SEAN THIBODEAU APPELLANT – v. –, 2017 NSSM 70

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Thibodeau v. Peters, 2017 NSSM 70 Claim: SCAR No.494130 Registry: Annapolis Royal Between: SEAN THIBODEAU APPELLANT – and – TAJ PETERS RESPONDENT Adjudicator: Andrew S. Nickerson, Q.C. Heard: June 21, 2017 Decision: August 2 , 2017 Appearances: The Claimant, The Defendant, DECISION Facts This matter came before me by way of appeal from a residential tenancies officer dated June 21, 2017. This matter was heard by a tenancies officer on May 12, 2017. The tenant did not appear at that hearing.

The tenancies officer found that the tenant owed $2700 in rent, $201.10 for power, $97.19 for water, $31.15 filing fee and terminated the tenancy effective June 6, 2017. Before me the tenant stated that he did not owe rent and claimed that he had paid his rent biweekly in the amount of $300. He acknowledged that the most recent rent receipt he had was on January 17 for $300. He claimed that on April 7 he paid $340 in cash to Mrs. Peters directly at her home in Dartmouth and again on May 4, 2017 he paid $600 directly to the landlord. He had no receipt for these payments and claimed the reason was that Mrs.

Peters had no receipt book. He also produced an invoice for a refrigerator in the amount of $900 dated February 10, 2017 and an invoice for a washing machine dated March 1, 2017. He alleged that he should be given credit for rent for the purchase of these appliances because they were to be provided by the landlord and the old ones failed. He said that he approached Mrs. Peters with respect to the refrigerator and her response was that she would provide a refrigerator within three days but she was not prepared to do that until his rent was up-to-date.

He also says he called with respect to the washer and was told that the landlord was getting one but that the tenant had to pay his rent up-to-date. As to the power bill which was in fact invoiced to the building in which he resided he said that it was for the other side of the duplex and was not his account. He said he had the electricity changed to his name when he moved in and received bills and got his first bill for the period October 9 to December 8, 2016. He says the payment for water was not included in his lease and was added after he signed. Mrs. Helen Peters testified on behalf of the landlord.

She adamantly stated that she had not received any payment for rent in cash or otherwise from the tenant at her home in Dartmouth. She said that she was not present at her home on the dates that the tenant alleged he

attended to pay rent. She says the only time she was aware that the tenant may have been at her home was when the notice of this appeal was left on her doorstep. She said that she was called with respect to the refrigerator and told the tenant that she was going to get Sears to deliver one but made no comment concerning the rent. She received no call with respect to the washer. She said that the power bill was in fact for the tenant’s apartment. She says that the handwriting with respect to the water bill was in fact on the lease when it was signed.

Law and analysis I find that the provision of the refrigerator and the washer were in fact part of what was required of the landlord in this tenancy. However the way in which the tenant attempted to remedy this situation was not appropriate or lawful in my opinion. There are specific provisions in the Residential Tenancies Act to address the lack of the provision of a service. 17A An order made by the Director may (

a) require a landlord or tenant to comply with a lease or an obligation pursuant to this Act; (

b) require a landlord or tenant not to again breach a lease or an obligation pursuant to this Act; (

c) require the landlord or tenant to make any repair or take any action to remedy a breach, and require the landlord or tenant to pay any reasonable expenses associated with the repair or action; (

d) order compensation to be paid for any loss that has been suffered or will be suffered as a direct result of the breach; ……………… This

section makes it clear that the appropriate procedure would be to file a complaint with the director to have these matters remedied. It would be completely unmanageable for tenants to simply go out and purchase appliances as and when the tenant felt it was necessary. This would leave landlord’s without the option of having appliances repaired as opposed to buying new ones. I do not believe the law allows the kind of self-help which the tenant engaged in. I therefore am not prepared to hold that the amounts that he paid for these appliances can be considered the payment of rent.

As will be seen later in this decision I will be terminating this tenancy. The refrigerator and the washer were paid for by the tenant and therefore are his property. He may remove them when he vacates the premises. If he does not the landlord must follow the procedure laid out in the Residential Tenancies Act as follows: 5

(1) A landlord shall not hold or dispose of a tenant’s personal property except in accordance with an order made pursuant to

Section 17 or except as otherwise authorized by law.

(2) Nothing in subsection (1) entitles a tenant to leave personal property in the residential premises after the tenancy has terminated.

(3) Where a tenant leaves personal property in the residential premises after the tenancy has terminated or the tenant has abandoned the residential premises, the landlord shall do an inventory, to be filed with the Director, of the personal property and may at any time after sixty days dispose of the property in the manner determined by regulation and any revenue received from such property shall be paid first, towards rent owed, and second, for any storage costs or damages, with respect to the residential premises and any balance shall be turned over to the Public Trustee. I carefully observed both witnesses.

I must assess their credibility. The law is clear that although I am able to take something from their demeanour in approaching the witness box the overall test is whether their evidence is logically probable when assessed internally and in light of all of the evidence. When I do this I find that the tenant’s evidence lacks credibility. One does not require a receipt book in order to make a receipt. It can be written on the back of any piece of paper and it makes no logical sense that the tenant would not demand some form of written acknowledgement of his payment of rent.

Overall I had the impression that he would shade his evidence as he saw fit. On the other hand Mrs. Peters, who is an East Indian immigrant, did not clearly articulate in the English language, yet her meaning was clear, and overall I found her evidence to be reasonable and credible. I am satisfied that the electricity bill and the water bill in fact are due and payable by the tenant. Based on my findings to the tenant is severely in arrears of rent and the tenancy should be terminated. I will terminate the tenancy as of July 31, 2017.

Given that the tenant has remained in the premises he will be required to pay rent up to that date. I uphold the tenancy officer’s decision that the rent due up to May 31, 2017 is $2,700. To that I will add rent for the month of June and July at $600 each. The total rent due will be $3,900. In addition I will allow the items for water ($97.19), power ($201.10) and application fee ($31.15) as allowed by the tenancies officer. I order payment by the tenant to the landlord in the amount of $4,229.44.

The tenancy will be terminated as of July 31, 2017. I therefore dismiss the tenant’s appeal and modify the tenancy officer’s decision in accordance with my ruling in this decision. Dated at Yarmouth, Nova Scotia, this 2nd day of August, 2017. Andrew S. Nickerson Q.C., Adjudicator