Docket: CACV2210 Shelagh Molloy Applicant - v. -, 2012 SKCA 5

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 5 Date: 20120125 Between: Docket: CACV2210 Shelagh Molloy Applicant - and - Olympus Holdings Inc. Respondent - and - Office of Residentia l Tenancies Respondent Before: Jackson J.A. (in Chambers) Counsel: Shelagh Molloy in person Perry Shchyschuk for Olympus Holdings Inc.

Linda Christensen for the Office of Residential Tenancies Application: From: Q.B.G. No. 2381 of 2011, J.C. of Regina Heard: January 20, 2012 Disposition: Application Allowed Written Reasons: January 25, 2012 By: The Honourable Madam Justice Jackson Jackson J.A. [ 1 ] This is an application for leave to appeal pursuant to s. 72(2) of The Residential Tenancies Act, 2006 , S.S. 2006, c. R-22.0001 (the “Act” ). Shelagh Molloy seeks leave to appeal a decision of McLellan J. of the Court of Queen’s Bench, dismissing an appeal from a decision of a hearing officer of the Office of Residential Tenancies.

Leave can be granted on a question of law or jurisdiction only. [ 2 ] According to the hearing officer’s notes, pertaining to the landlord’s November 23, 2011 application for a writ of possession, Ms. Molloy did not want to contest the eviction. She asked that she be permitted to stay until December 15, 2011, only, and would pay one- half of a month’s rent for the right to do so. Mr. Shchyschuk, the manager and caretaker of the building, agreed with Ms.

Molloy’s request on the basis that if the rent were not paid, the file would be reopened and the writ of possession would be served immediately. [ 3 ] On December 9, 2011, a person representing the landlord telephoned the Office of Residential Tenancies and advised that Ms. Molloy had not paid the December 1st rent. The writ of possession then issued that same day.

The hearing officer’s reasons for issuing the writ are: “The Landlord’s claim for possession having been admitted by the tenant, an extension granted on the tenant’s undertaking to pay, it is appropriate that an order for possession should issue to place the Landlord in possession of the rental premises immediately by reason of the tenant’s default.” Ms. Molloy states she was unaware that a writ of possession had issued until sometime later. [ 4 ] Ms. Molloy appealed to the Court of Queen’s Bench.

McLellan J. endorsed the file with the following: “Order to pay December rent and she is to vacate premises by January 1, 2012.” [ 5 ] The issue of law or jurisdiction arising out of the above recitation of the facts is whether the hearing officer had the authority or jurisdiction to grant a writ of possession in these circumstances, without hearing again from Ms. Molloy. She states that if she had been contacted by the hearing officer she would have told him she could not find a place to stay and would like to rectify the problems giving rise to the notice to vacate. Ms.

Molloy submits that it would then have been in the power of the hearing officer to order a hearing pursuant to s. 70(3) of the Act . [ 6 ] For its part, counsel for the Office of Residential Tenancies suggests that the hearing officer had the jurisdiction to issue the writ of possession, buttressing this conclusion with s. 70(6) of the Act , which reads: 70(6) After holding a hearing pursuant to this section, a hearing officer may make any order the hearing officer considers just and equitable in the circumstances , including all or any of the following: … (

d) subject to

section 68, an order granting possession of a rental unit; (emphasis added)

Section 68 dictates grounds which justify a landlord’s application to end a tenancy before the notice period has expired. Whether s. 70(6) provides the statutory authority for the hearing officer to refrain from issuing an order and associated writ of possession until the telephone application of the landlord and whether Ms. Molloy was then required to be part of the telephone application are questions of law. [ 7 ] Ms. Molloy has been self-represented throughout. She was unaware of s. 58(2) of the Act , which arguably would permit a rectification of the matters for which the landlord sought to terminate her tenancy. Further, she states she is prepared to rectify the

matters, which led to the notice to vacate being given. Ms. Molloy requests leave to appeal so that she can make her case to the Court, in an effort to have a new hearing to determine whether a writ of possession should issue based on the original application to vacate under ss. 58 , 67(1) and 70 of the Act. [ 8 ] The decision to grant leave is a discretionary one, guided by considerations of sufficient merit and sufficient importance (see: the decision of Cameron J.A. in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121).

