Rafuse v. Ayaz, 2023 NSSC 321

SUPREME COURT OF Nova Scotia Citation: Rafuse v. Ayaz , 2023 NSSC 321 Date: 20230920 Docket: No. 518496 Registry: Bridgewater Between: Petcharat Rafuse Appellant v. Usman Ayaz and Qudsia Javed Respondents Judge: The Honourable Justice Diane Rowe Heard: March 26, 2023, in Bridgewater, Nova Scotia Oral Decision: September 20, 2023 Counsel: Matthew Fancey, for the Appellant Usman Ayaz and Qudsia Javed, Self Represented By the Court, orally: Overview [ 1 ] This is an appeal of a decision of Adjudicator Eric Slone, made on September 16, 2022, by Ms. Rafuse as against Mr. Ayaz and Ms. Javed. [ 2 ] Ms.

Rafuse is a landlord, and is appealing the Adjudicator’s decision concerning a residential tenancy made by the Director of Residential Tenancies, dated July 12. 2022. It proceeded as an appeal de novo by Ms. Rafuse before the Small Claims Court Adjudicator, Mr. Slone. As has been remarked upon in other matters, the scope of a de novo hearing would include all the issues between the parties, to be brought before the Adjudicator.

This differs from the course of the appellate review of the Adjudicator’s decision, which is before the Nova Scotia Supreme Court in this proceeding. [ 3 ] Adjudicator Slone found on the appeal de novo that there were ongoing water quality issues in the course of the tenancy. While the tenancy had terminated, making that aspect of the appeal hearing moot, the Adjudicator did consider the claims of both Ms. Rafuse, as landlord, and Mr. Ayaz and Ms.

Javed, in the context of claims for unpaid rent, rental deposit, and he proceeded to offset claims as between the parties on the basis of an abatement in rent that was then owing. [ 4 ] I will note that at the hearing before the Adjudicator, the appellant was a self represented person, while the respondents had retained legal counsel. At this appeal before me, the appellant is represented by counsel, while Mr. Ayaz has been appearing on behalf of himself and Ms. Javed, without counsel. [ 5 ] The appellants appeal from Adjudicator Slone’s decision, on the following grounds: 1.

The adjudicator erred by failing to follow Rule 51.03 of the Civil Procedure Rules in restricting the appellants’ rights to object to evidence offered by the respondents. Evidence which would have been excluded by objection from the appellants was then used to base the written reasons for decision and order. 2. The adjudicator erred in law by making the following evidentiary decisions: a. Allowing hearsay evidence by the respondents but not allowing hearsay evidence by the appellants. b.

Restricted the appellants’ opportunity to file multimedia evidence over email but allowing the respondents to file multimedia evidence over email. c. Allowing the respondents’ legal counsel to pursue a line of questioning regarding the expert credentials of one of the appellants in relation to water testing despite objections from the appellants.

d. Restricting the appellants’ right to call witnesses to give evidence. e. Did not give proper consideration to evidence by the appellants which was supported by an expert authority. f. Incorrectly considered evidence of actions taken by the respondents which contravene the governing legislative authority. g. Reaching a damage award based on an unsupported speculation provided by the respondents’ witness. 3. The appellants were officially induced by court staff to discontinue their application to remove the adjudicator based on concerns ofconflict due to fears of delay or prejudice to their case. 4.

The adjudicator failed to follow natural justice which demands that relevant evidence in possession of the appellants be admissibleeven if it was obtained after the filing deadline for evidence. 5. And any other grounds of appeal which the appellants may discover during the preparation of written submissions for this appeal afterreceiving the adjudicator’s

summary report. [6] A request was made to adduce the Affidavit of Ms. Rafuse in support of these various heads of appeal. I indicated in thehearing that I would make a determination on the admissibility of this additional evidence in the decision made on the appeal. [7] The Respondents dispute all of the grounds of appeal, pointing to the record, the

summary and the decision as beingreasonable and in keeping with natural justice. Standard of Review [8] The Small Claims Court Act, RSNS 1989, c. 450 provides an appeal as of right to the Nova Scotia Supreme Court, with section32(1) setting out the available grounds of appeal: 32

(1) A party to proceedings before the Court may appeal to the Supreme Court from an order or determination of an adjudicator on theground of (

a) jurisdictional error; (

b) error of law; or (

c) failure to follow the requirements of natural justice, by filing with the prothonotary of the Supreme Court a notice of appeal. [9] In regard to the affidavit of Ms. Rafuse, which it was submitted was key to the ground concerning the failure to follow naturaljustice, set out with particularity in the application, I was directed to Justice Arnold’s observation at paragraph 14 of Luke v. Chopra,2019 NSSC 145: [14] Justice McDougall considered the admission of fresh evidence on a Small Claims Court appeal in Patriquin v. KillamProperties Inc, 2011 NSSC 338 , 2011 N.S.J. No. 502.

