Chong v. Wan et al., 2014 MBCA 35

Citation: Chong v. Wan et al., 2014 MBCA 35 Date: 20140416 IN THE COURT OF APPEAL OF MANITOBA Docket: AI 13-30-08090 BETWEEN : RONALD KIN SANG CHONG ) ) (Landlord) Applicant ) ) - and - ) J. G. E. Young ) for the Applicant CHING MAN WAN ) ) (Tenant) Respondent ) M. Adachi ) for the Respondents - and - ) ) Docket: AI 13-30-08091 ) T. D.

Gisser BETWEEN : ) for The Residential ) Tenancies Commission RONALD KIN SANG CHONG ) ) (Landlord) Applicant ) ) Chambers motions heard: - and - ) March 28, 2014 ) YAN TING LAI ) ) Decision pronounced: (Tenant) Respondent ) April 16, 2014 ) - and - ) ) Docket: AI 13-30-08092 ) BETWEEN : ) ) RONALD KIN SANG CHONG ) ) (Landlord) Applicant ) ) - and - ) ) WAI HONG TSANG ) ) (Tenant) Respondent ) HAMILTON J.A. [ 1 ] The applicant (the landlord) seeks leave to appeal three orders of the Residential Tenancies Commission (the Commission) which require him to pay compensation to each of Ching Man Wan, Yan Ting Lai and Wai Hong Tsang (collectively the tenants). [ 2 ] The tenants were university students from Hong Kong who had prepaid the landlord to live in his home during the school year commencing September 1, 2011, and ending June 30, 2102.

The Commission found that the landlord received $25,000 from

each of Mr. Tsang and Ms Wan, and $27,500 from Ms Lai for a basement bedroom, meals, tutoring and transportation services. [ 3 ] The tenants found the living conditions and accommodations intolerable for a number of reasons. Without notice to the landlord, they moved out of the landlord’s house in early 2012. Each of them filed a claim with the Residential Tenancies Branch (the Branch) against the landlord under The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ) seeking compensation for rent, interest and costs. [ 4 ] The Branch issued an order of compensation for each tenant.

The landlord appealed these orders to the Commission. [ 5 ] As stated in the Commission’s reasons, it “arranged for the three matters to be heard together.” The hearing took four days between September 11, 2012 and December 6, 2012. The tenants were represented by counsel at the hearing. One of the tenants, Mr. Tsang, was present throughout the hearing. Ms Wan and Ms Lai were living in Hong Kong at that time. The Commission permitted them to give their evidence by teleconference during one of the four hearing days. An interpreter was present during the hearing.

The landlord did not testify. [ 6 ] The Commission canvassed many issues in its detailed 40-page decision, including the preliminary challenge by the landlord with respect to the Commission’s jurisdiction given the nature of the living accommodations at issue. [ 7 ] After a comprehensive analysis, the Commission found that the living accommodations were not “shared accommodation,” as argued by the landlord, and were not rooms in a boarding house.

It concluded that it did have jurisdiction after finding that “the accommodations provided to each tenant were living accommodations intended for use as rented residential premises. … [And] that there were tenancy agreements between the landlord and each tenant for occupancy of a rental unit and provision of tenant services.” [ 8 ] The Commission found that the prepayment arrangements were void as against public policy pursuant to s. 6 of the Act . In the alternative, the Commission also found that the landlord committed serious breaches of his obligations under the Act .

The Commission found that the tenants had cause to terminate their tenancies, without notice, because the accommodations were “uninhabitable,” pursuant to s. 89(4) of the Act . It concluded that “the severity of the landlord’s contraventions in this case warrants such an extraordinary remedy.” [ 9 ] The tenants only sought compensation for the rent related to the period of the tenancies remaining after termination. The Commission concluded that the landlord was not entitled to rent beyond February 6, 2012.

It made the following three orders pursuant to s. 55(1) of the Act , which varied slightly the amounts ordered by the Branch: Ms Wan – compensation of $11,982.83 Mr. Tsang – compensation of $11,982.83 Ms Lai – compensation of $14,482.83 [ 10 ] Each order also requires the landlord to pay $65 in costs, and pre and post-judgment interest. The Landlord’s Application for Leave [ 11 ] The landlord seeks leave to appeal each of the Commission’s orders. His overriding argument is that the Commission breached its duty of procedural fairness because its conduct of the hearing was so fundamentally flawed.

