Bray v. Denny, 2018 NSSM 50

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Bray v. Denny , 2018 NSSM 50 SCC SN No.469005 BETWEEN: KEVIN BRAY APPELANT/LANDLORD and VANCE DENNY RESPONDENT/TENANT 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. REASONS FOR DECISION BEFORE : A. Robert Sampson, Q.C., Adjudicator DATE OF HEARING : Hearing held at Sydney, Nova Scotia on January 17 th and February 28 th , 2018 DECISION RENDERED : May 22, 2018 APPEARANCES: For the Appellant: Self-Represented For the Respondent: Self-Represented

SUMMARY OF APPEAL/RESPONSE 1 . This matter before the Court arises from a Notice of Appeal filed on the 4 th day of October 2017, requesting a review of a decision/order of the Director of Residential Tenancies (Nova Scotia) pursuant to

section 17(

c) of the Residential Tenancies Act (NS) and the Small Claims Court Act (NS). The Appellant states in his Notice of Appeal his reason as follows: “not notified of hearing”. The matter was set down to be heard in Small Claims Court on January 18 th , 2018. 2 . This Appeal arises from an order of the Director of Residential Tenancies issued on September 27 th , 2017, identified as file # 201703340 and endorsed by the Clerk of the Small Claims Court dated October 5 th , 2017. The Director’s order was reviewed as part of the Court file materials. It was presented in a standard form and set forth the following in part:

Summary of Issues

A) i) Tenant seeking return of security deposit in amount of $487.50; ii) Tenant seeking reimbursement of September 2017 rent in amount of $1075.00; Reasons for Decision

B) i) Found there was no Standard Form Lease agreement signed, therefore deemed terms of tenancy as per Section 8(1)(5) of Residential Tenancies Act were monthly; ii) Found that the Landlord, Kevin Bray, was properly served but did not attend; iii) Found that Tenant provided notice on August 23 rd , 2017 that he would be vacating premises on August 31 st , 2017, had paid September rent in the amount of $1075.00 for purposes of providing one month notice however Landlord had taken back possession of the unit and Tenant wants the rent paid returned in amount of $1075.00. iv) Tenant provided pictures of unit confirming its condition upon vacating and found to be in excellent condition and requests security deposit paid in amount of $487.50 returned;

v) Residential Tenancies Officer orders security deposit to be returned and further accepts Tenant’s request for September rent to be returned, finding that Notice to Quit was provided and rent paid to end of August 2017. Further found that Tenant was not provided copy of Residential Tenancies Act which would have outlined the rules and obligations of the Tenant with respect to Notice to Quit periods pursuant to Section 7(1)(3),9(a)(b). ORDER

C) i) Landlord pay to the Tenant sum of $1562.50 (representing the return of security deposit and September rent) 3 . The Court took time to introduce the parties to the Court process, how documents would be introduced, the manner in which evidence would be given, the opportunity for each to question the other or any witnesses on the evidence provided to the Court and, at the end, an opportunity by each to provide their

summary of the evidence to support their respective positions. In light of the fact that both parties were self-represented, as is the practice of this Court, both parties were placed under oath at the outset and advised that anything they said during the process would be considered information or statements given under oath. Finally, the Court acknowledged having reviewed the Director’s order from which this Appeal was advanced.

SUMMARY OF APPELLANT’S EVIDENCE 4 . The Appellant, Kevin Bray provided his direct evidence under oath. As to the principal stated ground for appeal regarding notice, he testified that he had not been served with Notice of the original Residential Tenancies Board hearing and for that reason had not attended. Much debate turned on this issue during the hearing which I will comment on later in this decision. Suffice to say, the Appellant was firm in his position that he had not been served. 5 .

The Appellant confirmed that he owned and operated a residential apartment rental business and owned a number of units throughout the city. He described the rental premises subject to this hearing as being a relatively new constructed duplex (8-9 years old) situate at [address removed], Sydney. There were two units in the home and the Respondent occupied the second floor. He confirmed the Respondent became a tenant in January 2013. 6 .

The Appellant stated that he considered himself a very fussy/particular landlord regarding his properties and always ensured that he keep matters in order and maintain detailed accounts as it related to matters between him and his tenants. He testified that he generally communicated with the Respondent by text message and recalled receiving a text message from the Respondent on August 24, 2017 advising that he was moving out by the end of the month (August) as he had found a new place closer to his work. The Appellant further confirmed that he advised him (by text) that he had to pay one month’s rent.

He confirmed that the rent was normally paid by email transfer and acknowledged having received rent in the amount of $1075.00 by September 1 st , 2017 for the month of September. He considered this as rent in lieu of notice which he believed he was entitled to receive.

