the effect that there was no agreement to store the tenant’s property at the apartment after he vacated it. [ 9 ] Application for leave to appeal to this court is governed by s. 175(2) of The Residential Tenancies Act , C.C.S.M., c. R119, which states that an appeal may be taken only on a question of jurisdiction or law and only with leave of this court.

Jurisprudence has established that the issue that is attempted to be raised on appeal must warrant the attention of this court in that it will be applicable to other similar disputes. Finally, the court must consider whether there is an arguable chance of success. See Miller v. Baker et al. , 2013 MBCA 77 ; Lafreniere et al. v. Senyk et al. , 2013 MBCA 18 ; J.C. Property Management v. Benard , 2011 MBCA 1 ; and Edison Rental Agency v.

Klippenstein , 2011 MBCA 3 . [ 10 ] At the hearing of this appeal, the landlord agreed that it did not dispute the RTC’s finding that res judicata did not apply to the property that the landlord arranged to be taken to the dump. In my view, the concession was appropriate. Respecting that issue, the RTC correctly stated that the property involved in the second claim and the nature of that cause of action was different than the claim made for the Xbox and television.

Indeed, at the time the tenant made the claim for the Xbox and television, the balance of his other property was still in the apartment and, therefore, he could not have claimed anything for its loss. [ 11 ] As earlier indicated, the landlord argues that the hearing was unfair in that the RTC ignored its evidence that it did not agree to store the tenant’s property in the apartment, and the officer’s finding that it had been abandoned. [ 12 ] The reasons for decision provided by the RTC reflect that it did consider the evidence provided by the landlord, however, rejected it on the basis that it was not credible.

The RTC provided considered reasons for finding the evidence to be incredible when it held that the landlord agreed to store the tenant’s property in the apartment. The fact that the landlord disagrees with those reasons does not equate to a failure to consider the evidence. [ 13 ] There is no question that the RTC had the jurisdiction to hear the proceedings, make credibility determinations and decide the facts based on those determinations.

In this case, a definitive determination of the facts was desirable in light of the conflicting decisions regarding the storage of the tenant’s property that were made by the officer. [ 14 ] The finding that there was an agreement that the landlord would store the tenant’s property in the apartment was a finding of fact based on a credibility assessment. Such an issue does not raise a question of law. [ 15 ] Thus, I find that the landlord has not raised a question of jurisdiction or law.

Further, the circumstances of this case do not merit the full attention of the court and any appeal would have little chance of success. [ 16 ] Therefore, for all of the above reasons, I would deny leave to appeal. J.A.