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New Manitoba tenancies legislation ‘may not actually achieve what it sets out to do,’ says lawyer

Friday, March 29, 2019 @ 9:06 AM | By Terry Davidson

A proposed amendment in Manitoba making its tenancies commission the final decision-maker in residential disputes “may not actually achieve what it sets out to do,” given the judiciary will still have a role to play in making sure tribunals properly apply their laws, says a lawyer.

These comments follow the March 13 announcement by Manitoba’s government about introducing a legislative amendment to the province’s Residential Tenancies Act that would mean only “one right of appeal instead of two” when it comes to ongoing disputes.

If it passes, Manitoba's Residential Tenancies Commission would have the final say and the current option of subsequently appealing to the province's Appeal Court would be eliminated.

Currently, those engaged in disputes are first heard by the Residential Tenancies Branch. An appeal of that decision can then be taken to the Residential Tenancies Commission. If a party is not happy with the commission’s decision, they can seek leave from the Court of Appeal.

But under the new legislation, the buck would stop with the commission — at least in theory.


Allison Fenske, Manitoba Legal Aid

Allison Fenske, a lawyer with Manitoba Legal Aid’s Public Interest Law Centre, said the amendments would “take away the direct pathway to the Court of Appeal," but that someone unhappy with a commission decision could still file an application with the province’s Court of Queen’s Bench.

“What could happen is that someone files an application for judicial review ... and then in the context of that application, the court would look at the intention of the legislature to have the commission’s decisions be final in figuring out how much deference to give the commission in the context of that judicial review,” said Fenske.

Fenske said the tribunal's “privative clause,” which would prevent someone from directly seeking an appeal, would not necessarily stop a court’s intervention. While the clause would be used in attempts to “eliminate or restrict the scope of judicial review by courts,” she said, it would not be as cut-and-dried as simply deeming the commission’s decisions as final.

“No tribunal has unlimited powers. Superior courts have an inherent jurisdiction that includes powers of review of administrative decision-makers, like the [Residential Tenancies] commission. While these powers of review are also not unlimited, an individual could still apply to the courts for judicial review of the commission’s decision. The fact that there is a strong privative clause in the legislation is only one factor in determining how much discretion a reviewing court will give a tribunal's decision.”

Fenske said the privative clause, like other such clauses used by tribunals, is open to judicial interpretation.

Besides, she said, Appeal Courts already have a “gatekeeping” function.

“Courts have a certain inherent jurisdiction, so [the amendment] may not actually achieve what it sets out to do if someone was to try and suggest that there was an opportunity to have their matter judicially reviewed,” Fenske said. “The other thing that is important to note is, currently, there is already a gatekeeping role played by the courts, in that by going to the Court of Appeal, it’s for a leave application, so not every matter where someone seeks leave to appeal is granted leave.”

In a March 13 press conference, Manitoba Justice Minister Cliff Cullen said the new legislation would put his province’s “appeal mechanism and process in line with what other provinces are doing.”
“Previous legislation allowed an appeal to the Court of Queen’s Bench, but only when there was a question of law or jurisdiction,” Cullen said. “So, there were very fine parameters around that and we’re finding it wasn’t being used very often.”

Most cases that went on to judicial appeal, he added, ended up being “thrown out.”