Visen v. Dion et al., 2014 MBCA 88

Citation: Visen v. Dion et al., 2014 MBCA 88 Date: 20140924 Docket: AI 14-30-08143 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: NEERAJ VISEN ) R. A. McFadyen ) for the Applicants (Landlord) Respondent ) ) D. A. Simpson- and - ) for the Respondent ) ALAIN DION and DANIELLE REID ) T. D. Gisser ) for the Residential (Tenants) Applicants ) Tenancies Commission ) ) Chambers motion heard: ) September 4, 2014 ) ) Decision pronounced: ) September 24, 2014 MICHEL A.

MONNIN J.A. [1] The applicant, Alain Dion (Dion), seeks leave to appeal from a decision of the Residential Tenancies Commission(RTC). [2] Leave to appeal from a decision of the RTC is guided by the provisions of s. 175(2) of The Residential TenanciesAct, C.C.S.M., c. R119 (the Act), which provides that leave may only be granted on a question of jurisdiction or law. In the present case,the applicant alleges an error in law on the part of the RTC. [3] The basis on which this court will grant leave is well established and recognized. Peters v.

Michaud et al., 2011MBCA 69, 268 Man.R. (2d) 308, sets out the test as follows (at para. 4): The standard of review on an application for leave to appeal from a decision of the RTC is well settled, and I can do no better than toquote from the decision of Michel A. Monnin, J.A., in Edison Rental Agency v. Klippenstein, [2011] Man.R. (2d) Uned. 8; 2011MBCA 3 (in Chambers) leave to appeal to S.C.C. dismissed, [2011] S.C.C.A.

No. 69 (at para. 7): The test that an applicant must meet in order to be granted leave to appeal from a decision of the [Residential Tenancies] Commission iswell settled and has been set out in numerous decisions of this court. See 4469667 Manitoba Ltd. v. Thomas, 2009 MBCA 20 (inChambers); Manitoba Housing Authority v. Bertram, 2006 MBCA 49; 205 Man.R. (2d) 61 (in Chambers); Procak v. Hayward,2006 MBCA 84; 205 Man.R. (2d) 150 (in Chambers); and 3391397 Manitoba Ltd. v. Winnipeg City Assessor (1998), (MB CA), 126 Man.R. (2d) 63 (in Chambers).

A recent enunciation of the test is to be found in the reasons of Freedman, J.A., inManitoba Housing Authority v. Horvat, 2010 MBCA 43; 255 Man.R. (2d) 42 (in Chambers), where he wrote (at para. 3): The Act provides the applicant with a very limited opportunity to appeal a decision or order of the Commission to this court. Appealsare limited to questions of jurisdiction or law, and an applicant needs leave to appeal. Three factors are considered by a judge indetermining whether to grant leave. See Pelchat v.

Manitoba Public Insurance Corp. et al. ... [(2006)], 2006 MBCA 90 , 40C.C.L.I. (4th) 46; 2006 MBCA 90 (at para. 2): 1. The question must be truly one only of jurisdiction or of law, and not one which ‘involve[s] the court in an assessment or analysis ofconflicting factual issues’ (Shersty v. Manitoba Public Insurance Corp. (2002), 2002 MBCA 108 , 43 C.C.L.I. (3d) 35; 2002MBCA 108 (Man. C.A. [In Chambers]), at para. 2; Fillion v. Manitoba Public Insurance Corp. (2004), 2004 MBCA 61 , 10

C.C.L.I. (4th) 182; 2004 MBCA 61 (Man. C.A.), and cases cited therein). 2. The case must be one that warrants the attention of the court. ‘The issue must be one of importance; not just for the immediate case,but in determining other similar disputes which are apt to arise in [the] future’ (Wuziuk v. Manitoba (Director of Social Services) (No.2) (1979), (MB CA), 3 Man.R. (2d) 81 (Man. C.A.), at para. 7). 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba PublicInsurance Corp. (2003), 2003 MBCA 95 , 50 C.C.L.I. (3d) 1; 2003 MBCA 95 (Man.

