New Brunswick Housing Corporation v Cheyenne Steeves, 2024 NBKB 9

Citation: New Brunswick Housing Corporation v Cheyenne Steeves , 2024 NBKB 9 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MM-255-2023 BETWEEN: NEW BRUNSWICK HOUSING CORPORATION, a body corporate APPLICANT, -and- CHEYENNE STEEVES RESPONDENT DECISION BEFORE: Justice Maya Hamou

AT: Moncton, New Brunswick DATE OF HEARING: January 9, 2024 DATE OF DECISION: January 11, 2024 APPEARANCES: Virginia Gillmore, counsel on behalf of the New Brunswick Housing Corporation, a body corporate Cheyenne Steeves, not in attendance Introduction 1 . This matter concerns a request for an Order for Possession by a landlord following the landlord termination of the Lease Agreement.

It also addresses the exclusion of the Residential Tenancies Act , SNB 1975, c R-10.2 , the effective date of the Order for Possession under the Landlord and Tenant Act , RSNB 1973, c L-1 and the amounts recoverable for unpaid rent, double rent, costs, disbursements, and fees. facts Parties 2 . The Applicant, New Brunswick Housing Corporation (“NB Housing”), brings this application seeking an Order for Possession under

Part III of the Landlord and Tenant Act , against the Respondent, Cheyenne Steeves. 3 . Ms. Steeves did not appear at the hearing and did not submit any evidence. 4 . The evidence before the Court was submitted by Affidavit of Gillian Johnson, NB Housing Program Officer, sworn October 23, 2023. Factual Background 5 . Ms. Steeves signed a Lease Agreement with NB Housing on May 17, 2018, for the rental of a premise located at 83 Lewis Street in Moncton, New Brunswick (“Premise”). The Lease Agreement provided for a term commencing on June 1, 2018, until June 30, 2018, and subsequently on a month-to-month basis. Ms.

Steeves paid NB Housing a monthly sum of $302 as rent on the first day of the month. The monthly rent payment was reviewable on a yearly basis depending on the Tenant’s income and family status. 6 . In May of 2023, NB Housing performed a home inspection of the Premise. A few days later, NB Housing sent Ms. Steeves a letter outlining issues uncovered during the inspection and requesting the issues be addressed by June 12, 2023.

The issues included the replacement of a smoke detector, clearing out of the stairs leading to the basement, removal of the bed in the basement, removal of the string of lights in the basement and bedroom, decluttering of the basement and decluttering the bedroom to allow the door to open. 7 . On May 30, 2023, Ms. Steeves was served with a Notice to Quit providing 30 days to vacate the Premise in accordance with

section 19(

a) of the Lease Agreement. The Lease Agreement did not require NB Housing to provide reasons for terminating the tenancy. However, NB Housing provided information on its reasons for terminating the Lease Agreement. Ms. Steeves was asked to vacate the Premise based on rent arrears and a failure to comply with requirements for the Annual Rent Review. 19(

a) The Lessor and Lessee agree that either party may at any time terminate this Lease at the expiration of the month subsequent to the month in which the notice is given by giving notice in writing to the other. 8 . In parallel with the terms of the Lease Agreement, subsection 19(

b) of the Landlord and Tenant Act provides authority for the termination of a tenancy with one month notice. 19 ( 1 ) Subject to any express agreement to the contrary, sufficient notice to quit shall be deemed to have been given if there is given,

[…] (

b) in the case of a monthly tenancy, a month’s notice ending with the month, […] 9 . Despite the issuance of the Notice to Quit, NB Housing entered into a Payment Agreement with Ms. Steeves on June 2, 2023. Ms. Steeves agreed to pay an additional $25 per month towards arrears. A few days later, NB Housing advised Ms. Steeves the eviction date would be placed on a hold for a period of 6 months. The letter addressed to Ms. Steeves further noted that the failure to adhere to the Payment Agreement would result in a Demand for Possession requiring Ms. Steeves to vacate the Premise. 10 .

On June 3, 2023, following observations by NB Housing staff around the Premise, Ms. Steeves was advised to cease permitting third-party transactions to take place at the Premise. Following the Payment Agreement, Ms. Steeves only made one rent payment of $310 a few days late in July of 2023. By 2023, Ms. Steeves’ rent had increased to $336 per month. 11 . NB Housing served Ms. Steeves with a Demand for Possession in accordance with subsection 61(1) of the Landlord and Tenant Act on August 30, 2023, requiring her to vacate the Premise by September 30, 2023. Demand for possession 61 ( 1 ) Where a tenant (

a) fails to pay his rent within seven days of the time agreed on, (

b) holds over premises after the expiration or determination of a term, or (

c) gives notice of his intention to quit the premises by him holden at a time mentioned in such notice and does not accordingly deliver up the possession thereof at the time mentioned in the notice, the landlord of the tenant may cause to be served upon the tenant a demand for possession of the premises and may join in the demand a claim for payment of any rent and double value to which the landlord is entitled. 12 . On this same date, Ms. Steeves made a payment of $350 after receiving the Demand for Possession. No further payments were made. 13 . The evidence before the Court is that Ms.

