Laurie v. Pink, 2018 NSSM 42

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Laurie v. Pink , 2018 NSSM 42 Claim No: SCCH 475609 BETWEEN: MICHAEL LAURIE Appellant/ Landlord -and – RONALD PINK, QC Respondent/ Tenant Allison Reid appeared for the Appellant. George MacDonald, QC appeared for the Respondent. Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed. DECISION ( 1 ) This is an appeal of a Decision and Order of the Director of Residential Tenancies rendered by Residential Tenancies Officer, Gerard Neal, dated April 11, 2018.

In his decision, Mr. Neal confirmed the portion of the Landlord’s claim as agreed between the parties. The Landlord’s claim for a shelving unit and two months’ rent was denied. The Landlord appeals alleging various errors. ( 2 ) An appeal from the decision of a Residential Tenancies Officer is a de novo hearing based on the evidence presented before the Small Claims Court Adjudicator. The evidence presented usually consists of that presented to the Residential Tenancies Officer (in whole or in part) and any additional evidence the parties seek to adduce.

It is not necessary to address the specific grounds of appeal in the course of this decision as the evidence and arguments are heard fresh by me.

Background ( 3 ) The parties entered into a fixed term lease of rental premises known as [address removed] in Halifax. The term ran from October 15, 2014 to April 30, 2017. Mr. Pink and his wife have vacated the premises. Mr. Laurie seeks compensation for damages, specifically the loss of a shelving unit and two months’ rent he claims he lost due to difficulty re-renting the premises. The rent payable under the lease was $4500 per month. A security deposit of $2250 was paid along with a $500 fee to hold the premises.

This latter payment, while not permitted under the Residential Tenancies Act (s. 6(1)), has not been objected to or even raised by the tenant or his solicitor. I shall not address that issue any further or consider it in my decision. ( 4 ) Additionally, at the hearings before the Residential Tenancies Officer and before this Court, the Tenant agreed to compensate the Landlord for the following: Granite Repairs: $1687.50 Electricity: $1196.51 Rosetta Removal: $ 550.00 Total $3434.01 ( 5 ) In the interests of brevity, I have described the remaining issues below. Additional Rent ( 6 ) Mr.

Laurie testified that he was unable to rent the condominium due to damages caused by the Pinks’ when they vacated the premises. He was seeking a more upscale clientele and therefore, it was necessary to have the premises repaired and restored to a condition suitable for showing it to prospective tenants. He submitted the Pinks had a rosette painted on the wall which had to be removed and the marble mantle was chipped and required restoration and repair. All of this took additional time before a tenant could be shown the premises.

The Landlord tendered into evidence invoices from his contractor including time limits to perform the repairs. Under cross examination, he acknowledged advising Mr. Pink by e-mail that he was not prepared to extend the term of the lease but rather he was attempting to sell the unit. It sold the following year. Mr. MacDonald submits that the unit was “unrentable.” ( 7 ) Mr. Pink testified there were no showings of the unit while he lived there. There was one scheduled prior to his departure but the prospective tenant did not show up.

He arranged for some repairs and cleaning to be made before he and his wife moved out. ( 8 )

Section 9 of the Residential Tenancies Act contains statutory conditions which form part of every lease. Statutory Condition 6 states as follows: 6. Abandonment and Termination - If the tenant abandons the premises or terminates the tenancy otherwise than in the manner permitted, the landlord shall mitigate any damages that may be caused by the abandonment or termination to the extent that a party to a contract is required by law to mitigate damages. ( 9 ) Several provisions of the Act require a departing tenant not to damage premises beyond ordinary wear and tear.

The expectation is for a landlord to mitigate his/her losses by effecting repairs in a timely manner and advertising the premises for rent. ( 10 ) I find the landlord did not mitigate his losses to an extent that justifies the payment of two months’ rent. There was only one showing scheduled during his tenancy, so there was no chance any tenant would have moved into the unit in May. The Landlord declined an opportunity to rent to the Pinks for a further period of time. ( 11 ) While there may have been a lost opportunity to rent the premises in May, I am satisfied Mr.

Laurie’s inaction and the market for that particular condominium also contributed to his failure to rent the condominium. There is no evidence whatsoever Mr. Laurie lost any rental income for June 2017 or that the condition of the unit hindered his ability to sell it. ( 12 ) I deny any recovery for lost rent.

TV Shelving Unit ( 13 ) Prior to the Pinks’ moving into the premises, the Landlord had a custom made dark wooden stand installed in his living room/library. There is a photograph taken of the unit while Mr. Laurie lived there. Mr. Pink claims the shelving unit was not there during his tenancy and the area it occupies was empty. In any event, he would not have wanted it in his home. Mr. Gerry Forrest is the parties’ preferred contractor.

He gave evidence that he does not recall seeing the stand in the condominium when the Pinks lived there. ( 14 ) Both parties testified that any furnishings not wanted by the Pinks were transported and stored by Munden’s Moving and Storage. Neither party called any evidence from Munden’s. ( 15 ) The evidence does not establish on the balance of probabilities the shelving unit was present in the premises when the Pinks were there. Therefore, I am unable to find they were responsible for its loss or damage. This portion of the claim is also dismissed.

Disposition ( 16 ) I dismiss the Landlord’s appeal and confirm the findings of the Director of Residential Tenancies Officer. The parties shall bear their own costs of the appeal.

Summary ( 17 ) The Landlord shall have judgment for the following: Damages by Agreement: $3434.01 Director’s Fee: $ 31.15 Less: Security Deposit ($2250.00) Total Judgment $1215.21 Dated at Halifax, NS, on July 30, 2018; ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Landlord(

s) Copy: Tenant(s)