He stated: [6] With regard to affidavit evidence, clearly, the Small Claims Court Act appeal provisions do not provide for thesubmission of any new evidence. The appeal is not a hearing de novo. It is a hearing based on the record. By record, I mean thecontents of the Small Claims Court file which is requested and provided to our court when a notice of appeal is filed. The entirerecord, including any exhibits filed in the hearing before the Small Claims Court, are all included in that file and they are all opento review by this Court. In addition to that, the adjudicator is requested to provide a

summary report of findings of law and factmade on the case on appeal. So, in addition to the decision or order of the adjudicator, the

summary report is also provided tothis court and is used in determining the merits of the appeal. [7] As Justice Beveridge indicated in his decision of Lacombe v. Sutherland, … there are occasions when additionalaffidavit evidence may be admitted. Again, I use the word “may” because it is a discretionary thing. It depends on theparticular judge who hears the appeal. A request has to be made to that particular judge to adduce freshevidence. If it is evidence that would help to establish a jurisdictional error or a breach of natural justice therequest might be found to have merit.

Any additional type of affidavit evidence would only be admitted if trulyexceptional circumstances exist. [8] The Small Claims Court Act and its Regulations do not contemplate an appeal by way of trial de novo. It is based on therecord. This is not a carte blanche refusal to admit additional evidence but it would only be in very rare and exceptional

circumstances that further affidavit evidence would be admitted. There are good policy reasons for this. If affidavits were routinely accepted the appeal would soon morph into a trial de novo . It would be tantamount to an appeal based on a transcript. The Small Claims Court is not required to record the evidence. There is no transcript. To allow affidavit evidence to be filed on appeal to the Supreme Court would add unnecessarily to the expense of the proceeding.

It would also defeat the principle purpose for the Small Claims Court which is to provide an inexpensive and informal venue for people to present cases without the need to incur the expense of legal representation [Emphasis added] [ 10 ] The admission of fresh evidence on an appeal is unusual. I wish to underscore this in the context of this appeal, as I reviewed Ms. Rafuse’s affidavit. Respectfully, I do not find that the affidavit discloses evidence that would help to establish a jurisdictional error or a breach of natural justice.

The information contained within it does not contain evidence which, if accepted by the Court on appeal, has a reasonable probability it would have affected the outcome of the hearing (as per R v Paris , as relied upon by the appellant). [ 11 ] The appeal appears to be an attempt to relitigate the matter, as it was heard by Adjudicator Slone. In finding that the motion to adduce fresh evidence by affidavit on the appeal does not rise to the level required for its admission, I note that there are attachments to Ms. Rafuse’s affidavit that appear to be composites of emails between the respondents counsel and Mr.

Slone, which might be misleading to the Court on an appeal, if admitted. Further, in reading the portions that were attached and were sent by Adjudicator Slone to the appellant, as they were leading into the hearing of the matter, I do not see any errors that would give rise to a breach of natural justice or jurisdictional error. There is organizational information given to Ms.

Rafuse, in plain language, by Adjudicator Slone in the email concerning how evidence, as opposed to argument, is received in a Small Claims court proceeding. [ 12 ] Further, the email attachments of the Affidavit as sent to Court staff, in support of the ground alleging bias on behalf of court administration and the Adjudicator as against Ms. Rafuse, are not indicative of a breach of natural justice. They, again, indicate that an informational exchange was occurring, and no more. There is no evidence of a personal or institutional bias against the appellant.

The affidavit evidence concerning the Adjudicator “not accepting evidence via email” mischaracterizes the content of the communication, which indicates that submitting undifferentiated items for the Court’s consideration was not appropriate (i.e. a Court is not under a duty to organize a litigant’s evidence) and advising that argument accompanying the documentation could not be received via email, as it is not the forum for the hearing.

This is correct. [ 13 ] If the Adjudicator had accepted any party’s argument via a series of emails outside of the hearing forum this would be a clear breach of natural justice, as it would fundamentally undermine the fairness of the process, intended to be held in open court. This is also the case in regard to an Adjudicator “organizing” the evidence a party seeks to enter into Court.

Ultimately, it is incumbent on the party to put their best foot forward in the forum, in accordance with the process outlined in the Small Claims Court Act , and Regulations , and the direction of the Adjudicator in relation to the Nova Scotia Civil Procedure Rules , as may be required for reference. [ 14 ] While the Court recognizes that the holding of a proceeding via Zoom is different than an in person hearing, it is not an inherently unfair method for a hearing to proceed via internet, absent technological or communication failures that undermine the process.

This was not the case with this hearing. [ 15 ] I find that the Rafuse Affidavit does not rise to the level required for the adducement of fresh evidence on appeal, and it is not admitted. [ 16 ] I also considered the comments of Justice Gogan in Connors v. Anderson McTague & Associates Ltd. , 2020 NSSC 405 at para 26 : There is no standard of review analysis engaged when considering a claim of denial of natural justice or procedural fairness. It is a question of law (see Wolfridge Farm Ltd. V. Bonang , 2016 NSCA 33 per Justice Bourgeois at para. 38).

