Campbell v Harvey, 2018 MBCA 93

Citation: Campbell v Harvey, 2018 MBCA 93 Date: 20180927 Docket: AI18-30-09109 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) Z. M. Jones TERESA CAMPBELL ) for the Applicant ) ) T. Campbell (Landlord) Respondent ) on her own behalf ) ) T. D.

Gisser - and - ) for the Residential ) Tenancies Commission ) SHELBY HARVEY ) Chambers motion heard: ) September 20, 2018 ) (Tenant) Applicant ) Decision pronounced: ) September 27, 2018 hamilton JA [ 1 ] The tenant seeks leave to appeal the order of the Residential Tenancies Commission (the Commission) that allowed, in part, the landlord’s claim for unpaid rent and damages. [ 2 ] The Commission granted the landlord’s claim for rent in the amount of $2,100, which represented two months’ rent until the rental unit was rented again, and her claim for Hydro costs while the rental unit was vacant.

It denied several other aspects of the landlord’s claim for damages. After setting off the amount of the damage deposit retained by the landlord, the Commission ordered that the tenant pay the landlord $1,708.05. [ 3 ] The tenant and her partner, Tyler Motheral, lived in the rental property. They moved in on September 15, 2017 and moved out on December 15, 2017, with one month’s notice to the landlord. [ 4 ] The landlord put into evidence a written lease for a one-year tenancy, with the tenant and Mr. Motheral as the tenants. The tenant and Mr. Motheral disputed that they signed the lease.

The Commission wrote: The lease shows two signatures but, even without being experts, it was clear to the panel that the male tenant’s signature on other documents was nothing like what appeared on the lease. The female tenant’s signature appears to be valid. As a result, the panel finds that only the female tenant has signed the one-year lease and as such, this order cannot be enforced against the male tenant. [ 5 ] Granting leave to appeal a decision of the Commission is a discretionary decision. The test for granting leave is stringent.

Leave may only be granted: 1. for a question of law or jurisdiction; 2. if the question of law or jurisdiction has an arguable chance of success; and

3. if the question of law or jurisdiction warrants the attention of the Court in that it will be applicable to other similar disputes. See section 175(2) of The Residential Tenancies Act , CCSM c R119. Also see Sarna v Nesha , 2016 MBCA 55 ; and Thompson 28 Company Ltd v McLellan , 2014 MBCA 10 . [ 6 ] The tenant argues two questions of law: 1. Did the Commission misapprehend the evidence before it regarding the validity of the signatures on the lease? 2.

Did the Commission err as to the effect of fraud upon the validity of the contract? [ 7 ] The tenant’s position is that the Commission erred in law by misapprehending the evidence. The asserted misapprehension is the failure by the Commission to consider all of the evidence to determine the validity of the lease. She says that the Commission’s finding that the lease was not enforceable against Mr.

Motheral, but was enforceable against her, does not make sense in all of the circumstances and should have raised the issue of fraud, which was not considered by the Commission. [ 8 ] The failure of a decision-maker to consider certain evidence can, in limited circumstances, lead to a question of pure law.

This can occur when the decision-maker states the correct law which requires a consideration of certain factors or evidence but fails to do so (see Richmond Six Limited et al v The Assessor for the City of Winnipeg et al , 2009 MBCA 58 at para 17 ). [ 9 ] I see no such misapprehension of evidence here, as argued by the tenant.

The Commission’s reasons demonstrate that it considered the evidence and the submissions presented at the hearing and addressed the issues raised by the parties. [ 10 ] At the heart of the dispute before the Commission was whether the lease was month to month or for a one-year term and who signed the lease.

As is most often the case before the Commission, this was an evidentiary dispute that required the Commission to make findings of fact as to what happened between the parties, the nature of the tenancy agreement, who signed it and the resulting legal implications for the parties. [ 11 ] The Commission concluded that there was an enforceable tenancy agreement against the tenant.

This is a finding of mixed fact and law (see Dorge v Cummine et al , 2004 MBCA 86 at para 8 ; Lafreniere et al v Senyk et al , 2013 MBCA 18 at para 12 ; and Manitoba Housing v Gabriel et al , 2017 MBCA 64 at para 22 ). [ 12 ] As such, the tenant has not demonstrated a question of law or jurisdiction. Given that, I need not consider the other criteria required for leave to appeal and must dismiss her application for leave. [ 13 ] I dismiss the tenant’s motion for leave to appeal. The tenant shall pay nominal costs in favour of the landlord in the amount of $50 all-inclusive of disbursements. JA