Ramsewak et al. v. Field et al., 2014 MBCA 94

Citation: Ramsewak et al. v. Field et al., 2014 MBCA 94 Date: 20141015 Docket: AI 14-30-08235 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. Carrol ) on behalf of T. L. Field MYMOON ROSE RAMSEWAK and ) DUTCHIN RAMSEWAK ) M. R. Ramsewak and ) D. Ramsewak (Landlords) Respondents ) on their own behalf ) - and - ) T. D. Gisser ) for the Residential ) Tenancies Commission TAMMY LEANNE FIELD and ) JAMES TOURAND ) Chambers motion heard: ) October 9, 2014 (Tenants) Applicants ) ) Decision pronounced: ) October 15, 2014 MARC M.

MONNIN J.A. [ 1 ] Ms Field seeks leave to appeal a decision of the Residential Tenancies Commission (the Commission) whereby she was ordered to pay the landlords (Mr. and Mrs. Ramsewak) the sum of $5,240.29 less the amount of the security deposit and interest held by the landlords.

The amount is comprised of different heads, but for purposes of this application for leave, it included rent for one month in the amount of $1,100 and damages for flooring replaced by the landlords in the sum of $2,000. [ 2 ] On the hearing of this application for leave to appeal, Ms Field, who lives in Gillam, Manitoba, was represented by Mr. Kevin Carrol. I was advised by Mr. Gisser that Mr. Carrol’s phone number was shown on the record before the Commission and Mr. Carrol advised the court that he had been present for the hearing. Given the circumstances, I allowed Mr.

Carrol to represent the interests of Ms Field who he described as his wife, although not living together. [ 3 ] While Mr. Tourand appears in the style of cause, he was not a tenant and proceedings were discontinued against him by the Commission. [ 4 ] Neither Ms Field nor Mr. Carrol filed any material other than the notice of motion for application for leave to appeal. In that document, the grounds for appeal are stated as: - misapplication of Section 87(2) of the Act [ The Residential Tenancies Act , C.C.S.M., c.

R119] - failure to properly apply residential tenancies policy and procedures guidelines pertaining to damages. [ 5 ] At the hearing of the appeal, Mr. Carrol explained that the application for leave to appeal comprised of two grounds, namely:

a) a challenge to the Commission’s finding on the issue of rent: According to Mr. Carrol, a document filed at the hearing before the Commission established that the landlords had re-leased the premises as of January 4, 2014, and, therefore, were not entitled to additional rent for January as that would amount to receiving double rent for the premises, something which is in conflict with the provisions of s. 87 of The Residential Tenancies Act , C.C.S.M., c. R119

(the Act ).

b) seeking to set aside the award of damages of $2,000 as it was for the replacement of carpet with a bamboo floor, something of much greater value than the carpet for which the landlords were seeking compensation: Mr. Carrol’s submission was this was inconsistent with the Residential Tenancies Policy and Procedures Guidebook referred to by the Commission in its decision.

In his view, the approach taken by the Residential Tenancies Branch which awarded a sum of $607.95 for the carpet replacement was the preferred route. [ 6 ] Leave to appeal a decision of the Commission by virtue of s. 175(2) of the Act must be taken on a question of jurisdiction or of law with leave obtained from a judge of this court. The two grounds raised by Ms Field in this case are not, in my view, grounds alleging errors of law. [ 7 ] On the first issue, that of rent, Ms Field’s position is that there should be no double payment of rent.

She argues that the existence of a condition report dated January 4, 2014, suggests that the premises were re-leased in early January and she should not have to compensate the landlords for the January rent. The evidence before the Commission from the landlords was that new tenants moved into the premises on February 1, 2014. The landlords, therefore, only sought rent for the month of January given that the notice from Ms Field that she would be moving out came on December 2, 2013, and she left on December 31, 2013.

Ms Field’s evidence before the Commission was that “she was not really disputing January’s rent.” [ 8 ] Therefore, on this issue, not only is the tenant’s position not fairly arguable, it would require a revaluation of the facts which the Commission properly found were in favour of the landlords. [ 9 ] The second issue, the damage component of the award, deals with the replacement of carpet with bamboo floor. The Commission did an evaluation of the loss of value arising from the damaged carpet.

It recognized that some of the flooring was replaced with superior flooring, as a result of which it discounted the amount of damages. Again, this is a factual determination made by the Commission which fell within its mandate and is not an issue which raises a question of law. [ 10 ] I, therefore, find that the tenant has not raised an error of law which would justify granting leave to appeal. The application is dismissed. J.A.