This information is meant to explain the procedure in the Manitoba Court of Appeal regarding appeals from a decision of the Residential Tenancies Commission. It is not intended to give you legal advice. The clerks in the Court of Appeal will do as much as they can to help you, but they are not allowed to give you legal advice. It is strongly recommended that you consult with a lawyer. While you can represent yourself, a lawyer is a professional, legally trained individual whose job is to represent you and ensure that your legal interests are best presented to the Court.
I took my case to the Residential Tenancies Commission, and I lost. Should I now appeal to the Court of Appeal?
An appeal to the Court of Appeal takes a considerable amount of time, effort, and money. There is paper work that must be done correctly, documents that must be compiled and served to the relevant parties, and appearances made before the Court of Appeal. Your interests are best served by hiring a lawyer. However, if you choose to represent yourself the following information may be useful.
Do I automatically get a chance to appeal?
You do not automatically get a chance to appeal a decision of the Residential Tenancies Commission. You must seek leave to appeal. This means you need to get permission from a judge of the Court of Appeal, in order for your case to be heard. The Notice of Motion is the initiating document that needs to be filed in order to give you the ability to seek leave to appeal.
The leave to appeal is not a rehearing of the case. The person who lost before the Residential Tenancies Commission (the applicant before the Court of Appeal) argues before the judge that the Commission made a mistake in coming to its decision. For example, the Commission used the wrong law to reach their decision. It is important to identify what mistake you think the Commission made. The Court of Appeal does not change a decision just because the Court might disagree with it. The Residential Tenancies Commission has already heard the evidence and made a decision. The Court of Appeal can only change the decision if the Commission made a mistake of jurisdiction or a mistake of law. A mistake of jurisdiction is when the Commission makes a mistake regarding the Commission’s legal authority to make their decision. A mistake of law is when the Commission makes a mistake regarding a legal principle or statute. The Court of Appeal does not hear appeals based on mistakes regarding the facts of the case.
A mistake of law or a mistake of jurisdiction are very hard things to determine and many experienced lawyers and judges struggle to determine whether a mistake of law or a mistake of jurisdiction have actually occurred. It is a very good idea to be represented by a lawyer or to seek advice on whether such a mistake was made.
What happens in the courtroom on a motion for leave to appeal?
A motion for leave to appeal is heard by a single judge of the Court of Appeal in Chambers (Courtroom 130). Chambers sittings are only held on Thursdays.
The judge will hear your argument in chambers and then hear from the other party or parties. The Residential Tenancies Commission (or a lawyer for the Commission) may be present at the leave for appeal. The Residential Tenancies Commission has a right to be heard.
The judge will determine whether there is a point of law or a point of jurisdiction that can be argued. Even if a mistake of law or a mistake of jurisdiction arises, the granting of leave is discretionary, therefore there must be substance to the point and the point should be applicable to future cases. The point should be of importance beyond your specific case.
Sometimes the judge will give you their decision orally after you have argued. Other times, the judge may “reserve” their decision. That means he or she will take some time to think about the arguments. In that case, a written decision will be released for pickup at the Court of Appeal registry office. Make sure the court registrar has your correct address and phone number.
How do I get the appeal process started?
Every matter brought before the Court of Appeal starts with paperwork. Various forms and documents need to be completed correctly and filed with the Registrar of the Court of Appeal.
• The Notice of Motion
A document called a Notice of Motion is what starts the appeal process. There is a filing fee of $15.00 for a Notice of Motion. You must include the document Notice of Intent to Exercise Language Right.
You have to file and personally serve the Notice of Motion on all other parties within 14 days of receiving a copy of the decision or order of the Residential Tenancies Commission, unless you get a time extension.
It is helpful for you to file an Affidavit in support of your motion when you file the Notice of Motion. However, it may be filed at a later time but before the hearing date. The Affidavit is a sworn document that sets out the important details and grounds of your case relating to the mistakes of law or jurisdiction that you believe the Commission made. You should attach any relevant exhibits to the affidavit, such as the order and the Reasons for Decision of the Commission, etc.
• Motion Brief
It is also helpful for you to file a written motion brief when you file your Notice of Motion. However, it may be filed and served at a later time, but before the hearing date. A motion brief is optional, but quite helpful to the court. The purpose of the motion brief is to assist the court in coming to an understanding of what your case is about. It is meant to be straightforward and to the point (remember it is called a brief).
