2019 MBCA 103, 2019 MBCA 103

Citation: Shelter Canadian Properties Limited v Hogue, Date: 20191015 2019 MBCA 103 Docket: AI18-30-09204; AI18-30-09205 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) G. A. Stefanson and shelter canadian properties ) I. B. Scarth limited ) for the Applicant ) ) No appearance (Landlord) Applicant ) for the Respondent ) ) T. D. Gisser - and - ) for the Residential ) Tenancies Commission ) ERIC A.

HOGUE ) Chambers motion heard: ) September 19, 2019 ) (Tenant) Respondent ) Decision pronounced: ) October 15, 2019 Cameron JA Introduction [ 1 ] This is a motion by the landlord for leave to appeal from two orders of the Residential Tenancies Commission (the RTC). First, it applies for leave to appeal Order No. W2018-004139A, made by the RTC on October 12, 2018, refusing the landlord an order of possession. It is also a motion for leave to appeal Order No. W2018-004140A of the RTC dated December 11, 2018, in which the RTC refused the landlord’s claim for compensation and costs.

Both of the above matters were heard by the RTC on October 11, 2018. The reasons for each were provided in a single decision dated December 11, 2018. [ 2 ] The tenant represented himself at the hearing before the RTC. He declined to file any written material in these proceedings and did not attend the oral hearing before me. [ 3 ] While not a party, counsel for the RTC filed written, and made oral, submissions.

The essence of the RTC’s submissions is that the landlord does not meet the test for leave to appeal to this Court. [ 4 ] As an administrative matter, when the landlord attempted to file its notice of motion for leave to appeal the October 12, 2018 order on December 27, 2018, a question arose as to whether it was past the filing deadline. No opposition was expressed to an extension of time to file the motion for leave to appeal and I would grant one to the date of December 27, 2018.

Background [ 5 ] On July 26, 2018, the landlord completed a “Form 10 Notice of Termination” requiring the tenant to move out of his suite by July 31 of that year. It alleged that the tenant failed to comply with his obligations under sections 73 - 74.1 of The Residential Tenancies Act , CCSM c R119 (the Act ) (these sections are reproduced in the appendix at the end of these reasons).

Section 73 provides that a tenant has a duty not to disturb the landlord or another tenant or occupant, or a person permitted in the residential complex by any of those persons in their enjoyment of the residential complex.

Section 74 imposes on the tenant a duty not to impair the safety of, or interfere with the rights of, the same persons identified in

section 73 .

Section 74.1 prohibits tenants from engaging in unlawful activity that causes damage to a rental unit or the residential complex, interferes with the enjoyment of the complex by the same persons identified in

section 73 , or that adversely affects the security, safety, health or well-being of those persons. It was the position of the landlord that the tenant harassed the staff, tenants, and maintenance personnel of the residential complex and that he caused damage by intentionally flooding his apartment on July 22, 2018. [ 6 ] The landlord and the tenant have had a tumultuous relationship of which I need not detail in its entirety. The only

historical events relevant to this proceeding are that, on April 27, 2018, the RTC confirmed a decision of the Residential Tenancies Branch not to grant an order of possession or an order of compensation requested (the prior decision). At that hearing, the landlord called evidence relating to incidents that had occurred on April 26, 2017 and on October 12-13, 2017, on which it relied when it filed its notices of termination relating to those incidents.

In addition, it presented evidence of incidents that had occurred in February 2018. [ 7 ] The RTC found that the incident which occurred on April 26, 2017 had been dealt with by way of a letter to the tenant at that time and that it was too dated to rely on in support of the notices of termination issued in October, November and December of 2017.

Regarding the incidents commencing on October 12 and continuing to October 13, 2017, when the tenant allegedly yelled at the assistant property manager (EB) while trying to serve her with repair notices, the RTC found that such action could not be condoned, but that his anger was understandable in light of the fact that a piece of the building had just fallen on his head. In addition, the RTC found that the landlord had not proven its allegations that the tenant sent EB disturbing texts or that he had spilled paint in a unit nearby his that was being renovated.