With respect to the merit of the matter, questions of law have been raised. The merit of these questions must be considered in light of the fact that the notice to vacate and the application for a writ of possession are not based on a non-payment of rent, but for arguably rectifiable matters, i.e ., nuisance, threatening the caretaker/manager and tenants with lawsuits and keeping two cats, contrary to the tenancy agreement. [ 9 ] The matter is clearly of significant importance to Ms. Molloy.

As she submitted, with a 0.6 percent vacancy rate in Regina, it is unlikely that she will find another place to live quickly, if at all. Ms. Molloy had been a tenant for almost three years before the present difficulties arose. She became ill in the fall of 2011 and has been under a doctor’s care, which she submits contributed to the misunderstandings.

Broader importance stems from the fact that the Act is relatively new and its provisions untested. [ 10 ] In considering whether to grant leave, I have had regard for the purpose of the Act , which is intended to provide tenants with some security of tenure, albeit circumscribed (see: Christopher Bentley et al, Williams & Rhodes Canadian Law of Landlord and Tenant , looseleaf, 6th ed., vol. 2 (Toronto: Carswell, 1988) at §17-1). I have also considered that Ms. Molloy has faced some significant hurdles in presenting her case.

As she has indicated, few people in her position would be able to challenge the issue of a writ of possession. [ 11 ] Having regard for all of the above, I have decided to exercise my discretion and grant leave to appeal on the narrow question identified above: whether the hearing officer was empowered to order a writ of possession, following the landlord’s ex parte telephone call, and in light of Ms. Molloy’s previous agreement. As I have indicated, this question may be linked to the question of the hearing officer’s powers under ss. 70(3) and 70(6).

With this decision to grant leave, I now must address the question of rent. [ 12 ] While the application for possession was not based on non-payment of rent, Ms. Molloy has not paid the December and January rents, and the February rent will be due shortly. Mr. Shchyschuk, appearing for the landlord, makes the valid point that whether leave is granted or not, the landlord is entitled to receive its rent. Accordingly, I grant leave but if Ms.

Molloy does not pay the full arrears of rent and the February rent on or before February 1st, the stay of the writ of possession, imposed by s. 78(2) of the Act , will be lifted, which may well render the appeal moot. In order to avoid the issuance of the writ of possession, Ms. Molloy must present proof of full payment to the Registrar of the Court of Appeal by 4:00 p.m. on February 1, 2012, in the form of a receipt from the landlord. [ 13 ] The appeal will be expedited. I would ask the Registrar to set the matter down for the week of February 27, 2012. Ms.

Molloy must file her notice of appeal by February 3, 2012 and her appeal book by February 13, 2012. Self-represented persons are not required to file a factum but may file written argument (see Rule 35 of The Court of Appeal Rules ). If Ms. Molloy chooses to file a written argument, it must be filed by February 16, 2012. Olympus, if it chooses to file a factum, must do so by February 23, 2012. [ 14 ] For the purposes of this application, I permitted Mr. Shchyschuk to make submissions on behalf of the landlord.

He presented the case well, but it should be understood that the panel, hearing the appeal, will decide whether to allow the landlord to be represented by an agent, rather than a lawyer (see: Rule 10(2) of The Queen’s Bench Rules ). [ 15 ] The fact that leave has been granted will, of course, not prevent the parties from attempting to work out a solution pending appeal. [ 16 ] I thank counsel for the Office of Residential Tenancies for making submissions, at my request, regarding the administration of the Act . The Office is automatically a party to any appeal (see s. 72 of the Act ).

The Office may or may not choose to be represented when the appeal is heard. If the Office of Residential Tenancies chooses to be represented, and it intends to file a factum, it must do so by February 23, 2012. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of January, 2012.

__ ” “Jackson J.A.” ______________________ Jackson J.A.