C.A. [In Chambers])). [4] The facts in this case are relatively straightforward and the parties are in agreement as to what they are. Dion hadentered into a tenancy agreement with the respondent (the landlord). The tenancy agreement provided that the co-applicant, DanielleReid (Reid), who is Dion’s spouse, was an occupant of the house, which was the subject of the agreement. A fire occurred on the rentedpremises and the RTC found that Reid was responsible for its occurrence. At the time of the fire, Dion was not on the premises or evenin Winnipeg. The RTC’s finding of responsibility on Reid’s

part is not in issue. [5] The landlord’s insurer, through a subrogated claim, sought compensation from both Dion and Reid for the damagescaused by the fire pursuant to s. 72(1) of the Act. That

section reads: Obligation to take care and repair damage 72(1) A tenant (

a) shall take reasonable care, and ensure that any person he or she permits in the residential complex takes reasonable care, not todamage, wilfully, negligently or by omission, the rental unit or residential complex, including anything relating to a service and facilityor a tenant service provided by the landlord; and (

b) subject to subsection (2), shall repair any damage in a good and workmanlike manner, or pay compensation to the landlord, withina reasonable time after receiving a written notice to do so by the landlord. [6] Before the RTC, Dion acknowledged that he was a tenant under the terms of the tenancy agreement, but he and Reidtook the position that Reid was not a tenant and, therefore, not liable for the landlord’s loss. Dion’s position before the RTC is set out inits reasons for decision as follows: 1. Counsel on behalf of the tenant submits that Mr. Alain Dion is the only named “tenant” on the Tenancy Agreement.

Mr. Alain Dionpaid the rent and therefore he is the only “tenant” and is solely responsible as a tenant under the Tenancy Agreement. 2. Counsel for the tenant submits that Mr. Dion was not personally responsible for the fire. He also submits that the onus of proof inthe circumstances is on the landlord to establish that it was more likely than not that Ms. Danielle Reid caused the fire. He submits thatthe onus of proof has not been met in the circumstances. There is no evidence that Ms.

Reid turned on the stove and therefore thelandlord has not established that the tenant was responsible for the fire damage to the rental unit. [7] The RTC did not accept Dion’s argument and went on to find as follows: As noted by counsel for the landlord, Ms. Reid was listed as a permitted occupant on the Tenancy Agreement. The panel finds that therewas an express agreement that Ms. Reid would occupy the rental unit with Mr. Dion. The panel finds that Ms. Reid falls within thedefinition of “tenant” set out in the Act. Ms. Reid was a person who was entitled to occupy the rental unit under a tenancy agreement.

Accordingly, the panel finds that Ms. Reid is a tenant for the purposes of the Tenancy Agreement and is subject to the rights andobligations of a tenant under that Tenancy Agreement. [8] The definition of tenant to which the RTC referred in its decision is set out in the Act as follows:

“tenant” means a person who occupies or is entitled to occupy a rental unit under a tenancy agreement and includes his or her heirs,assigns and personal representatives, but does not include a government agency that pays rent or a tenant services charge on behalf of aperson in connection with that person’s right to occupy the rental unit; [9] Dion takes the position that the RTC erred in law when it found him to be jointly and severally liable for the damagewhich the RTC clearly found to be as a result of Reid’s negligence. Dion further argues that there is nothing in the tenancy agreementthat renders him liable for

an act that he did not commit nor is there any statutory provision in the Act that imposes such liability on him.

More specifically, he states that there exists no authority that deals with the question of whether the breach by one residential tenant of astatutory duty not to willfully or negligently damage a rental unit automatically imposes joint liability on another tenant of the same unit,notwithstanding the fact that the latter tenant may have played no role in contributing to the damage. [10] Finally, Dion argues that the issue he wishes to raise is a matter of general importance and that he has an arguable caseto present. [11] The landlord takes the position that the issue Dion wishes to raise is not one of pure law, but one of mixed fact and lawand, therefore, leave should be denied.

He argues that the RTC’s finding that a tenant is liable under the provisions of s. 72(1) of the Actis a factual decision. He also argues that the matter is fact-specific and not of general importance beyond this case and, therefore, Dion’srequest for leave should also be rejected on this basis. [12] Both the landlord and the RTC take the position that Dion does not have an arguable case as the issue he wishes toraise has been considered and decided in this province in the case of Apex Realty Properties Ltd. et al. v. Leslie et al. (1988), (MB KB), 54 Man.R. (2d) 194 (Q.B.).

In addition, the landlord relies on Collins v. O’Reilly et al. (1992), (NL SC), 99 Nfld. & P.E.I.R. 6 (S.C. (T.D.)), arguing that the issue has also been decided in that case. [13] In Apex, a fire occurred in an apartment leased to two tenants and occupied by one of the tenants and a guest at thetime of the fire. The cause of the fire was established as careless smoking of a cigarette, but liability could not be established as againstthe guest.

