McIntosh v. McDonald, 2014 MBCA 78

Citation: McIntosh v. McDonald, 2014 MBCA 78 Date: 20140826 Docket: AI 14-30-08158 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) B. J. Froese KIRK MCINTOSH ) for the Applicant ) ) K. McIntosh (Landlord) Respondent ) on his own behalf ) ) T. D. Gisser - and - ) for The Residential ) Tenancies Commission ) RAYMOND EDWARD MCDONALD ) Chambers motion heard: ) July 17, 2014 ) (Tenant) Applicant ) Decision pronounced: ) August 26, 2014 CAMERON J.A. Introduction [ 1 ] This is an application for leave to appeal by Mr.

McDonald (the tenant) from an order of the Residential Tenancies Commission (the Commission) denying his claim against Mr. McIntosh (the landlord) for rent, loss of personal property and compensation for moving costs. Although the tenant applies for leave to appeal the entire order, the crux of his application relates to the denial of his claim for loss of personal property. He asserts that the Commission violated the rules of natural justice and fairness when it refused to admit relevant evidence to his claim on the basis that it had not been filed in accordance with its guidelines.

For the reasons that follow, I would deny leave to appeal. Background and Issue [ 2 ] The landlord and tenant had a month-to-month residential tenancy agreement. In early September 2013, the tenant claimed to have found bed bugs in his apartment. He advised the landlord of his discovery and vacated the apartment. When he returned to remove his belongings approximately three weeks later, they were gone.

As a result, the tenant filed a claim with the Residential Tenancies Branch (the Branch) for loss of personal property. [ 3 ] Of note, at the resultant hearing before the Branch, and later the Commission, the tenant was represented by an administrative law advocate (the advocate). [ 4 ] At the hearing before the Branch both sides presented evidence. Of import to this matter, the landlord called the on- site caretaker, Mr. Pinter, who stated that, at the landlord’s request, he had put the tenant’s belongings in boxes and bags and left them inside of the apartment so that they would be safe.

After hearing all of the evidence, the Branch denied the tenant’s claim on the basis that he did not see, nor could he provide any evidence that the landlord was responsible for moving his belongings. [ 5 ] The tenant appealed to the Commission. The hearing before the Commission was divided between two dates. On the first date, the tenant testified and produced three witnesses, who also testified. At that time, Mr. Pinter was present to testify on behalf of the landlord.

However, due to time constraints, the matter was adjourned to a later date for continuation. [ 6 ] Four days prior to the date set for continuation, Mr. Pinter attended to the office of the advocate. At that time he executed a statutory declaration stating that the landlord had told him what to say at the hearing. Contrary to his testimony at the hearing, Mr. Pinter declared that the landlord told him to move the tenant’s belongings near the garbage area of the residence.

He said that he moved the items as requested and then he helped the landlord load the tenant’s belongings into the back of a pick-up truck so that the landlord could take them to the dump. He also swore that he and the landlord had a falling out and that was why he was coming

forward with the information. [ 7 ] The next day, the advocate delivered to the Commission a copy of the statutory declaration along with a request for direction, namely, for permission to call Mr. Pinter as a further witness on the continuation date. She was advised by a representative of the Commission that she would be allowed to call him as a witness. [ 8 ] On the date of the continuation, Mr. Pinter told the advocate that he could not attend the hearing because he “had to do some snow clearing.” Therefore, as a preliminary matter, the advocate requested that his statutory declaration be entered as evidence.

The landlord objected and the Commission refused to allow the document into evidence. Ultimately, the Commission denied the tenant’s claim for property loss on the basis that he could not prove that it was the landlord who had removed the property from the apartment.

Indeed, the Commission noted that the tenant himself testified that anyone could have opened his apartment door without a key. [ 9 ] In its reasons denying the claim, the Commission addressed the request to admit the statutory declaration noting that, “The practice before the Commission is that all material to be relied on must be filed at least five working days before the hearing.” [ 10 ] The tenant claims that the decision not to admit the evidence constituted a violation of the rules of natural justice and fairness and, on this basis, applies for leave to appeal.

In support of his application he has filed an affidavit affirmed by the advocate in which she describes how the ruling unfolded. In that affidavit she states that, in response to her request to admit the statutory declaration, the deputy chief commissioner said that it would be given “little weight” and that it would not be admitted into evidence because it had not been filed at least five days prior to the hearing. Analysis and Decision [ 11 ] 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 (the Act ), 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. Lastly, 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 . [ 12 ] The tenant argues, and I agree, that the provisions of the Act which are relevant to this application include: 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. 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.

Right of parties to examine filed material 169(3) The commission shall give the parties to an appeal a reasonable opportunity to examine all material filed with the commission that is relevant to the appeal. [ 13 ] In addition, the Commission has established guidelines.

Important to this application is guideline 13, which provides: If the parties wish to submit written material, they shall file five (5) sets of all documents and/or two (2) sets of photographs, DVDs, CDs or diskettes at least five (5) working days before the hearing. [ 14 ] The tenant argues that it was contrary to s. 165(3) and the rules of natural justice for the Commission to apply guideline 13 in refusing to admit the statutory declaration because, in this case, the evidence did not exist within the five-day time limit. He argues that, when the evidence was discovered, the advocate acted quickly.