Briefly stated, he takes issue with the fact that the tenants’ brief for the appeal hearing included the orders and reasons for decision of the Branch and referenced the Branch’s findings of fact. He asserts that this precluded a hearing de novo and raised a reasonable apprehension of bias.

He also takes issue with the decision of the Commission to hear the three appeals together and how, at one point during the appeal, the chairperson failed to consult her panel members before dismissing his motion to stay the hearing. [ 12 ] More specifically, he seeks leave on the following questions: Did the … Commission err in law by failing to adhere to its own procedures in convening a hearing de novo …? [Did] the … Commission [err] in law by failing to abide by the principles of procedural fairness by reviewing and adopting the [Branch’s] findings of fact and conclusions? [Did] the … Commission [err] in law by failing to consider a request for a stay of its interlocutory decision [denying the landlord an adjournment because Ms Wan and Ms Lai would not be attending the entire hearing]?

[Did] the … Commission [err] in law by misapprehending the evidence …? [ 13 ] The positions of the tenants and the Commission are similar. They both assert, among other arguments, that the landlord has failed to establish an arguable question of law given that the conduct complained of is authorized under the Act and the Commission has discretion with respect to how to conduct its proceedings. Criteria for Leave to Appeal [ 14 ] The criteria for leave to appeal a decision of the Commission are well known. They were recently summarized by Cameron J.A. in Thompson 28 Company Ltd. v.

McLellan , 2014 MBCA 10 (at para. 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 . [ 15 ] A question of procedural fairness raises a question of law. See Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 22 , [2011] 3 S.C.R. 708 , and Jiang v. Manitoba (Minister of Labour and Immigration) et al. , 2014 MBCA 27 at para. 17 . Did the Commission Err in Law by Failing to Adhere to its Own Procedures in Convening a Hearing de novo ?

Did the Commission Err in Law by Failing to Abide by the Principles of Procedural Fairness by Reviewing and Adopting the Branch’s Findings of Fact and Conclusions? [ 16 ] Because these two proposed questions are intertwined, I address them together. [ 17 ] There is no issue that an appeal to the Commission is a hearing de novo . As explained by Huband J.A. in Shams v.

Wiebe , 2000 MBCA 4 , 145 Man.R. (2d) 163 (at para. 9 ): The Act does not specifically state that a hearing before the Commission is to be a de novo hearing. ... [H]owever ... all the procedural provisions in the Act point that direction …. …. [ 18 ] The landlord submits that the Commission did not conduct a hearing de novo as it did not comply with its own notices and guidelines.

He refers to certain wording in the notice of hearing issued by the Commission to the landlord and the tenants and the attached guidelines: NOTICE OF HEARING The appeal hearing before the Commission is an entirely new hearing and you must tender the evidence which you rely upon and bring your witnesses for this hearing. …. . . . . . …. The determination of the appeal will be based upon the evidence presented, rather than the record of the previous hearing. GUIDELINES BEFORE THE RESIDENTIAL TENANCIES COMMISSION PARTS 1-8

9. An appeal will be by way of an entirely new hearing (Hearing De Novo). The documentation filed with the Residential Tenancies Branch will not be transferred to the Commission for this hearing. If you choose to use any of the same evidence previously filed with the Branch, you must adhere to the guidelines hereinafter set out in paragraph 13. [ 19 ] The landlord says that the Commission failed to follow its own procedure because it received and reviewed the Branch’s orders and reasons for decision and adopted the Branch’s findings of fact and conclusions.

By doing so, he says, it did not provide the parties with a fresh hearing. As well, he says that the receipt of the Branch’s orders and reasons tainted the process and raises a reasonable apprehension of bias. [ 20 ] The landlord’s arguments are not persuasive. [ 21 ] The Commission was entitled to receive the Branch’s orders being appealed and the reasons related to them. I would have been surprised if the Commission did not have this material just for the purpose of establishing jurisdiction, as argued by Mr. Gisser.

In any event, s. 162 of the Act permits such receipt and by its very nature, s. 170(1) of the Act contemplates it. Information to be forwarded 162 The director shall without delay forward to the commission any records and information that the commission requests in respect of an appeal filed under

section 161. Powers of commission on appeal 170(1) After holding a hearing, the commission may (

a) confirm, vary or rescind the decision or order of the director; or (

b) make any decision or order that the director could have made. [ 22 ] In keeping with well established administrative law principles subs. 165(3) and (4) and subs. 169(1) and (2) of the Act provide discretion to the Commission with respect to how it conducts its hearings: Procedure 165(3) The commission shall determine its own practice and procedure but shall give full opportunity to the parties to present evidence and make submissions. Hearings conducted orally or in writing 165(4) The commission may conduct a hearing orally, including by telephone, or in writing or partly orally and partly in writing.