The RTC found that it did not have jurisdiction to deal with the February 2018 allegations as they were subject to notices of termination that form the subject of these proceedings. [ 8 ] Regarding the current proceedings, the proposed evidence identified by both parties to be called at the hearing before the RTC contained many of the same allegations as those that were subject to the prior decision. In order to manage the proceedings, a case conference was held.

After the case conference, the Acting Chief Commissioner sent a comprehensive letter, dated September 14, 2018, to the parties outlining, in part, the scope of the pending hearing including the landlord’s intended evidence and witnesses. In that letter, she stated, “the landlord’s representatives confirmed that it would not be relying on the events that gave rise to the [RTC’s] prior orders and decision as part of the current appeal” (emphasis added).

At the conclusion of that letter, she stated, “Should the parties have any questions, please contact the [RTC’s] Registrar”. [ 9 ] The landlord did not contact the registrar prior to the hearing. [ 10 ] At the hearing before the RTC, the landlord again called EB, as well as other witnesses, including the property manager at the rental unit, a maintenance worker, an employee of an electrical and maintenance company contracted by the landlord for maintenance at the residential complex, and a plumber called to inspect the tenant’s rental unit on July 22, 2018 in response to leaks and water damage complaints from units below the tenant’s. [ 11 ] The testimony of the witnesses included events from February, April and May-July 2018.

Of note, EB testified that, on February 9, 2018, she was granted a protection order (see The Domestic Violence and Stalking Act , CCSM c D93,

section 6 ) prohibiting the tenant from following her. [ 12 ] The evidence also concerned the landlord’s allegation that the tenant had purposely flooded his apartment in July 2018. [ 13 ] The tenant testified on his own behalf, denying many of the allegations asserted by the landlord, admitting some of them and providing innocent explanations for some. He denied causing the water damage or flood in his unit that occurred in July 2018.

Decision of the RTC [ 14 ] In its reasons, the RTC repeated that the landlord had confirmed at the case conference that it would not be relying on events covered by the RTC’s prior orders and decision, including the previously sought order of possession which was not granted. It considered the evidence of each of the landlord’s witnesses and noted when such evidence was contradicted by other evidence.

It also noted circumstances where the landlord lacked evidence. [ 15 ] In its reasons, the RTC noted that EB did not apply for the protection order until after the tenant had applied for a peace bond against her (see the Criminal Code ,

section 810 ). Nonetheless, it considered EB’s evidence that, in her view, the tenant continued to harass her after she had received the protection order. [ 16 ] The RTC concluded that the landlord had not met its onus on a balance of probabilities that the tenant posed an immediate risk to safety or had substantially interfered with rights warranting termination of the tenancy with only five days’ notice. It considered the allegations from February 2018. Among other things, it noted that the protection order that had been granted in February 2018, had been made without notice to the tenant.

It noted that the tenant had not parked near EB since mid July and that EB testified that things had improved so much that she was considering moving back into the same residential complex that the tenant was residing at in August 2018. [ 17 ] Next, the RTC held that the landlord had not met its onus on a balance of probabilities to prove extraordinary damage and extraordinary disturbance regarding the flooding of the tenant’s unit and the subsequent water damage to his and other units.

Specifically, it was “not satisfied that the landlord conducted an appropriate investigation to determine the source of the water on July 22, including checking the roof and other units on the 26 th floor.” In its view, the witnesses called by the landlord were influenced by a video taken of an earlier incident which caused them to take few steps to find the source of the water on July 22, 2018. Test for Leave to Appeal [ 18 ] Section 175(2) (now repealed) of the Act governs this application for leave to appeal. It provides that an appeal may be taken only on a question of jurisdiction or of law.

