Lenko v. Manitoba et al., 2016 MBCA 85

• Judge: Beard, Cameron and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 09, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 85;(2016), 330 Man.R.(2d) 292 (CA)

Lenko v. Man. (2016), 330 Man.R.(2d) 292 (CA);

      675 W.A.C. 292

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. SE.029

Gary D. Lenko (plaintiff/appellant) v. The Government of Manitoba, The Manitoba Housing and Renewal Corporation, The City of Winnipeg and The Canada Mortgage and Housing Corporation (defendants/respondents)

(AI 15-30-08397; AI 15-30-08407; 2016 MBCA 85)

Indexed As: Lenko v. Manitoba et al.

Manitoba Court of Appeal

Beard, Cameron and Pfuetzner, JJ.A.

September 9, 2016.

Summary:

Lenko applied for financial assistance under the Residential Rehabilitation Assistance Program (RRAP). RRAP was delivered under an agreement between the Canada Mortgage and Housing Corporation (CMHC) and the Manitoba Housing and Renewal Corporation (MHRC), which jointly funded the program. MHRC was responsible to evaluate and approve or dispose of applications, and it could enter into agreements to delegate the program's delivery and administration. When Lenko made his application, the City of Winnipeg (Winnipeg) was administering RRAP for properties in Winnipeg on behalf of MHRC. Thus, Winnipeg was responsible to receive the applications, meet the applicants, inspect the properties, determine whether to recommend the applications and send them to MHRC to make a decision on whether to approve them. Lenko sued the Government of Manitoba, the MHRC, Winnipeg and the CMHC. He sought damages for negligent misrepresentation arising from statements and misrepresentations allegedly made by a Winnipeg inspector in the context of his RRAP application. The defendants applied for summary judgment.

The Manitoba Court of Queen's Bench granted summary judgment dismissing Lenko's claim for damages for negligent misrepresentation. Lenko appealed.

The Manitoba Court of Appeal, in a decision reported at (2016), 330 Man.R.(2d) 48; 675 W.A.C. 48, allowed Lenko's appeal of the summary judgment dismissing his negligent misrepresentation claim against Winnipeg. The court dismissed Lenko's appeal of the summary judgment dismissing his negligent misrepresentation claim against Manitoba, MHRC and CMHC. The court awarded costs accordingly. Lenko applied for a rehearing of his appeal pursuant to rule 46.2 of the Manitoba Court of Appeal Rules. No certificate of decision had been entered.

The Manitoba Court of Appeal dismissed the application.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - Negligent misrepresentation - [See Practice - Topic 5702 ].

Practice - Topic 3064

Applications and motions - General - Disposition - [See Practice - Topic 5702 ].

Practice - Topic 5701

Judgments and orders - Summary judgments - General - [See Practice - Topic 5702 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Lenko applied for financial assistance under the Residential Rehabilitation Assistance Program (RRAP) - RRAP was delivered under an agreement between the Canada Mortgage and Housing Corporation (CMHC) and the Manitoba Housing and Renewal Corporation (MHRC), which jointly funded the program - MHRC was responsible to evaluate and approve or dispose of applications, and it could enter into agreements to delegate the program's delivery and administration - When Lenko made his application, the City of Winnipeg was administering RRAP for properties in Winnipeg on behalf of MHRC - Thus, Winnipeg was responsible to receive the applications, meet the applicants, inspect the properties, determine whether to recommend the applications and send them to MHRC to make a decision on whether to approve them - Lenko sued the Government of Manitoba, the MHRC, Winnipeg and the CMHC - He sought damages for negligent misrepresentation arising from statements and misrepresentations allegedly made by a Winnipeg inspector in the context of his RRAP application - The defendants applied for summary judgment - A motion judge granted summary judgment dismissing Lenko's claim for damages for negligent misrepresentation - Lenko appealed - The Court of Appeal allowed Lenko's appeal regarding Winnipeg - The court dismissed the appeal respecting Manitoba, MHRC and CMHC - Lenko's amended statement of claim and his affidavit evidence confirmed that there was no contact between Lenko and CMHC, MHRC or Manitoba - It was the inspector who had contact with Lenko - The inspector did not: (a) report to CMHC or MHRC; (b) take directions from CMHC or MHRC; and (c) have any contact with CMHC or MHRC - The motion judge found that "As stated by Winnipeg, if any defendant is responsible to Mr. Lenko it would have to be Winnipeg. Mr. Lenko applied to Winnipeg for a loan. The responsibility to approve or deny his application was Winnipeg's" - The court held that the motion judge did not misdirect himself in granting summary judgment dismissing Lenko's claim against these defendants for the inspector's negligent misstatements, nor was his decision so clearly wrong as to amount to an injustice - Lenko applied for a rehearing of the appeal - The Manitoba Court of Appeal dismissed the application for this extraordinary remedy - The Court of Appeal held, inter alia, that the motion judge did not err in not deciding motions that were outstanding in the Court of Queen's Bench once he had determined that the claim for negligent misrepresentation should be dismissed against all defendants - There would have been no purpose - It would have been a waste of judicial resources to have done otherwise - See paragraphs 16 to 19.

Practice - Topic 8888

Appeals - Leave to appeal - Re-hearing application - [See Practice - Topic 5702 ].

Practice - Topic 9010

Appeals - Restrictions on argument on appeal - General - The Manitoba Court of Appeal stated that it "was not required to address matters that will have no practical effect." - See paragraph 20.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - The Manitoba Court of Appeal refused to admit new evidence where: (1) the evidence was not new in the sense that the information had already been disclosed in an affidavit that had been affirmed prior to the hearing of the motion; and (2) it did not meet the criterion that it could not, with due diligence, have been produced for the motion - See paragraphs 10 to 14.

Counsel:

G.D. Lenko, on his own behalf;

A.J. Ladyka, for the respondents, Government of Manitoba and Manitoba Housing and Renewal Corp.;

J.D. Hall, for the respondent, City of Winnipeg;

W.M. Onchulenko and M.S. Pollock-Kohn, for the respondent, Canada Mortgage and Housing Corp.

This application was heard on September 9, 2016, by Beard, Cameron and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. The court delivered the following decision on September 9, 2016.