Source: CanLII

Citation: Camara c. Ndiaye, 2012 MBCA 11
Date: 20120130 Docket: AI 11-30-07711

MANITOBA COURT OF APPEAL

B E T W E E N :

SOKONA CAMARA

(Plaintiff) (Respondent) Respondent

- and -

CAROLINE NDIAYE

(Respondent) (Appellant) Applicant

C. Ndiaye
appearing in person

S. Camara
appearing in person

Heard in chambers:
January 26, 2012

Decision pronounced:
January 30, 2012

MARC. M. MONNIN J.A.

1 The applicant seeks leave to appeal a decision of a judge of Court of Queen's Bench sitting as small claims appeal judge under The Court of King's Bench Small Claims Practices Act, C.C.S.M., c. C285 (the Act). The respondent was successful before the court officer and also the judge of the Court of Queen's Bench on appeal in a de novo trial. She obtained judgment the amount of $85,464 in her favour.

2 Section 15 of the Act permits an appeal with leave of a judge of this court, albeit only on a question of law. To obtain leave to appeal, the applicant must demonstrate:

• (a) that the question raised is a question of law alone;
• (b) the issue is one of sufficient importance to engage the attention of the court; and
• © they have an arguable case, that is, one which has a reasonable prospect of success.

See Roschuk v. Relf et al., 2011 MBCA 37, 268 Man.R. (2d) 18, and Penta Protective Coatings Ltd. v. Scott, 2006 MBCA 50.

3 The parties were roommates in an apartment in Saint Boniface. In his claim before the Court of Queen's Bench, Ms. Camara sought to be reimbursed for an amount that she claimed to have paid the landlord and which she sought from Ms. Ndiaye. The amounts were a portion of the rents paid, in particular from the months of August and October 2010, which the appeal judge concluded had not been paid by Ms. Ndiaye. Ms. Ndiaye argued that she had placed her payment in cash in a box placed by the landlord for this payment.

4 Ms. Ndiaye submits that the judge erred when they concluded that she had not paid this amount. She submitted that in other months the rent had been paid in cash before the landlord announced that they would not provide receipts for these payments and the tenants therefore began to pay by cheque.

5 In their decision, the appeal judge clearly indicated that they concluded that the evidence filed by the applicant were not evidence that the amounts had been paid, and that as a consequence, it had not been proven by the applicant that the amounts had been paid. An appeal which seeks a review of this conclusion is not an appeal solely on a question of law but rather a question of facts.

6 Therefore, the applicant has not satisfied the criteria that the court must consider to grant leave to appeal pursuant to section 15 of the Act. The application for leave to appeal is dismissed with costs in favour of the respondent.

__________________________________________ J.A.