Evidence 169(1) Evidence may be given before the commission in any manner that the commission considers appropriate, and the commission is not bound by the rules of law respecting evidence applicable to judicial proceedings.

Commission may consider relevant information 169(2) In addition to evidence given in the course of a hearing, the commission may consider relevant information in the possession of the director or that is otherwise obtained by the commission, if the commission informs the parties of the nature of the information and gives them an opportunity to explain or refute it. [ 23 ] This discretion was explained by Monnin J.A. in Dubbert v. White , [1998] M.J. No. 15 (QL) (C.A.) (at para. 6 ):

The Commission hearings are not conducted in the same manner and with the same rules that would apply in a court. They need not be as is specified in the excerpts from the Act that I have set out earlier in these reasons. Unless there can be seen to be a clear breach of the rules of natural justice in the manner in which the Commission conducted the appeal hearing, it is not for this Court to interfere in what is essentially its internal procedure. …. See also Peters v. Michaud et al. , 2011 MBCA 69 , 268 Man.R. (2d) 308, and Perez-Martin v. Douglas , [1998] M.J.

No. 333 (QL) (C.A.) . [ 24 ] Therefore, the Commission has the power to receive material and conduct an appeal hearing as it determines is appropriate in the circumstances provided that it “shall give full opportunity to the parties to present evidence and make submissions” (s. 165(3)). The record demonstrates that the Commission provided the tenants and the landlord with full opportunity to be heard.

The landlord knew the information and evidence before the Commission and had full opportunity to refute it and address it. [ 25 ] Moreover, the Commission’s extensive reasons demonstrate that it carefully considered the evidence introduced at the four-day hearing, as well as the parties’ submissions, it made its own findings and conclusions and approached its duties fairly and with an open mind.

Did the Commission Err in Law by Failing to Consider a Request for a Stay of its Interlocutory Decision? [ 26 ] The Commission denied the landlord his request to adjourn the hearing for the purpose of seeking judicial review of the Commission’s refusal of the landlord’s motion to dismiss the claims by Ms Wan and Ms Lai for failing to attend the hearing. The landlord then requested a stay to apply to the court. The chairperson advised that a stay would not be granted.

When counsel for the landlord objected that the chairperson had not consulted with the other panel members and, therefore, exceeded her jurisdiction, the panel retired to consider the request for a stay, which was then denied. [ 27 ] There is no arguable question here. [ 28 ] Ms Wan and Ms Lai were present throughout the hearing through counsel. The granting of a stay to seek judicial review would have been contrary to the well-known principle that administrative hearings are not to be bifurcated except in exceptional circumstances. See Hydro Electric Board (Man.) v.

Consumers’ Association of Canada (Man.) Inc. et al. , 2012 MBCA 1 at para. 72 , 275 Man.R. (2d) 60. In any event, the panel’s reconsideration remedied any oversight of the chairperson in responding to the landlord’s motion. Did the Commission Err in Law by Misapprehending the Evidence? [ 29 ] In addition to his other arguments already referred to, he relies on the distinction in the Queen’s Bench Rules between matters that are ordered to be heard together and those that are consolidated. He asserts that, in this case, the only matter that was before the Commission was Mr.

Tsang’s appeal and that Ms Wan and Ms Lai were only witnesses for his appeal. Therefore, he asserts, that the claims by Ms Wan and Ms Lai should have been dismissed because they presented no evidence. [ 30 ] For the reasons already articulated for denying leave to appeal on the other proposed questions, there is simply no merit to this argument. Conclusion [ 31 ] The landlord has not demonstrated any arguable question of law. I therefore dismiss his applications for leave to appeal with respect to Mr.

Tsang, Ms Wan and Ms Lai. [ 32 ] As for costs, counsel for the tenants seeks three sets of costs in accordance with the Court of Appeal tariff. Given that the landlord’s applications for leave were heard together and that the tenants filed one motion brief with the approval of the court, I agree with the landlord that one set of costs is appropriate. J.A.