In your written motion brief you are going to state what mistake you think the Residential Tenancies Commission made. It is helpful to the court if you then list the page in the hearing decision where the mistake was made. It is also helpful to have the hearing decisions of the Residential Tenancies Commission and the reasons of decision of the Director of the Residential Tenancies Branch (if appropriate) included in your brief.
For example, if the Residential Tenancies Commission was to say that a tenancy agreement must only be in writing and can never be oral, that is a mistake of law. One may argue that the Residential Tenancies Commission has misapplied or misinterpreted The Residential Tenancies Act. In your motion brief you would list the page of the hearing decision where the Commission made this mistake (i.e. Hearing Decision, page 10) and also list the section number of The Residential Tenancies Act that you think has been misapplied or misinterpreted. For example, s.1(1). In your brief you should include a photocopy of the relevant Statute (just the section you are quoting is enough) and include it as an appendix to the document.
Sometimes there may be other court cases that support your argument. If you use any other case to support anything you state in your motion brief, you should include a photocopy of the case and attach it as a separate appendix. In your motion brief you should list these Statutes and cases as a Table of Authorities. The Table of Authorities lists each Statute and case that you have used and also lists the Tab (appendix Number) under which it can be found in your brief.
It is highly recommended that a motion brief be organized and simple.
• Service Rules
Rules for the service of documents are found in the Court of Queen's Bench Rule 16.
Remember, the Notice of Motion, Affidavit and any other documentation must be served personally, and generally, cannot be mailed.
Can costs be awarded against me?
A judge in chambers may award costs to the respondent based on the Court of Appeal Tariff.
What happens if leave to appeal has been granted by a judge of the Court of Appeal?
If you are successful and leave (permission) is granted, you will be able to argue your case before a panel (3 Judges) of the Court of Appeal, at a later date.
There are certain documents that need to be prepared.
An order granting leave to appeal is usually prepared by the successful party/counsel and submitted to the Court for signing. The Court of Appeal staff cannot prepare the order. There is a filing fee of $10.00 for the order.
• 3 copies of the order granting leave must be filed and served.
What other documents do I need to prepare before my appeal is heard by a panel of 3 judges?
You must file and serve:
• A Notice of Appeal
• An appeal book (which should contain all relevant material to your appeal, including the Order and Hearing Decision of the Residential Tenancies Commission, the Order and Reasons of Decision of the Director of the Residential Tenancies Branch, if relevant, the Order granting leave to appeal and the Reasons of Decision of the Court of Appeal judge, as well as any affidavit(s) that you filed on the application for leave to appeal.
• A factum.
Rules regarding the filing and serving of the Notice of Appeal, appeal books, and factums can be found in the Court of Appeal Civil Rules. As well, more information on appeal books and factums can be found at General Information.
What happens in the courtroom at the appeal hearing?
Once the appeal books and factums are filed, a panel of three judges is assigned to hear the appeal. There are no witnesses or juries in the Court of Appeal. The Court of Appeal does not consider new evidence, except in very rare cases and with the permission of the Court of Appeal.
Before the appeal hearing the judges are entirely familiar with the appeal. They have reviewed the complete record of the Residential Tenancies Commission proceedings as contained in the appeal book, as well as the written argument of the appellant and the respondent as set out in their factums.
At the hearing, the judges hear arguments from the parties about the law and how it is to be applied to the evidence in the case as stated in the factums. The appellant proceeds first, then the respondent argues, and then the appellant has the right to reply. On appeal, the Residential Tenancies Commission also has a right to be heard, and may speak on the matter. The judges will often ask questions as the case is presented.
Sometimes the judges will give you their decision orally after you have argued. Other times the judges may “reserve” their decision. That means that they will take some time to think about the arguments and you will be advised when their written decision is ready for pick up from the Court of Appeal Registry office.
Should I represent myself before the Court of Appeal?
This information is intended to answer some of your questions but it is not intended to give you legal advice.
If you still have questions you should certainly contact a lawyer.
The Community Legal Education Association (CLEA) offers both a Law Phone-In and Lawyer Referral service. The Law Phone-In provides general legal information. To contact both services you can call 204-943-2305 or toll free 1-800-262-8800. For the Lawyer Referral service only you can call 204-943-3602.
For more information about appeals and the general appeal process before the Court of Appeal, please see Frequently Asked Questions.