The question on review is whether the process was fair (see CIBC Life Insurance Company v. Hupman , 2016 NSSC 120 , Hood, J. at para. 6). The adjudicator either fulfilled the duty or did not (see Waterman v.

Waterman , 2014 NSCA 110 , Beveridge, J.A. at para. 23). [ 17 ] The appellant submits that the Adjudicator failed to inform her that she could call a witness for cross examination, failed to provide a translator for her, failed to accept hearsay evidence tendered, and that he upheld objections or made rulings on the objections and manner of evidence being presented in the course of the hearing, as he determined the admissibility of the evidence. [ 18 ] While I do note the reference to Justice MacDougall’s comments in Brown v Newton, 2009 NSSC 388 , concerning the scope of an adjudicator’s duties to self represented parties includes an explanation of process to the participant, it does not extend to extending legal advice to a party on how to conduct their case, or to hold back on making a ruling on the admissibility of evidence in the course of a hearing when a valid objection is made.

Further, Adjudicator Slone held the hearing over the course of two appearances, which would have given the parties an opportunity to address the Court further or obtain information concerning procedure. [ 19 ] Adjudicator Slone indicates that his credibility findings were also informed by some challenges in communicating with the appellants, who he found to be difficult to follow and argumentative. This may have given rise to the impression of the appellants that he was biased in some manner, but it is within his scope to assess the credibility of the witnesses and weigh the evidence accordingly.

Further to that, the Court notes that he remarked upon not accepting all of the evidence of the Respondents, and noted that this was the basis for disallowing some of their claims as against Ms. Rafuse, specifically related to travel for a child with eczema. [ 20 ] As I move on then to considering the other grounds of appeal, I am mindful of Gallant v. Martin, 2010 NSSC 375 , concerning findings of fact and the high degree of deference afforded to Adjudicators on an appeal. Absent a palpable error, findings of fact are not overturned on an appeal.

[ 21 ] Further, Hoskins, J. stated in regard to the standard of review to be applied to an Adjudicator’s decision, at paragraph 30 of John Ross & Sons Limited v. Federal Express Canada Corporation , 2022 NSSC 336 that: [ 30 ] While there may be a divergence of opinion as to whether this Court should review Small Claims Court findings of fact for palpable and overriding error, it is clear, as Justice LeBlanc stated in C.M. MacNeil & Associates v. Toulon Development Corporation , 2016 NSSC 16 , at para. 37 , that this Court may find an error of law where there was no evidence to support the conclusions reached.

As Moir J. pointed out in Hoyeck , at para. 23, this would have to be apparent from the

summary. [ 22 ] I do not see in the

Summary Report or the Decision submitted by Adjudicator Slone that there was a palpable or overriding error in the findings of fact that were made or the conclusions that he reached in making his order. Adjudicator Slone notes that he accepted some hearsay by both parties, apparently on an application of the law concerning the principled admission of hearsay evidence and in keeping with the more relaxed approach in Small Claims Court.

He did accept the hearsay evidence of the water tests by Culligan Water as they were presented, but also the water tests of the public health authority. [ 23 ] The Adjudicator made credibility findings concerning each of the witnesses, and their evidence, accepting some as a result in regard to each witness and demonstrating discernment in what he did accept. [ 24 ] Further, as an additional related ground of appeal, is the submission that the reasons of Adjudicator Slone, particularly as they related to breach of the lease agreement, and the related order on the abatement and set off, are not fully reasoned and not clearly articulated. [ 25 ] The Court, in reading the decision, can see that the Adjudicator squarely located the breach of contract as the finding of fact that there was a failure of the landlord to provide water on a reliable basis to the tenant for their use or for drinking.

Water is an essential element of a contract, implicitly, to provide rental accommodation for people. It was concluded then, as a result of that breach, that the tenants were able to claim an abatement of rent, in proportions that were representative of the time in each year of the lease when the water condition was impaired to a degree.

This was a rough estimate by Adjudicator Slone, but each amount still represented less than 50% of the monthly rental in recognition of the variation in water quality, whether for use or consumption, while the other elements of the agreement for accommodation in a rental tenancy had occurred. [ 26 ] It was also noted by Adjudicator Slone that neither party had come to the court without some issues in relation to the rental agreement and breach. He acknowledged that he would not normally condone the non-payment of rent as a self help remedy by a tenant.

However, he also noted that the agreement was not in keeping with the minimum statutory conditions, as a damage deposit in excess of that allowable by statute was collected and held by the landlord. Neither party had entirely “clean hands”. It is implicit in the decision that the Adjudicator did rely upon the law in making his decision, although it was not canvassed point by point.

Conclusion [ 27 ] For the foregoing reasons, I would dismiss the appeal, and the decision and Order of Adjudicator Slone, made September 16, 2022, is upheld. [ 28 ] Costs are awarded to the Respondents in the amount of $50.00 pursuant to the regulations enacted under the Small Claims Court Act . Diane Rowe, J.