Sarna v Nesha, 2016 MBCA 55

Citation: Sarna v Nesha, 2016 MBCA 55 Date: 20160530 Docket: AI16-30-08590 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) Z. Nesha COBY BENJIMAN SARNA ) on her own behalf ) ) No appearance (Landlord) Respondent ) for the Respondent ) ) T. D. Gisser - and - ) for the Residential ) Tenancies Commission ) ZAIBOON NESHA ) Chambers motion heard: ) May 26, 2016 ) (Tenant) Applicant ) Decision pronounced: ) May 30, 2016 LEMAISTRE JA [ 1 ] The tenant seeks leave to appeal the decision of the Residential Tenancies Commission (the Commission) granting the landlord an order of possession and costs. For the reasons that follow, the application for leave to appeal is denied. [ 2 ]

Section 175 of The Residential Tenancies Act , CCSM c R119 (the Act ) establishes that leave to appeal from an order of the Commission may only be granted where there is a question of law or jurisdiction. The test is stringent and was recently explained by Cameron JA in Thompson 28 Company Ltd v McLellan , 2014 MBCA 10 (at para 9 ): 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 , 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. Finally, 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 . [ 3 ] The landlord gave the tenant a notice to move out by November 12, 2015, pursuant to

section 96 of the Act . When the tenant did not move, the landlord applied for an order of possession from the Residential Tenancies Branch (the Branch). The landlord also asked the Branch to order the tenant to pay for costs associated with cleaning up the yard and filing the application. The Branch denied the application for an order of possession, but granted the application for costs in the amount of $265. The landlord appealed to the Commission.

After hearing from the landlord and the tenant, who was assisted at the hearing by an advocate, the Commission granted an order of possession which requires the tenant to move out on or before May 31, 2016 at 11:59 p.m. and ordered costs of $110. The Commission also confirmed the Branch’s decision awarding the landlord $200 in costs for cleaning up the yard. [ 4 ] The tenant seeks leave to appeal the decision of the Commission on the basis that the landlord misled the Commission and she did not get a chance to speak at the hearing or present evidence of repairs required to the rental unit.

The tenant filed two affidavits in support of her motion. In the affidavits, she asserts that the landlord wants her out of the unit so that he can avoid paying the cost of repairs and that she did not get a chance to respond to his submission at the hearing. She also asserts that the Commission made errors in its factual findings. [ 5 ] The landlord did not appear at the hearing, though he was provided with the tenant’s materials on May 20, 2016, and the Commission’s materials on May 25, 2016. [ 6 ] Counsel for the Commission argues that the Commission’s finding that the tenant breached

section 74 of the Act is grounded in the evidence and does not raise a question of law alone or of jurisdiction.

[ 7 ] In finding that the landlord had met the requirements of sections 74 and 96 of the Act , the Commission reviewed the evidence, the submissions of the parties and the applicable legislation, and made findings of fact.

The Commission found the landlord was “completely credible” and the tenant was “unable to acknowledge obvious facts.” The Commission concluded that “the unit is so terribly cluttered that it is a serious fire hazard and an immediate risk to the safety of the tenant and anyone entering the unit” and that the tenant was responsible for the clutter. [ 8 ] After considering the lengthy written decision of the Commission, the materials filed by the tenant, as well as counsel for the Commission, and after hearing the tenant, I have concluded that the Commission gave the tenant a reasonable opportunity to be heard and present her evidence at the hearing and that all of the remaining issues are factual in nature and do not raise questions of law.

While I have sympathy for the tenant’s circumstances, I must deny leave to appeal. I make no order as to costs. JA