With respect to the tenant that was on the premises at the time of the fire, I stated (at para. 3): Clearly, the defendant Karen Leslie is liable for the damage either because she was careless herself or because her guest and co-defendant, Rice, was careless. This liability stems either from the lease itself or from s. 98(2) of the Landlord and Tenant Act, R.S.M. 1970, c. L-70; C.C.S.M., c.

L-70. [14] As to the liability of the tenant who was not on the premises at the time of the fire, I wrote (at paras. 8-11): Section 98(2) of the Landlord and Tenant Act states: Responsibility of tenant. 98(2) The tenant shall (

a) be responsible for ordinary cleanliness of the rented premises; and (

b) take reasonable care of the rented premises and repair damage to the rented premises caused by his wilful or negligent conduct orsuch conduct by persons who are permitted on the premises by him; and (

c) take all reasonable precaution to avoid causing a nuisance or disturbance to other persons resident in the same building by any personresident in his rented premises or by others who are permitted on the premises by him. Furthermore, a portion of paragraph R. 2 of the lease agreement reads as follows:

--- and will make all repairs required to the walls, ceilings, paint, plastering, plumbing work, pipes and fixtures belonging to said apartments, whenever damage or injury to the same shall have resulted from misuse or neglect; --- The defendant, Winnifred J. Leslie, has argued that she is not vicariously liable with her co-defendant, Karen Leslie, because she was not actually residing on the damaged premises when the fire occurred. The defendant, Winnifred J.

Leslie, further argued that the lease agreement is an agreement between plaintiffs and each co-tenant individually and not severally and she is therefore not liable for the actions of her co-tenant and co-defendant. A careful perusal of the leased agreement does not, in my view, support this line of defence, nor have I been referred to or am I aware of authorities that do so. The lease, although it names both the defendant Winnifred J. Leslie and the defendant Karen Leslie, refers to them in the heading and in the body as “the tenant”.

I fail to see how they can be considered anything but jointly liable. [ 15 ] In Collins , the damage was caused by the tenants’ son. He was found to be a person that the tenants permitted onto the premises. In assessing liability against the tenants, Russell J. wrote (at paras. 16-20): I conclude that under statutory condition 2 the son was a person whom the defendants, as tenants, permitted on the premises.

If I had concluded that the defendants’ son was a tenant I still would not have been able to come to the conclusion that the defendants would not be liable for the negligent acts of the other tenant, in this case their son.

If one refers to statutory condition 2 and replaces the word “tenant” with the names of the parties who would be tenants under these circumstances then that condition would read as follows: Dominic O’Reilly, Sandra O’Reilly, and Dominic O’Reilly, Jr., shall keep the interior of the residential premises clean, and shall repair damage caused by a wilful or negligent act of Dominic O’Reilly, Sandra O’Reilly, and Dominic O’Reilly, Jr., or of a person whom they permit on the premises.

When the statutory condition is read in this light I conclude that each of these tenants are responsible to the landlord for the negligence of the other. Accordingly even if I had found the defendants’ son to be a tenant I conclude that the defendants are still liable under the Act for damage caused by his negligence. In this case I have already concluded that it was the negligent act of the defendants’ son that caused the fire.

Accordingly on the issue of liability I find that the defendants are liable to the plaintiff for the damages caused to the residential premises by the negligence of the son. [ 16 ] Dion argues that those decisions are either not applicable or are distinguishable on the basis that the statutory provisions under which they were decided are different than what s. 72 of the Act now provides and that in Apex , liability was established pursuant to the tenancy agreement. [ 17 ] I have not been persuaded that the issue Dion wishes to raise is an issue of mixed fact and law.

I am of the view that it is an issue of law alone and if Dion met the balance of the criteria required to be granted leave, I would do so. [ 18 ] However, I have not been persuaded that Dion has an arguable case.

As an occupier, Reid is a tenant as defined in the Act and she was so found to be by the RTC in a finding that is clear and cannot be challenged. [ 19 ] Furthermore, I am satisfied that what I wrote in Apex is applicable to the present case, as the differences that might exist in the legislation I was considering and the present Act are insufficient to make any significant difference in the liability that has been attributed to Dion. [ 20 ] Finally, I am also mindful that in the event that leave had been granted, the court would be dealing with an

interpretation of its constituent statute by the RTC and that, therefore, the applicable standard of review that would guide this court is most probably one of reasonableness. See Eibner v. Superintendent of Pensions of Manitoba and Tetra Tech Inc. (formerly Wardrop Engineering) , 2014 MBCA 65 at paras. 34-35 . I would be hard-pressed to find that the RTC’s decision in this case is unreasonable.

[ 21 ] Accordingly, I would deny the application for leave to appeal. J.A.