7 . The Appellant stated that he had no recollection of ever receiving any security deposit from the Respondent and had no records to verify the same. He further stated that his usual practice was to have a written lease in place and provide a tenant with a copy of the Residential Tenancies Act but confirmed that while he believed that would have been his practice he did not have any evidence of there being a formal written lease in place between he and the Tenant nor any specific recollection of having provided a copy of the Act to the tenant at the commencement of his tenancy. 8 .

The Appellant acknowledged having taken occupancy of the unit sometime in early September to ready the unit for advertisement for new tenant. He proceeded to tender to the Court 40 different photographs (Exhibit 1-C), mainly of the inside of the premises, for purposes of identifying what he believed to have been damage to the unit left by the Respondent.

He reviewed each of the photos which mainly identified a number of drywall filler marks evidencing repairs to the walls which he stated were caused by nail holes and some related to curtain rods that appear to have been placed over window headers and others possibly made by a TV mount. He stated that the holes were so plentiful (suggested upwards of 75 nail holes) that he ended up having to paint nearly the entire apartment unit. 9 . The Appellant also referenced other concerns such as a residue on the walls in the kitchen area which he believed had been caused by something that may have burned on the stove.

He also referenced the main lock set on the door leading into unit and fact that the original one had been replaced and the door drilled. He also noted a dent in the one-piece tub that had existed in the unit that he believed was caused by the Respondent. He noted damage to a shelf, kitchen cupboard scratched and the fact that a TV dish was left attached to the outside deck, the oven was not cleaned, to note a few. He believed all of the aforesaid damage was caused by the Tenant which would nullify any reason to have to return any security deposit that may have been paid. 10 .

Finally, the Appellant described a situation where, at the request of the Respondent, in July 2016 he had installed a heat pump mainly for air conditioning purposes with the agreement that the Tenant would pay an extra $100 per month on his rent which he noted was to be for a period of 36 months to repay the costs of the unit. Note: At or near this point it was quite late and therefore it was necessary for the Court to adjourn the hearing. A new hearing date of February 28 th was identified.

SUMMARY OF RESPONDENT’S EVIDENCE 11 . Upon resumption of the hearing the parties were reminded and acknowledged that they remained under oath. The Respondent gave evidence. He confirmed that he is employed with Micmac Family Services and that he began his tenancy in the unit at [address removed] in January 2013. It was clear that he was extremely frustrated over the Appellant’s evidence to the Court and his stated reason for Appeal that he had not been served notice of the original Residential Tenancies hearing which took place back in September.

In addition to his testimony, he tendered two documents (Exhibit 2 - excerpt of text messages on September 7, 2017 and Exhibit 3 - copy of Respondent cell phone record for September 7, 2017) in support of his evidence that the Appellant had in fact been served personally by the Respondent with the original notice hearing and failed to appear. Further details on this point will be provided later in this

summary. 12 . His evidence was that on August 23 rd , 2017, he spoke with the Appellant and provided notice that he was moving out and this was intended to be what he believed he owed the Landlord - 30 days’ notice. He testified that the Landlord requested the September rent. He initially thought the rent would be pro-rated but confirmed he had called the Residential Tenancy Board toll free number and had been advised that he would owe the September rent. He testified on August 24 th he had email transferred to Deanna Bray the sum of $1075.00 which represented his September rent.

He further stated that on August 30 th he, together with several friends (Charlotte Young, Kylie Young, Pamela Basque and Robert Denny Jr., a certified drywall contractor), attended at the apartment unit for purposes of moving out and cleaning it. 13 . The Respondent testified that on August 31 st he contacted the Appellant to arrange for a walk-through so he could get his damage deposit returned. The Appellant advised he was working in St. Peter’s and indicated he would connect and

schedule a walk- through over the coming weekend. The Respondent confirmed he tried to contact the Appellant several times by phone and text message on September 2 nd , 4 th and again on September 5 th but there was no answer. He testified that on September 5 th he had blocked his phone number to test whether the Landlord may have been avoiding him. The call went through, was answered and as soon as he spoke, the person on the other end, whom he presumed was the Appellant, hung up.

Later, on September 5 th , after again trying to make contact by phone with the Appellant with no success, he contacted the Residential Tenancy Board toll free number in search of some advice as to what he should or could do to make contact and obtain his security deposit. He was advised to go to his apartment unit and take photographs evidencing its condition and to verify it was left in clean order. The Respondent requested to leave work and immediately

attended at his apartment unit to comply with the direction he had been given. 14 . Upon attending at his unit, he found there were several workers inside completing painting and other miscellaneous items. He testified that he inquired as to what they were doing in his apartment and was advised that the Landlord had directed them to attend and have the apartment “painted today”. The Respondent confirmed that he had taken several photos. Pictures were tendered showing photos of the apartment unit throughout with workmen present who appeared to be completing painting.

