Malhi v. Squires et al., 2015 MBCA 34

Citation: Malhi v. Squires et al., 2015 MBCA 34 Date: 20150415 Docket: AI15-30-08357 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) H. S. Malhi ) on his own behalf HARPAL SINGH MALHI ) ) C. Klassen (Landlord) Applicant ) on his own behalf ) ) - and - ) D. Fenske ) for the Residential ) Tenancies Commission SAMANTHA SQUIRES and ) CORY KLASSEN ) Chambers motion heard: ) April 9, 2015 (Tenants) Respondents ) ) Decision pronounced: ) April 15, 2015 MARC M. MONNIN J.A. [ 1 ] Mr.

Harpal Malhi, a landlord, seeks leave to appeal a decision of the Residential Tenancies Commission (the Commission) which set aside an order of the Residential Tenancies Branch ordering his tenants Cory Klassen and Samantha Squires to pay him the sum of $2,715.29. [ 2 ] The Commission, after hearing from Mr. Klassen and Mr. Malhi, dismissed the latter’s claim and ordered him to return the tenants’ security deposit. [ 3 ] The decision of the Commission is subject to appeal to this court upon leave being granted by a judge of this court.

An appeal is limited to questions of jurisdiction or law and is granted according to criteria which this court has enunciated on many occasions. As 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).

[ 4 ] Mr. Malhi acknowledged having difficulty articulating the legal errors which he claims the Commission committed in reaching its decision. However, from the material and his submissions, I understand that his claims cover three areas; namely, a claim for damages to the premises; a claim for the cost of cleaning the premises on the tenants’ departure; and a claim for an unpaid utility bill. [ 5 ] As to the claim for damages, the Commission found that the landlord had failed to meet his onus of proving that any damages had been caused by the tenants on a balance of probabilities.

The Commission noted that it preferred Mr. Klassen’s evidence to that of the landlord with respect to the various areas of damages for which a claim was advanced. [ 6 ] As to the claim for cleaning costs, the Commission confirmed that the co-tenant, Ms Squires, who left the premises some time after Mr. Klassen, had breached her obligations. However, the Commission noted that Mr. Klassen had offered to do the necessary cleaning but the landlord chose to hire someone else to do the work. It preferred Mr.

Klassen’s evidence in this area as well and held that the tenants should not be responsible to reimburse the landlord if they offered to do the required cleaning but were not given the opportunity to do so. [ 7 ] As to the utility bill, the Commission noted that it had been considered at a previous hearing and that, no compensation having been granted, it was not prepared to reconsider the matter.

It also held that the landlord had not submitted his documentary evidence regarding that issue until the hearing itself, contrary to the requirement that it be filed five working days before the hearing. [ 8 ] For those reasons, the Commission denied the landlord’s claim in full and ordered repayment of the security deposit. [ 9 ] With respect to the claim for damages and cleaning, the landlord’s position on leave to appeal is that the Commission erred when it preferred the evidence of Mr. Klassen over his. He indicated that he presented photographs showing the damages. Furthermore, he testified that Mr.

Klassen did not respond to his inquiries as to when the cleaning would take place such that it was necessary for him to take the matter into his own hands. [ 10 ] The Commission’s decision on why it preferred the evidence of Mr. Klassen to that of the landlord is not very well set out. It seems to be somewhat conclusory. However, there is sufficient explanation as to the evidence presented by Mr. Klassen on the damages to allow the Commission to reach the conclusion that it did.

As well, this is a disagreement on the factual background and is not a matter in which this court will become involved. [ 11 ] On the cleaning issue, again the Commission preferred Mr. Klassen’s evidence without articulating why it did so. However, if an explanation was provided by Mr. Klassen, which appears to be the case, that again is a factual determination which would not normally engage this court. [ 12 ] On the utility bill issue, it would appear that the Commission proceeded on a misapprehension as to its previous decision.

The previous decision was not a determination on the merits of whether the tenants were responsible for the bill. In fact, the previous decision, which forms part of Mr. Malhi’s affidavit, shows the Commission was of the view that “on a balance of probabilities” Ms Squires owed the water bill and was unlikely to pay it, but as the landlord had not yet been charged the amount, they were unable to award it. It was, therefore, not a determination on the merits and the Commission should have considered it at this hearing. [ 13 ] Unfortunately for Mr.

Malhi, the Commission’s decision not to accept documentary evidence that the amount was owed because it was not received five working days before the hearing, although harsh and somewhat arbitrary, was within the Commission’s discretion and in accordance with its practice. While the Commission may have erred in failing to consider the claim, there was, as a result of the ruling on evidence, none upon which they could have awarded damages. [ 14 ] While I appreciate Mr.

Malhi’s frustration at such a conclusion, in the end, there are no arguable errors of law or jurisdiction which would warrant granting leave to appeal. Therefore, the application is dismissed without costs. J.A.