2016 MBCA 85, 2016 MBCA 85

Citation: Lenko v The Government of Manitoba et al, Date: 20160909 2016 MBCA 85 Dockets: AI15-30-08397; AI15-30-08407 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : ) G. D. Lenko ) on his own behalf ) GARY D. LENKO ) A. J. Ladyka ) for the Respondents ) Government of Manitoba (Plaintiff) Appellant ) and Manitoba Housing ) and Renewal Corporation - and - ) ) J. D. Hall ) for the Respondent THE GOVERNMENT OF MANITOBA, ) City of Winnipeg THE MANITOBA HOUSING AND ) RENEWAL CORPORATION, THE CITY ) W. M.

Onchulenko and OF WINNIPEG and THE CANADA ) M. S. Pollock-Kohn MORTGAGE AND HOUSING ) for the Respondent CORPORATION ) Canada Mortgage ) and Housing Corporation ) (Defendants) Respondents ) Appeals heard: ) December 3, 2015 ) ) Judgment delivered: ) May 25, 2016 ) ) Motion under Court of ) Appeal Rule 46.2 ) ) Decision pronounced: ) September 9, 2016 PER CURIAM I. THE ISSUE [ 1 ] Mr. Lenko has applied for an order pursuant to Rule 46.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R for a rehearing of his appeal, which appeal was dismissed, in part, on May 25, 2016.

No certificate of decision has been entered. All parties have filed motion briefs. We are satisfied that an oral hearing is not required. [ 2 ] The essence of the issues for rehearing raised by Mr. Lenko are: (

i) the reasons are silent as to the motion to adduce fresh evidence on the appeal;

(ii) the Government of Manitoba (Manitoba) and Manitoba Housing and Renewal Corporation (MHRC) admitted vicarious liability forthe actions of its agent, the City of Winnipeg (Winnipeg), including the inspector, but this Court did not recognize that relationship ornote the principal’s liability or that of Canada Mortgage and Housing Corporation (CMHC); (iii) the motion judge failed to decide all of the motions that were outstanding and this Court did not provide direction to correct thatfailure; and (iv) the second appeal was dismissed on the basis of mootness, but that was not raised or argued at the appeal hearing. II. THE FACTS [3] The following is a

summary of the relevant facts, which are set out in detail in this Court’s decision of May 25, 2016. [4] Mr. Lenko owned a house in Winnipeg that was in need of repairs. On or about May 5, 2006, he applied for aforgivable loan under a government program called the Residential Rehabilitation Assistance Program (RRAP), which was a program toassist low-income homeowners with the cost of repairs to their houses that related to health and safety standards. [5] RRAP was being delivered under a 2005 agreement between CMHC and MHRC, which were jointly funding theprogram. When Mr.

Lenko made his application, RRAP for properties within the City of Winnipeg was being administered byWinnipeg on behalf of MHRC. Thus, Winnipeg was responsible to receive the applications, meet the applicants, inspect the properties,determine whether to recommend the applications and send them to MHRC to make a decision on whether to approve them. [6] Winnipeg determined that Mr. Lenko qualified financially for the program and sent out an inspector to inspect thehouse. There is a disagreement as to what was said by the inspector in the course of those inspections. Mr.

Lenko takes the position thatthe inspector told him that he had been approved for the program and that he could remove his furnace to facilitate an engineeringinspection, as a new furnace would be covered under the program. He also alleges that the inspector said that the program would coverthe cost of the engineering report. He proceeded to have the furnace removed and the engineering inspection completed, but, when heapplied for funding to cover the cost of the report, he was told that he did not qualify for the program. [7] Winnipeg says that Mr.

Lenko was never approved for the program due to a concern about his ability to do the workon his own and because he did not provide all of the required information to complete the application. Mr. Lenko was unhappy with histreatment by Winnipeg representatives and with the outcome of his dealings with them. Instead of providing the further information, hecontacted a more senior administrator at Winnipeg and representatives of MHRC and CMHC for help in proceeding with his repairs. Hewas unsuccessful in having his application approved or receiving any funding. [8] Mr.

Lenko alleges that he suffered a loss because he did not have the financial resources to replace the furnace and, asa result, he incurred extra expenses to heat the house and was eventually forced to sell the house at a loss. He is suing for damages tocover those expenses and losses. [9] No one from MHRC, CMHC or Manitoba had any involvement in the dealings between Mr. Lenko and the inspector,who was, at all relevant times, an employee of Winnipeg. III. THE MOTION TO INTRODUCE NEW EVIDENCE [10] The first issue relates to Mr. Lenko’s motion to introduce new evidence on the appeal.