Steeves continues to reside at the Premises and has refused to return possession of the Premise to NB Housing. Position of the Parties 14 . NB Housing relied on

section 19(

a) of the Lease Agreement to terminate the tenancy without cause with one month notice. 15 . NB Housing seeks an Order for Possession of the Premises and requires authorization for the Sheriff of the County of Westmorland to enter and take possession of the Premise and turn the Premise over to NB Housing. 16 . NB Housing also seeks to recover from Ms. Steeves the outstanding rent and double value for the months of October 2023, November 2023, December 2023, and January 2024 representing the period of overholding by Ms. Steeves. 17 .

NB Housing seeks the payment of fees associated with the service of the Notice to Quit and the Demand for Possession, fees associated with the service of the Notice of Application and Affidavit and costs, expenses and expenditures, including legal fees in accordance with subsection 68(2) of the Landlord and Tenant Act and the Costs and Fees Regulation – Landlord and Tenant Act , NB Reg 85-1 . ISSUES 18 . Does the Residential Tenancies Act , SNB 17975, c R-10.2 apply to this matter? 19 . Can NB Housing obtain and Order for Possession? 20 . Can NB Housing recover for unpaid rent and double rent? 21 .

Can NB Housing recover for services fees, costs, expenses, and expenditures pursuant to the Landlord and Tenant Act and the Costs and Fees Regulation – Landlord and Tenant Act ? In addition, can NB Housing recover costs of the Application pursuant to the Rules of Court of New Brunswick ?

analysis Exclusion from the Residential Tenancies Act 22 . The provisions of the Residential Tenancies Act , exclude from its operation premises developed and financed under the National Housing Act (Canada) by operation of subsection 29.1(2) of the Residential Tenancies Act. 29.1

(2) This Act does not apply where the tenancy relates to premises developed and financed under the National Housing Act (Canada) and administered by or for the Government of Canada, the Province of New Brunswick, the New Brunswick Housing Corporation or a local government, or any agency of any of them. 23 . The Premise in question in this matter was developed and financed under the National Housing Act and is administered by the Province of New Brunswick. Thus, the Residential Tenancies Act is excluded from application in the current matter. Order for Possession of Premise 24 .

NB Housing issued a Notice to Quit the premise and a Demand for Possession of the Premise. Ms. Steeves has refused to comply since September 30, 2023. Under the circumstances, the Court is satisfied that NB Housing was entitled to terminate the Lease Agreement with Ms. Steeves, entitled to issue a Notice to Quit and entitled to issue a Demand for Possession. Ms. Steeves has been overholding since September 30, 2023. 25 . On the evidence before me, based on the authority conferred by

section 66 of the Landlord and Tenant Act , I am satisfied that NB Housing is entitled to an Order for Possession with respect to the premises located at 83 Lewis Street, Moncton, New Brunswick. 66 On the return of the summons the Judge shall hear the evidence adduced on behalf of the landlord and the tenant and if the landlord establishes that he is entitled to possession shall issue an Order for Possession that may follow the form prescribed by regulation with such changes, additions or omissions as the facts of the case may require. 26 . In the absence of Ms.

Steeves providing evidence with respect to her personal circumstances and in the absence of NB House providing evidence of prejudice in delaying the issuance of the Order for Possession, the Court uses its discretion, considering the winter months, to render an Order for Possession effective January 31, 2024. Unpaid Rent and Double Rent Value 27 . NB Housing is entitled to recover unpaid rent from Ms. Steeves from October 1, 2023, to January 30, 2024, based on

section 62 of the Landlord and Tenant Act . 62 Where a tenant (

a) fails to comply with a demand for possession pursuant to

section 61 , or (

b) in the case of a demand for possession in respect of non-payment of rent, fails to pay the arrears of rent in full together with all costs of the demand to which the landlord is entitled in accordance with the table of fees prescribed by regulation, the landlord of the tenant may commence in the Court

summary proceedings against the tenant for possession of the premises and for payment of any rent and double value to which the landlord is entitled. 28 . I am also satisfied that NB Housing is entitled to receive the “double rent” recoverable pursuant to

section 56 of the Landlord and Tenant Act . 56 In case a tenant or other person who is in possession of any land by, from or under or by collusion with such tenant wilfully holds over the land or any part thereof after the determination of the term, if notice in writing requiring delivery of the possession thereof is given by his landlord or the person to whom the remainder or reversion of such land belongs or his agent thereunto lawfully authorized, the tenant or other person so holding over shall, for and during the time he so holds over or keeps the person entitled out of possession, pay to such person or his assigns at the rate of double the yearly value of the land so detained for so long as the same is detained, to be recovered by action in any court of competent jurisdiction, against the recovering of which penalty there shall be no relief. 29 .