Decisions of this Court set out the criteria that must be met in order for leave to be obtained. [ 19 ] Monnin JA recently set out the criteria for leave to be granted in SAM (Management) Inc v Nash , 2018 MBCA 115 at paras 9-10 , quoting Pelchat v Manitoba Public Insurance Corp and Automobile Injury Compensation Appeal Commission , 2006 MBCA 90 (at para 2 ):

1. The question must be truly one only of jurisdiction or of law, and not one which “involve(

s) the court in an assessment or analysisof conflicting factual issues” (Shersty v. Manitoba Public Insurance Corp. (2002), 43 C.C.L.I. (3d) 35, 2002 MBCA 108, at para. 2, Fillion v. Manitoba Public Insurance Corp. (2004), 10 C.C.L.I. (4th) 182, 2004 MBCA 61, and cases cited therein). 2. The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediatecase, but in determining other similar disputes which are apt to arise in (the) future” (Wuziuk v. Director of Social Services (No. 2)(1979), (MB CA), 3 Man.R. (2d) 81 (C.A.), at para. 7. 3.

There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba PublicInsurance Corp. (2003), 50 C.C.L.I. (3d) 1, 2003 MBCA 95). [20] He further noted that “this Court does not get involved with reassessing findings of fact or reconsidering factual issues(see 3391397 Manitoba Ltd v Winnipeg (City) Assessor, (MB CA), 1998 CarswellMan 84 at para 5 (CA))” (at para11). Questions of mixed fact and law do not constitute questions of law (see Richmond Six Limited et al v The Assessor for the City ofWinnipeg et al, 2009 MBCA 58 at para 19).

Decision Is a Question of Law Raised? [21] The landlord maintains that the RTC committed a number of errors of law. First, it states that the RTC erred byexcluding evidence that was the subject of the prior decision on the basis of res judicata. [22] As earlier stated in its reasons of December 11, 2018, the RTC noted that, at the case conference held prior to thehearing, “The landlord confirmed that events covered by the [RTC’s] prior orders and decisions would not be relied upon in the currentappeal” (emphasis added).

I would pause here to repeat that, after the case conference but prior to the hearing, the Acting ChiefCommissioner sent a letter dated September 14, 2018 to all parties summarising the case conference and confirming her understandingregarding the evidence to be called. [23] It was not until after having received the RTC’s decision in this matter that one of the representatives who had attendedthe case conference wrote to the Acting Chief Commissioner stating that the landlord disagreed that it had confirmed at the caseconference that it would not be introducing such evidence.

Rather, it asserted that “at the case conference the landlord was advised thatsuch events had been heard by the [RTC] and were not permitted to be reintroduced as a result of ‘Res judicata’”.

The letter stated thatthe landlord’s position was that “it would not reintroduce material that the [RTC] would not consider”. [24] In a letter dated December 20, 2018, the Acting Chief Commissioner replied, stating that the landlord had notresponded to her letter summarising the case conference nor had it raised any issues, including whether such issues were res judicata atthe hearing before the RTC. [25] It is undisputed that none of the arguments now made regarding res judicata were presented to the RTC fordetermination.

I would also note that no mention of res judicata is found in the letter by the Acting Chief Commissioner thatsummarised the case conference, or the agreements made by the representative for the landlord at that conference.

Further, the landlorddid not raise any objection to the agreement not to rely on evidence presented in the earlier proceedings until after the decision of theRTC was given. [26] In keeping with the general assertion that new issues are not to be raised on appeal, this Court has held that issues orarguments not raised with the RTC at its hearing should not be considered for the purposes of a leave application (see Dorge v Cummineet al, 2004 MBCA 86 at para 9; and Town of Russell v Her Majesty the Queen in Right of the Province of Manitoba, 2011 MBCA 56 atpara 39).

In my view, the issue raised falls squarely within this prohibition. On this basis, I would deny leave to appeal on this ground. [27] Next, the landlord argues that the RTC failed to make findings of credibility and to consider evidence regarding whetherthe conduct of the tenant posed an immediate threat or caused the damage alleged pursuant to sections 73-74.1 of the Act. A review ofits reasons demonstrates that the RTC considered the allegations made regarding the alleged threats as well as the conduct of the tenant. It found that those allegations were dated and that some of them did not amount to harassment.

