Champagne v. Window et al., 2015 MBCA 1

Citation: Champagne v. Window et al., 2015 MBCA 1 Date: 20150106 Docket: AI14-30-08271 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) C. M. Champagne ) on her own behalf CHRISTINA M. CHAMPAGNE ) ) No appearance (Landlord) Applicant ) for the Respondents ) - and - ) D. Fenske ) for the Residential ) Tenancies Commission KELLI WINDOW and ) CHRIS BESTVATER ) Chambers motion heard: ) December 18, 2014 (Tenants) Respondents ) ) Decision pronounced: ) January 6, 2015 MARC M.

MONNIN J.A. [ 1 ] The landlord, Ms Champagne, seeks leave to appeal from an order of the Residential Tenancies Commission (the Commission) whereby it ordered certain repairs to be made on or before a certain date pursuant to s. 170(1) of The Residential Tenancies Act , C.C.S.M., c. R119 (the Act ). The order was made as a result of an appeal by the landlord from the Director’s Order No. W2014- 012255A, which the Commission varied. [ 2 ] The landlord is the registered owner of a home at 58 Carriage Road in Winnipeg.

In an affidavit filed on this application for leave to appeal, the landlord indicates that she purchased the home as a private residence for herself and her family and that an order for the sale of the home has been made in the Court of Queen’s Bench at the request of her spouse. She states that the home was never a rental property, but provided temporary limited-term housing and is therefore excluded from the application of the Act .

The landlord therefore argues that the Residential Tenancies Board (the Board) and the Commission both lacked jurisdiction to deal with the complaint filed by the tenants. [ 3 ] A brief review of the proceedings before the Board and Commission are in order. The matter proceeded as a result of a complaint by the tenants stating that they were tenants of the landlord. An inspection was conducted by an officer of the Residential Tenancies Branch (the Branch), Mr. Hillman, who issued reasons for decision after an onsite inspection. In his reasons for decision, Mr.

Hillman indicated the repairs that were required to be done and stated that if they were not he would issue an order for the tenants to pay the rent to the Branch and to hire a contractor to do the work with funds provided from those rental payments. [ 4 ] The landlord appealed that order to the Commission. At the hearing before the Commission, the landlord appeared, as did the tenants and Mr. Hillman on behalf of the Branch.

The landlord took issue with the fairness of the process and with the requirement of the repairs alleging that they were already done or were outside the tenancy agreement. [ 5 ] According to its reasons for decision, before the Commission the landlord argued that it had no jurisdiction over the premises as she stated the tenants did not rent the entire house and specifically did not rent the basement or the driveway. [ 6 ] In its decision, the Commission noted that there was no written lease between the parties. There was nothing indicating that the basement or the driveway were excluded from the rental.

It found that the basement was properly part of the rental and that the driveway, which was the cause of the drainage into the laundry room in the basement, was part of the rental. As a result of its findings, the Commission varied the order for repairs, but maintained a requirement that a significant number of the items were to be done. [ 7 ] An appeal from a decision of the Commission lies under the Act only on a question of law or jurisdiction and with leave obtained from a judge of this court ( s. 175(2) ).

The criteria to be used on an application for leave to appeal has been discussed many times in our court and as I stated in Miller v. Baker et al. , 2013 MBCA 77 , three factors must be considered, namely (at para. 7):

….

a) Whether the question is truly one of jurisdiction or of law and does not involve the court reviewing factual issues;

b) That the case is one that warrants the attention of the court; and

c) That there is an arguable case of substance, i.e., one with a reasonable prospect of success. (See The Children’s Clubhouse v. Helgason et al. , 2012 MBCA 32 , Edison Rental Agency v. Klippenstein , 2011 MBCA 3 , and the cases referred therein). (See also Thompson 28 Company Ltd. v.

McLellan , 2014 MBCA 10 .) [ 8 ] In her motion brief, her affidavit and her oral submission on the application, the main thrust of the landlord’s argument is that the Act does not apply to the arrangement which the tenants have with her and that accordingly the Commission (and by implication, the Board) did not have jurisdiction to adjudicate the issue. [ 9 ] To the best of my understanding from the submissions made by the landlord and her material, she claims that the house at 58 Carriage Road is a private residence and that she has some form of contract with the tenants which is not a tenancy agreement, but rather, may be in the form of a “cooperative” or temporary arrangement.

Therefore, she argues it is not a leasing arrangement subject to the Act . [ 10 ] At the hearing, she provided a copy of s. 3(1) of the Act which lists a number of forms of accommodation which are exempted from the application of the Act . When asked specifically which exemption applied, she referred to subss. 3(1)(

c) dealing with housing cooperatives and 3(1)(

e) dealing with accommodation provided to temporarily shelter persons in need. During the course of her submissions, the landlord also made allusion to procedural issues, but was unable to articulate specifically what those procedural issues involved. [ 11 ] In his response, counsel for the Commission referred to s. 2 of the Act which reads: Application 2 This Act applies to rental units and residential complexes and to tenancy agreements, whether made before or after this Act comes into force, despite any other Act and despite any agreement or waiver to the contrary.

As well as ss. 6(1) and 6(2) which read: Waiver of Act void 6(1) Every agreement, oral or written, express or implied, whether entered into before or after the coming into force of this Act , is against public policy and void to the extent that it restricts or waives or purports to restrict or waive the application of this Act or rights and obligations under this Act.

Arrangement or payment to defeat Act void 6(2) An arrangement, payment or other device the purpose of which is to defeat this Act is against public policy and void. [ 12 ] The proceedings before the Commission were on the basis of the tenants having a tenancy agreement with the landlord and, from the facts found by the Commission, that appears to be the case. Whatever arrangement the landlord believes she may have with the tenants, the facts found by the Commission confirm that it was a tenancy agreement which fell within the purview of the Act .

I see no error of law or jurisdiction in reaching that conclusion. [ 13 ] The balance of the comments found in the landlord’s material relate to the specifics of the matters before the Board as to

the need for particular repairs. Those are matters of fact which do not engage the application of s. 175. [ 14 ] For these reasons, I dismiss the application for leave to appeal without costs. J.A.