He testified he again called the Residential Tenancy Board toll free number and explained that he found workmen in the apartment unit completing work for the Landlord. He was advised that since the Landlord has re-entered the apartment and taken control he should also be entitled to his September rent back. He was directed to attend at the office of the Residential Tenancy Board in Sydney and complete the required forms.

He confirmed that after speaking with the Residential Tenancy representative, he sent a text to the Appellant to advise what he had done and to advise that the Appellant owed him both his security deposit and September rent. Later this same morning while at the Residential Tenancy office completing the forms with the assistance of one of the Residential Tenancy workers, the Landlord/Appellant phoned him and was quite upset and proceeded to list host of items in apartment that required repair such as oven cleaning, painting, scratched cupboard, to note a few. 15 .

The Respondent confirmed that later that day at approximately 4 o’clock he again attended the apartment unit to check and clean, if required, the oven but found that the lock had been changed and he could not access the apartment. 16 . The Respondent testified in response to several issues that the Appellant raised in his evidence as follows:

i) He states that the landlord was advised of the door lock repair which had occurred approximately year or more before September 2017. He confirmed that he had been locked out of his apartment and was required to hire a locksmith to assist him in gaining access which necessitated changing the door lock mechanism. ii) He states that several years ago he did have something burn on the stove but following such incident everything in kitchen affected by any smoke was totally cleaned. iii) Any nail holes had been repaired by him before he vacated the apartment. iv) He stated that the satellite dish on the veranda was there when he moved in.

v) He stated that he specifically recalls giving the Appellant the sum of $487.50 in cash at the beginning of his tenancy which represented 50% of the rent he was originally paying ($975.00). vi) He stated that he had not damaged the one-piece tub, nor had he scratched or damaged any cupboards or shelves and that upon vacating the apartment it had been fully cleaned and left in the same condition as when he first occupied it, subject to normal wear and tear. vii) He confirmed that he was never provided any written lease or copies of any Residential Tenancy Act during his tenancy. viii) He stated that he was a very good tenant, kept his apartment in good order, paid his rent on time and never caused any problem. ix) As for the installation of the heat pump he confirmed that he had requested this as it acted as both an air condition source and heat source.

He stated that he agreed to pay an additional $100 per month on his rent for a period of one year and that he had fulfilled that commitment. 17 . As previously noted, there was a great deal of evidence from the Respondent piecing together his steps taken in the early morning of September 7 th leading up to his personal service of the original hearing notice on the Appellant. He was initially advised by

text at approximately 8:04 by the tenant (Ms. Crane) in the downstairs unit of his former apartment, who had become a good friend, that Mr. Bray was at the unit. He confirmed a series of texts and phone calls he made shortly thereafter as he readied to attend at the apartment unit to personally serve the Appellant. One of the persons who he had exchanged contact with that morning as he set out to attempt to serve the Appellant was one of his co-workers, Ms. Williams.

She was present in court to assist the Respondent throughout and provided some brief evidence verifying that she had been in contact with the Respondent both before he actually served the Appellant and shortly after when he attended to their work place and confirmed that he had effected service on the Landlord. She also testified that she had been with the Respondent the day prior when he attempted to locate the Appellant to serve the formal notice on him.

The Respondent confirmed that he also called the police as he wanted them in attendance because he feared for what could happen as he knew from his previous call that Mr. Bray was upset with him going to the Residential Tenancy Board to file a complaint. As it turned out, he was able to effect service moments prior to the police attending. Upon service he testified that the Appellant simply said…”I will see you in small claims court”. 18 . The Respondent provided under Exhibit 4 a series of photos he had taken from his phone of the apartment the last day he attended.

The pictures are black and white and not particularly clear. It appears there are some drop cloths present (similar to some of the Appellant’s photos) as well as some white spots on the wall which suggested some drywall preparation, likely in anticipation of painting. In addition, the Respondent provided a copy of an ad on Kijiji, date stamped September 18 th , 2017 showing a picture of the apartment building at [address removed] and advertising a 2-bedroom unit for rent. It states…”well maintained”, “available immediately”, rent $1075.00. The Respondent testified that this was the unit he had occupied.

BY THE COURT 19 . Upon the Respondent completing his evidence, the Appellant was asked if he had any questions for the Respondent, he had none. Before concluding, the Court specifically asked the Appellant whether his evidence remained the same with regard to having not been served and whether it is a case of possibly not recalling or was he certain in his position that he was “not” served notice. He confirmed he was certain in his position. REASONS FOR DECISION 20 . The Court re-confirms its decision rendered from the bench at the conclusion of the evidence.

