Pothokkaran v Kopnitsky, 2017 MBCA 20

Citation: Pothokkaran v Kopnitsky, 2017 MBCA 20 Date: 20170209 Docket: AI16-30-08713 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : VINESH JOSE POTHOKKARAN ) V. J. Pothokkaran ) on his own behalf (Landlord) Applicant ) ) No appearance ) for the Respondent ) - and - ) T. D. Gisser ) for the Residential ) Tenancies Commission ) DANA KOPNITSKY ) Chambers motion heard: ) January 26, 2017 (Tenant) Respondent ) ) Decision pronounced: ) February 9, 2017 MARC M.

MONNIN JA [ 1 ] The applicant landlord applies for leave to appeal from a decision of the Residential Tenancies Commission (the Commission), namely order W2016-011154A. By that decision, the Commission overturned the decision of the Residential Tenancies Branch granting an order of possession. [ 2 ] The affidavit in support of the landlord’s application for leave is essentially a recital of the facts to which he testified at the hearing before the Commission.

That evidence can be summarized as allegations that the tenant had not paid her full rent, that she had assaulted and hit the landlord and threatened to kill him, was disturbing the peace with loud music, had caused damage to the premises and threatened neighbours, and that she used illegal substances on the premises. [ 3 ] An application for leave to appeal to the Court of Appeal from the Residential Tenancies Commission is governed by section 175(2) of The Residential Tenancies Act , CCSM c R119 (the Act ), w hich reads as follows: Appeal with leave 175(2) An appeal under subsection (1) may be taken only on a question of jurisdiction or of law and only with leave obtained from a judge of the Court of Appeal. [ 4 ] The decision of a judge of this Court to grant leave is a discretionary one, which discretion is to be exercised in accordance with principles that have been clearly set out in previous decisions of this Court.

Those principles, apart from the statutory test of requiring a question of jurisdiction or law, also require that the issue to be raised must warrant the attention of the Court and be applicable to other similar disputes. It must not involve the Court being asked to reassess a factual dispute (see Miller v Baker et al , 2013 MBCA 77 ; Lafreniere et al v Senyk et al , 2013 MBCA 18 ; and Sarna v Nesha , 2016 MBCA 55 ) . The Commission’s Decision [ 5 ] The Commission heard evidence from the landlord, the tenant and two witnesses called by the landlord, namely, a repairman and another tenant.

The Commission had this to say about the evidence it heard from the main parties:

The panel was of the view that neither the landlord nor the tenant were particularly credible or reliable in that neither presented a consistent narrative, neither party’s testimony corresponded with the documentary evidence or with the evidence of the two witnesses. . . . The panel did consider the evidence of DD [the repairman] and RG [the other tenant] to be credible and reliable. [ 6 ] With that in mind, the Commission dealt with the issues raised by the landlord as follows: (

a) Shortage of Rent [ 7 ] It found that the tenant had paid her rent in full and that the notice of termination did not comply with the requirements of the Act . (

b) Termination Notice [ 8 ] It noted that, since the notice of termination given by the landlord only provided seven days’ notice rather than a full rental payment, the landlord could only rely upon it if specific facts or conditions existed, as set out specifically in the Act . It did not find that these facts or conditions were present. (

c) As to the Tenant’s Duty Not to Impair the Safety of Others [ 9 ] It did not accept the evidence of the landlord that he was physically assaulted. As well, given the form of notice used, the landlord had to provide evidence that his safety was in immediate danger which the Commission found was not the case. (

d) The Allegation that the Tenant Smoked Marijuana [ 10 ] Again, the Commission found that, given the form of notice provided, the landlord had to show an immediate risk to the health or safety of himself or other tenants pursuant to

section 74.1 which the Commission did not find. (

e) Damage to the Premises [ 11 ] The Commission found that, while there had been a small hole made in the wall in the common area and the tenant was responsible for this damage, which it assessed at two hundred dollars, it was not extraordinary, which was required, given the abbreviated notice of termination. (

f) Disturbances Caused by the Tenant [ 12 ] While finding that the evidence satisfied it that the tenant had caused loud noises in the building on a certain date, the form of notice provided required that it be an “extraordinary disturbance” contrary to

section 73 which the Commission found was not the case. [ 13 ] As a result of all these findings, the Commission did not grant the order for possession but did order the tenant to pay damages in the amount of two hundred dollars. [ 14 ] For this Court to become involved in any of the above issues would involve it in a review of a factual dispute and of issues of mixed fact and law which fall squarely within the jurisdiction of the Commission. These are not issues which are applicable to other similar disputes or which are of such importance to warrant an appeal to this Court. [ 15 ] Accordingly, I would not grant leave to appeal and the application is dismissed without costs. JA