That evidence consisted of anemail that he sent to the Minister and Deputy Minister of Family Services for Manitoba on April 7, 2015, regarding his concerns aboutRRAP and asking for further information about the program and Manitoba’s role in the delivery of the program, together with the replydated April 27, 2015, from Shannon Greer on behalf of the Minister. He says that these documents are relevant because they disclosethat the province played a major role in the delivery of RRAP. [11] The test for introducing new evidence on appeal is that set out in Palmer v The Queen, (SCC), [1980] 1SCR 759.

The four criteria are (at p 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases . . ..

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [12] This Court has regularly applied this test in civil cases – see, for example, Keystone Agri-Motive

(2005) Inc vDesrochers, 2014 MBCA 109 at paras 24-25, 310 ManR (2d) 314; Olfman v RBC Life Insurance Co, 2014 MBCA 26 at para 8, 303ManR (2d) 208; and Benson v Workers’ Compensation Board (Man) et al, 2014 MBCA 19 at para 2, 303 ManR (2d) 186. [13] The motion was dismissed at the hearing, primarily on the basis that the information was not new, in the sense that theinformation had already been disclosed in the affidavit of Shannon Greer which was affirmed on May 13, 2014, prior to the hearing ofthe motion. [14] Further, the evidence was disclosed to Mr. Lenko in reply to his email to the Minister in 2015.

There is no evidence tosuggest that it could not, as easily, have been obtained in the same way prior to the hearing of the motion, had Mr. Lenko made the

request at an earlier time. Thus, it does not meet the first criterion that it could not, with due diligence, have been produced for themotion. IV. THE MOTION FOR A REHEARING [15] The test applicable on a motion for a rehearing was recently explained by this Court in Samborski Garden Supplies Ltdv MacDonald (Rural Municipality), 2015 MBCA 53, 319 ManR (2d) 138 (at para 16): The rehearing of an appeal is an extraordinary remedy that is rarely granted. As Freedman, J.A. explained in Willman v.

DucksUnlimited (Canada) (2005), 2005 MBCA 13 , 192 Man.R. (2d) 39 . . ., an order allowing the rehearing of an appeal underCourt of Appeal Rule 46.2(1) is to be “granted only in exceptional circumstances, where the interests of justice manifestly compel such acourse of action” (at para. 9). (See also Rémillard v. Rémillard (2015), 2015 MBCA 42 , 319 Man.R. (2d) 94 . . . at paras. 7-9;Director of Child and Family Services (Man.) v. A.C. et al (2007), 2007 MBCA 59 , 214 Man.R. (2d) 177 at paras. 6-7; andDavis v.

Labour Board (Man.) et al., [2007] Man.R. (2d) Uned. 74 . . . at paras. 12-23.) As explained in Willman, the heavy burdenfor a rehearing may be satisfied in circumstances including, but not limited to where (at para. 10): 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably beenforeseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequentialserious risk of miscarriage of justice. (See also A.C., at para. 7.) IV.

ANALYSIS [16] The second issue on the appeal relates to this Court’s decision regarding MHRC, Manitoba and CMHC. The essence ofMr. Lenko’s claim is that of negligent misrepresentation related to the discussions that took place between him and the inspector as towhether he had qualified for RRAP, whether he could proceed to remove his furnace and whether the furnace would be replaced underRRAP. The motion judge stated that he was only dealing with the issue of negligent misrepresentation. [17] Winnipeg employed and supervised the inspector, who had no connection with the other defendants.

Thus, if theinspector made negligent misrepresentations to Mr. Lenko, it is Winnipeg that is vicariously liable to him, not the other defendants. Aswas stated in our decision, these are the claims that were determined by the motion judge and by this Court. [18] It is unclear from the pleadings as to whether Mr. Lenko is advancing other claims against any of the defendants. Themotion judge limited his reasons to the claim for negligent misrepresentation, and that is the only issue that was dealt with by this Court. [19] The third issue raised by Mr.

Lenko relates to a number of motions that were outstanding in the Court of Queen’s Benchat the time that the

summary judgment motions were heard. Once the motion judge determined that the claim for negligentmisrepresentation should be dismissed against all defendants, there was no purpose in deciding those other matters. There is nothinginappropriate in proceeding in this manner, and, in fact, it would be a waste of judicial resources to have done otherwise. With the re-instatement of the claim for negligent misrepresentation against Winnipeg, any motions relevant thereto remain outstanding. Likewise,if Mr.

Lenko has outstanding motions that relate to claims other than negligent misrepresentation, those also remain outstanding. [20] On the last issue, the second appeal related to the motion judge’s refusal to set aside his decision or to reopen thehearing. Given that the claim against Winnipeg can proceed to a new hearing, there would be no purpose in deciding whether the motionjudge erred in refusing the motion. Again, this Court is not required to address matters that will have no practical effect. VI. CONCLUSION [21] For the reasons set out herein, we are dismissing Mr. Lenko’s motion for a rehearing.

The defendants will all have theircosts on this motion against Mr. Lenko. JA JA JA