Next, he argues that natural justice was breached because the evidence excluded went to the very heart of the issue in question. Therefore, he claims he has raised an issue of jurisdiction. Further, the tenant notes that the landlord could have requested an adjournment, but he did not. [ 15 ] The landlord argues that the evidence was unreliable and was based on a falling out he had with Mr. Pinter. Further, he argues that he argued on a preliminary basis that the evidence should not be admitted and he was successful in that regard. Therefore, he disputes that he should have requested an adjournment.

Finally, he argues that the ultimate decision made by the Commission to deny the claim for personal property loss was correct insofar as it considered the inconsistencies in the evidence provided by the tenant and his

witnesses. [16] The Commission argues that it had a duty of fairness to both sides, not just to the tenant. Next, it argues that thedecision must be viewed in the context of the proceedings as a whole and not in isolation. Further, even though the reason stated in theCommission’s decision was that the five-day deadline had not been met, the comments by the deputy commissioner to the advocate, tothe effect that the statement would not have been given any weight if it were to be admitted, shows that the Commission considered thereliability of the document.

Having said that, counsel for the Commission also acknowledged that the stated reason, being the failure tomeet the deadline, spoke for itself. [17] In support of his position that the refusal to admit the sworn declaration was contrary to s. 165(3) of the Act, the tenantrelies on the case of Wuziuk v. Director of Social Services (1980), (MB CA), 3 Man.R. (2d) 72. In that case, the courtheld that it was an error of law for the Social Services Advisory Committee to refuse to admit in evidence the affidavit of Mrs. Wuziukon the ground that she was not present to be cross-examined.

However, as was pointed out by the Commission, that case involved TheSocial Allowances Act, C.C.S.M., c. S160 (as it then was), which required the appeal board to “hear any evidence adduced by or onbehalf of … the person appealing” (at s. 9(5)).

That wording is clearly different than s. 165(3) of the Act which provides that theCommission “shall give full opportunity to the parties to present evidence and make submissions.” Further, the evidence that was atissue in that case was the affidavit of a party to the proceeding and, therefore, Wuziuk is factually distinguishable. [18] In this case, aside from the refusal to admit the statutory declaration, the Commission heard all of the evidencepresented by the tenant. While it may not have been due to the fault of the tenant, the timing of the disclosure by Mr. Pinter did not meetthe five-day guideline.

The guideline exists to protect the interests of all parties, including the landlord. The determination ofinadmissibility was made at the commencement of the continuation of the hearing. Having had a ruling made against him, the tenantcould have requested an adjournment to either comply with the guideline or to attempt to produce the witness. He did neither. Rather,he chose to proceed on all of the evidence he had presented. [19] Based on the above, I cannot conclude that a question of law is raised that the Commission erred in the application of itsown legislation or rules. [20] In Dubbert v. White, [1998] M.J.

No. 15 (QL), Monnin J.A. considered an application by a tenant for leave to appeal anorder of the Branch on the basis that it breached procedural guidelines set out in the Act. In denying leave to appeal he stated (at para.6): …. Unless there can be seen to be a clear breach of the rules of natural justice in the manner in which the Commission conducted theappeal hearing, it is not for this Court to interfere in what is essentially its internal procedure. …. [21] Having not found a breach or misapplication of the Act or guidelines that would raise a question of law, I turn now tothe issue of natural justice.

The rule of natural justice engaged in this application concerns “the right of a person affected by a decision tobe heard.” See Université du Québec à Trois-Rivières v. Larocque, (SCC), [1993] 1 S.C.R. 471 at p. 488. [22] In Université du Québec, Lamer C.J.C., writing for the majority of the court, considered the refusal of an arbitrator toadmit evidence. In that case, he concluded that the rejection of relevant evidence, while it may constitute an error in law, does notautomatically constitute a breach of natural justice (see p. 491).

It is only where the rejection of relevant evidence has “such an impacton the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice” (at p. 491). [23] In my view, in light of the nature of the evidence being proffered, the fact that the tenant did not request an adjournmentand the history of the proceedings, there is no question of breach of natural justice raised. [24] The above conclusion is consistent with the decision of Beard J.A. in Peters v.

Michaud et al., 2011 MBCA 69, 268Man.R. (2d) 308, wherein she held that a question of law or jurisdiction was not met where the Commission refused to admit a largenumber of documents on the date of the hearing in circumstances where there was no explanation for the lateness. While I acknowledgethat, in this case, there was an explanation for the delay, that fact must be balanced by the fact that the document sought to be admittedwas contrary to the previous testimony of Mr.

Pinter, of questionable reliability, and implicated the landlord in wrongdoing. [25] Further, while it is true that questions concerning the admission of evidence can raise a question of law, in my view,even if such a question is raised, the facts of this case are not such that it merits the attention of the full court. Essentially, the tenant isasking this court to order that the Commission receive as evidence a statutory declaration that is contrary to prior testimony on crucialissues, of questionable reliability, without the benefit of cross-examination.

This is not a matter wherein the court would be providingfuture direction to the Commission. [26] Finally, based on the above, in my view, the tenant would have little chance of success. [27] In the result, I would deny the application for leave to appeal. In accordance with his request, costs are ordered to thelandlord. J.A.