Elite Property Management Inc. Date:, 2014 MBCA 66

Citation: Elite Property Management Inc. Date: 20140619 v. Moar et al., 2014 MBCA 66 Docket: AI 14-30-08170 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) D. Moar and ) G. Starr ELITE PROPERTY MANAGEMENT INC. ) on their own behalf ) (Landlord) Respondent ) J. Van Wyk ) on behalf of Elite Property ) Management Inc. - and - ) ) T. D.

Gisser ) for The Residential DARRYL MOAR and GLENN STARR ) Tenancies Commission ) (Tenants) Applicants ) Chambers motion heard: ) June 12, 2014 ) ) Decision pronounced: ) June 19, 2014 HAMILTON J.A. [ 1 ] This is an application for leave to appeal under The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ). See s. 175(2). [ 2 ] The applicants (the tenants) leased a house in Winnipeg managed by the respondent (the landlord). They seek leave to appeal the order of possession dated April 25, 2014 (the Commission’s April 25 order) issued by The Residential Tenancies Commission (the Commission).

The Commission found that the tenants failed to pay rent when due and the “rent that [was] paid [was] habitually late.” Background [ 3 ] The tenants signed a tenancy agreement with the landlord for a one-year term expiring December 31, 2013. The stated monthly rental rate was $1,500 per month, with a discount of $400, resulting in a monthly payable rent of $1,100. [ 4 ] Before the end of the term of the tenancy, the landlord forwarded a renewal of the tenancy agreement to the tenants. It contained an increase in rent. The tenants did not sign it.

As a result, in December 2013, the landlord gave notice to the tenants that the tenancy was terminating on December 31, 2013. The tenants did not move out and continued paying rent at the rate set out in the tenancy agreement that had expired.

The landlord accepted rent from them for January and February 2014. [ 5 ] The landlord applied to The Residential Tenancies Branch (the Branch) for an order of possession, which was denied by order dated February 21, 2014 (the Branch’s February 21 order) for the following reason: …. ... [B]y accepting the rent for January and February 2014 the landlord did not put the tenants on notice that he was still relying on the Form 10 Notice of Termination dated December 23, 2013. The landlord waived the right to terminate and has implied that the tenancy would continue.

As such ... the termination notice is no longer valid …. [ 6 ] The landlord did not appeal the Branch’s February 21 order.

[ 7 ] On February 28, 2014, the landlord served the tenants with a notice of termination for breach of their obligation to pay rent and for being habitually late in paying the rent because they refused to pay the increase in rent of $25 per month. When they did not vacate the house, the landlord applied to the Branch for an order of possession. [ 8 ] By order dated April 2, 2014, the Branch granted the landlord an order of possession. The tenants appealed to the Commission, which affirmed the decision of the Branch and issued the Commission’s April 25 order.

Analysis and Decision [ 9 ] As required by s. 175(2) of the Act , an applicant seeking leave to appeal from an order of the Commission must demonstrate that an asserted ground of appeal involves a question of law or jurisdiction. The test to be applied for leave is stringent and has been explained in many cases of this court. A recent example is found in Thompson 28 Company Ltd. v. McLellan , 2014 MBCA 10 , in which Cameron J.A. wrote (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 . [ 10 ] The tenants argue that the Commission made three errors of law or jurisdiction: 1. The Commission ignored the Branch’s February 21 order which, they say, conflicts with the Commission’s April 25 order. 2. The Commission erred when it did not find that the landlord had not complied with the Act . They argue that the rental increase does not comply with the Act and regulations, and that the renewal tenancy agreement was not properly served by the landlord. The tenants allege that the increased rent exceeds what is permitted by $3 per month. 3.

The Commission failed to address the tenants’ allegation that the landlord’s numerous notices of termination are an abuse of process. [ 11 ] The Commission’s reasons demonstrate that it reviewed and addressed the evidence and the arguments of the parties before reaching its decision that the landlord was entitled to an order of possession.

More specifically, the Commission made findings of fact with respect to the landlord’s obligations under the Act related to the renewal of the tenancy agreement and the increase in rent, as well as the landlord’s allegations of non-payment of rent and the tenants’ habitual lateness in paying rent.

In setting out the history of the relationship between the landlord and the tenants, the Commission acknowledged the Branch’s February 21 order. [ 12 ] The Commission found that the rent increase was valid as “[t]he notice was given in the proper form and with enough time.” The Commission also found that because the “tenants remained in the unit and the landlord accepted rent ... there is an implied month-to-month tenancy [which] includes the provisions of the prescribed form.” The Commission wrote that, “being month-to-month does not suggest there are no rules governing this tenancy nor that the rent cannot be legally increased.” [ 13 ] The Commission noted that the tenants “refus[ed] to pay the rent increase of $25.00 each month and did not pay it for January or February 2014.” It also noted that each time that the landlord accepted the reduced payment, the landlord gave notice indicating that it was not waiving its rights to treat the tenancy agreement as terminated.

See s. 95.1(3) of the Act . [ 14 ] With respect to the tenants’ assertion that the landlord abused the process under the Act , I point out that the Branch and the Commission have a broad mandate under the Act and the resulting expertise to regulate the relationships between landlords and tenants to ensure that both comply with the requirements of the Act . The Commission’s reasons demonstrate that it was alive to the allegation of abuse of process. The landlord and the tenants have a difficult relationship that has resulted in numerous notices to the tenants by the landlord.

All of this was addressed by the Commission in the context of its review of the landlord’s conduct for compliance with the provisions of the Act . I see no arguable question of law arising from the tenants’ asserted ground of appeal alleging abuse of process.

[ 15 ] To summarize, in the context of the applicable provisions of the Act , the Commission made the following findings: the tenants were appropriately served with the renewal of the tenancy agreement and the notice of increased rent; the increased rent complied with the Act ; the tenants did not pay the full rent that was due; and the tenants were habitually late in paying their rent.

These findings are of a factual nature and do not raise questions of law or jurisdiction. [ 16 ] In light of the foregoing, the tenants have not demonstrated that there exists a question of law or jurisdiction as required by s. 175(2) of the Act . Accordingly, I dismiss the tenants’ application for leave to appeal, with costs in favour of the landlord. J.A.