The Court re-confirms the decision of the Director as set forth in the Order of the Director dated September 27 th , 2017 as follows: That the Appellant, Kevin Bray pay to the Respondent, Vance Denny, the sum of $1562.50 effective immediately. The aforesaid amount represents the repayment of the security deposit in amount of $487.50 and repayment of the September 2017 rent paid in the amount of $1075.00. 21 . The Court’s reasons for decision are as follows.

Although the stated reasons for appeal indicate only that the Appellant had not been served notice of the original Residential Tenancies hearing which was held on September 26 th , 2017, the Court acknowledges the accepted practice that such appeals to the Small Claims Court arising from a decision rendered under the Residential Tenancies Act are dealt with in the form of a trial de novo . As such the reviewer is called upon to review the original decision “de novo” or from the beginning.

This calls for a review of the original decision, the facts upon which it was based and the reasoning for the determination made. To accomplish this the Court is called upon to essentially allow for a completely new hearing, albeit contained to the matters in the decision that are appealed from. It is a re-hearing of the facts. 22 . The original issues before the Director and those advanced by the Appellant through the evidence presented relate to two specific matters, namely:

i) Was a security deposit paid by the Respondent and if so is he entitled to its return? ii) Based on the evidence, in accordance with the Residential Tenancies Act , is the Respondent entitled to the return of the September rent paid to the Appellant. 23 . As it relates to the return of the security deposit the evidence of the Appellant was that he could not recall having received any amount of security deposit when the tenancy was initially entered into with the Respondent. The Appellant stressed to the Court that he considered himself very organized and maintained his business practices to a high standard. With that said, the Appellant testified that

while he believed that he had entered into a signed lease with the Respondent, he confirmed that he was unable to locate any document to verify any type of lease agreement. 24 . In contrast, the Respondent specifically recalls having paid a security deposit in the sum of $487.50 by way of cash to the Appellant upon finalizing his arrangement to occupy the apartment unit back in January 2013. He noted that this amount represented 50% of his original monthly rent in amount of $975.00.

His evidence further noted that by agreement in 2016, he agreed to pay an additional $100.00 per month for a period of one year in return for the heat pump having been installed in the apartment unit in 2016. 25 . The evidence of the parties as to whether there was specific and extraordinary damage, beyond reasonable wear and tear, is in direct conflict. Unfortunately, I find many of the photographs provided are less than clear insofar as identifying the damage.

As previously noted, a number of the photos appear to have been taken after the Respondent vacated the unit and when workers were present completing the painting. I reasonably assume, as in many cases after a unit is occupied (as in this case for 3 years) some re- painting would be expected from normal wear, tear and use. One would further anticipate in carrying out this work some gyprock filler would be required and that appears to likely have been the case from reviewing several of the photos. 26 .

As for the alleged damage to other parts of the apartment, I accept the evidence of the Respondent that the items complained of by the Appellant were either present when he moved in or he was prevented from addressing any other repairs that may have been required. I note the satellite dish on the outside deck as an example of this when the evidence of the Respondent was simply that it was not his nor installed or used by him. 27 .

I also find that if in fact there may have been some repairs required, clearly it was only the Respondent who took any initiative to repeatedly ask the Landlord to complete a walk through with him so he could obtain his security deposit back and had this occurred and any damage pointed out it would have afforded the Tenant/Respondent the opportunity to complete any repairs. An example of this is when the Respondent learned from the Landlord that he felt the oven had not been cleaned and the Respondent attended at the Unit to address this issue but found himself locked out of the unit. 28 .

Therefore, as to the issue of the return of the security deposit I find that the amount of $487.50 had been paid and the Respondent is entitled for it to be returned. 29 . As for the second issue pertaining to the return of the September rent, I find there to be no dispute of the fact that the Respondent had paid this amount at the request of the Landlord/Appellant as a form of rent in lieu of providing one months’ notice.

However, I also find, based on the evidence, that clearly there does not appear to have been any written lease entered into nor was a copy of the Residential Tenancies Act provided to the tenant. Therefore, as stated by the Director in his finding, the Residential Tenancies Act specifically addresses the entitlement to provide Notice to Quit in any case where no lease or copy of the Act is provided. Section 7(1) (3) (

a) provides an immediate out by simply providing notice of intention to vacate on a specific date within a period of three months. I find from the evidence of the Respondent, which is not disputed by the Appellant, that specific notice was provided on August 24 th that he intended to vacate by August 31 st and he did in fact vacate on that date. Therefore, having regard to the fact that there was neither a lease nor a copy of the Act provided, the tenancy came to an end on August 31 st , 2017 and thereafter the Landlord/Appellant took occupancy of the Unit.

The Respondent is entitled to his return of the September rent he had paid in the amount of $1075.00. 30 . The Order of the Director is hereby confirmed. DATED at Sydney, Nova Scotia this 22 nd day of May 2018. ______________________________ A. ROBERT SAMPSON, Q.C. Adjudicator