I am satisfied based on the evidence that the rent arrears were $2,218 as of October 1, 2023 (which includes the rent for October) in addition to rent for the months of November, December and January ($1,008). I am also satisfied the double rent portion for the months of October, November, December, and January represent an additional amount of $1,344. 30 . Thus, in accordance with subsection 68(1) of the Landlord and Tenant Act , the Order for Possession shall include arrears of $3,236 and double rent of $1,344. 68

(1) When an Order for Possession is granted the Judge shall calculate the rent in arrears, an amount for use and occupation for any part of a term for which rent is not then due and owing, and double value owing by the tenant at the time of the hearing in any case where the landlord is entitled to and claims for double value and shall set forth in the Order for Possession the amount of the rent, amount for use

and occupation and double value to be levied by the sheriff. Costs, Disbursements and Fees 31 . I am also satisfied NB Housing is entitled to recover costs pursuant to subsection 68(2) of the Landlord and Tenant Act and subsection 3(1) of the Costs and Fees Regulation – Landlord and Tenant Act as part of the Order for Possession. 68

(2) The Judge may award costs in accordance with the table of fees prescribed by regulation. […] 3

(1) The table of fees on

summary proceedings is prescribed as follows: (

a) on instructions, preparation and service of demand for possession..............$35.00 (

b) where the rent is five hundred dollars per month or less, on application by way of summons, including preparation of all affidavits, summons and order for possession and attendances on judge..............$50.00 (

c) where the rent is five hundred dollars per month or less, to counsel fee on hearing of summons, per half day..............$50.00 (

d) on preparation for hearing and brief - where more than two witnesses are necessarily called or if the case involves points of difficulty, such further amount as the judge may allow in his discretion on application (

e) on instructions to defend application and examining documents on behalf of a tenant..............$25.00 (

f) for clerk’s fees on filing order for possession and entering judgment..............$15.00 (

g) travel allowance for serving a demand or summons, at the rate of 22 cents per kilometre from the residence or office of the landlord or his agent to the place of service and return 32 . In its written submissions to the Court, NB Housing seeks the payment of fees associated with the service of the Notice to Quit and the Demand for Possession ($253.00) and fees associated with the service of the Notice of Application and Affidavit ($159.28).

Additionally, NB Housing seeks to recover costs, expenses and expenditures, including legal fees in the sum of $225 which include the following: Instruction, preparation and service of demand for possession $35.00 Preparation of all affidavits, summons, and order for possession and attendance on Judge $50.00 Counsel fee on hearing of summons, per half day $50.00 Clerk’s fees on filing order for possession and entering judgment $15.00 Clerk’s fees on filing of Notice of Application $75 33 . I conclude $150 are recoverable costs on a

summary proceeding pursuant to subsection 68(2) of the Landlord and Tenant Act and subsection 3(1) of the Costs and Fees Regulation – Landlord and Tenant Act (the first four items in the list). However, the fees sought for the filling a Notice of Application are not recoverable. The Costs and Fees Regulation – Landlord and Tenant Act only allows for recovery of $15 for the “clerk’s fees on filling order for possession and entering judgment” despite the actual cost of filling the Notice of Application which is $75. 34 .

I am unable to conclude NB Housing can recover service fees for the Notice to Quit, Demand for Possession, Application and Affidavit. The Landlord and Tenant Act and the Costs and Fees Regulation – Landlord and Tenant Act govern the issuance of costs on

summary proceedings . In addition, paragraph 3(1)(

g) and subsection 3(4) of the Costs and Fees Regulation – Landlord and Tenant Act , provide for compensation for travel allowances (by kilometer) for service of certain documents and allowable service costs. No such request was made in this case. 3

(1) The table of fees on

summary proceedings is prescribed as follows: […] (

g) travel allowance for serving a demand or summons, at the rate of 22 cents per kilometre from the residence or office of the landlord or his agent to the place of service and return

3(4) Where it appears that the document could reasonably have been served at considerably reduced expense by a different agent, the judge may disallow the travel allowance prescribed in paragraph (1)(g). 35 . Allowing for recovery of costs and disbursements under the Rules of Court in addition to the costs prescribed in the Landlord and Tenant Act and the Costs and Fees Regulation – Landlord and Tenant Act would allow for double recovery and would circumvent the intent of the legislator to provide a table of fees recoverable in

summary proceeding. disposition 36 . Therefore, in accordance with the Court’s authority pursuant to

section 66 of the Landlord and Tenant Act , the Order for Possession of the Premise at 83 Lewis Street is granted to NB Housing effective January 31, 2024 (see attached Order). 37 . In addition, NB Housing may recover $4,570 for arrears and double rent. Further, NB Housing may recover costs of $150 (see attached Order). DATED at Moncton, New Brunswick, this 11 th day of January 2024. ________________________________________ Justice Maya Hamou Court of King’s Bench of New Brunswick