These were factual findings or, at most,findings of mixed fact and law that the RTC was entitled to make. [28] Contrary to the landlord’s assertion, the RTC was not obliged to find that the fact that a protection order had beengranted to EB regarding the tenant in February 2018 necessitated the conclusion that his behaviour constituted harassment justifying aneviction several months later.

Indeed, as noted by EB in her own testimony, she had contemplated moving back into the same residentialcomplex that the tenant resided in at the end of August 2018 because things seemed “diffused” with the tenant and that there had been nofurther incidents. The fact that the RTC disagreed with the landlord’s

interpretation of the evidence in this regard does not raise aquestion of law. [29] The RTC also considered and rejected crucial elements of the landlord’s evidence and arguments regarding the allegedflooding damage. The findings it made are clearly ascertainable from its reasons. In many instances, it rejected the assertions of thelandlord and accepted those of the tenant. It also noted that the testimony provided by the landlord in support of its position was notsupported by the independent evidence provided in photographs that were entered as evidence.

The RTC felt there was more that couldhave been done to investigate the source of the flood and that the opinions of the maintenance workers and the plumber were influenced

by an earlier video taken of overflowing water in the tenant’s sink for which they did not take action against him. All of the above are determinations of fact or, at most, amount to a question of mixed fact and law. [ 30 ] The landlord argues that the RTC failed to recognise and impose an evidentiary burden on the tenant to contradict the evidence it presented. In my view, this position has no merit. At the end of the day, the landlord had the onus on a balance of probabilities of proving its allegations and the RTC found that it had failed to do so.

I would also add that the tenant did testify regarding his version of the allegations of harassment. In addition, he denied causing the flood and provided possible explanations for it. That is evidence. [ 31 ] Thus, based on all of the above, it is my view that the landlord has not raised a question of law. [ 32 ] In addition, I would add that the arguments raised by the landlord are not ones that would merit the full attention of the Court. The landlord asserts that the evidentiary issues and the proper application of res judicata satisfy this consideration.

In my view, no evidentiary issues raising questions of law have been shown and the application of res judicata is not properly before this Court. [ 33 ] For all of the above reasons, I would extend the time to file the motion for leave to appeal the RTC order dated October 12, 2018 to December 27, 2018. I would dismiss the landlord’s motions for leave to appeal the orders of the RTC dated October 12, 2018 and December 11, 2018. I would not make an order of costs in favour of the tenant in light of the fact that he did not participate in these proceedings.

If the landlord and the RTC cannot agree as to costs, they may make further written submissions. JA APPENDIX The Residential Tenancies Act , CCSM c R119 (at sections 73 - 74.1 ): Duty not to disturb others 73 A tenant shall not unreasonably disturb, or allow another person the tenant permits in the residential complex to unreasonably disturb, (

a) the enjoyment for all usual purposes of the residential complex or any other rental unit by the landlord, another tenant or occupant of the residential complex, or a person permitted in the residential complex by any of those persons; (

b) the enjoyment of adjacent property for all usual purposes by occupants of that property; and (

c) the enjoyment of tenant services by another tenant or occupant. Duty not to impair safety or interfere with rights 74 A tenant or a person the tenant permits in the residential complex must not by act or omission (

a) impair the safety of the landlord, another tenant or occupant of the residential complex, or a person permitted in the residential complex by any of those persons; or (

b) interfere with the lawful right or interest of the landlord, another tenant or occupant of the residential complex, or a person permitted in the residential complex by any of those persons. Unlawful activity by tenant 74.1 A tenant or a person the tenant permits in the residential complex must not engage in an unlawful activity in a rental unit or the residential complex that

(

a) causes damage to a rental unit or the residential complex; (

b) interferes with the enjoyment of a rental unit or the residential complex by another tenant or occupant of the residential complex, the landlord or a person permitted in the residential complex by any of those persons; or (

c) adversely affects the security, safety, health or well-being of another tenant or occupant of the residential complex, the landlord or a person permitted in the residential complex by any of those persons.