McHugh v. Mannette, 2021 NSSM 18

2021 Claim No. 505918 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: McHugh v. Mannette , 2021 NSSM 18 BETWEEN: CONNOR McHUGH and JESSICA ANDERSON Appellants/Landlords - and - JASON MANNETTE and KELLY BOULTON Respondents/Tenants ORDER and DECISION [ 1 ] This is an appeal of an Order of the Residential Tenancies Director dated April 23, 2021.

The hearing before me took place by Zoom Hearing on June 10 th . [ 2 ] For the following reasons I am dismissing the appeal and confirming the Decision of the Residential Tenancy Office of April 23, 2021. [ 3 ] The basic background of this case is that the Appellants purchased the property in question in a private sale. Presently they live on one side of the building and the Respondents live on the other side. It is a duplex in common parlance. There are two front doors, separate driveways, and entirely separate living residences on each side. There is a shared backyard.

There is no door between the two residences. [ 4 ] The Respondents have a lease, which the Appellants have inherited as the successors of the previous landlord. The Respondents pay their rent on time and are otherwise in good standing under the lease. [ 5 ] The Appellants want to occupy both sides of the building. [ 6 ] At the hearing before the Director, the Appellants apparently requested termination of the tenancy on the basis that their father and brother would be using the property as a place to stay on an occasional basis. As well, Ms.

Anderson stated that she would be using the property as a work from home space. These points raise the issue of potential application of Section 10(8) of the Residential Tenancies Act , RSNS 1989, c. 401 and the definition of the “family member” under

Section 2 (abc). I note here that unfortunately in the Decision of April 23 the definition of “family member” is not accurately reproduced. Ultimately, it does not change my conclusion but it should be noted for completeness. Section 10(8) reads: A landlord may give to the tenant notice to quit the residential premises where (

f) the Director is satisfied that it is appropriate to make an order under

Section 17A directing the landlord to be given possession at a time specified in the order, but not more than 12 months from the date of the order, where (

i) the landlord in good faith requires possession of the residential premises for the purpose of residence by himself or a member of his family.

Section 2 (abc) reads: Family member means in relation to an individual any of the following:

(

i) the individual spouse, (ii) a child of the individual or the individual spouse, (iii) a parent or legal guardian of the individual or the individual spouse. [ 7 ] Given the clear wording of the Act , the most relevant evidence in this matter is that the father and potentially the mother of Mr. McHugh who live in the New Ross area, Lunenburg County, occasionally come into town and would stay in that unit, particularly in the winter when the weather is inclement.

In the evidence it was stated that the Appellants usually go down to Lunenburg County to visit on weekends but if not then the parents will come up to the Dartmouth area. When I pressed on the issue I was told that it might be a couple times a month or there could be a month without them coming at all. [ 8 ] In my view, an occasional visit by a parent is not what is contemplated in Section 10(8) of the Act .

The wording is that the premises are requires for, “ the purpose of residence by… a member of his family .” In my view, for the purpose of residence does not contemplate an occasional usage which might not even happen for a month or more. Such an

interpretation to favour that fact scenario would undermine the intent of this provision. It is to be recognized that allowing a landlord to terminate a tenant’s tenancy for this reason is an exception to the general rule that the tenant has tenure under the current Residential Tenancies Act . [ 9 ] In my opinion, this evidence falls far short of what must be shown in order to trigger that exception. [ 10 ] I should also add that the evidence regarding the use by Ms. Anderson of the Tenants’ premises for her office was that she might move her office to that side.

I specifically asked and she said “maybe, but would probably leave as is for now.” [ 11 ] None of this evidence satisfies the statutory requirements in my view. Therefore the conclusion that must be reached is to dismiss the Landlords’ application and confirm the Decision of the Director dated April 23, 2021. ORDER [ 12 ] It is hereby ordered that the appeal herein is dismissed and the Decision of the Director dated April 23, 2021, is affirmed. DATED at Halifax, Nova Scotia, this 28th day of June, 2021. MICHAEL O ’HARA ADJUDICATOR