Eastern Mainland Housing Authority v. Hadley, 2019 NSSM 190

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Eastern Mainland Housing Authority v. Hadley , 2019 NSSM 23 Date: 20190617 Claim: No. SCAT-488278 Registry: Antigonish Between: Eastern Mainland Housing Authority APPELLANT And Russell Hadley RESPONDENT Adjudicator: Raffi A. Balmanoukian, Adjudicator Heard: June 10, 2019, in Antigonish, Nova Scotia Counsel: Anne Scheid, for the Appellant Russell Hadley, not appearing Balmanoukian, Adjudicator: [ 1 ] This is an appeal from the Director, Residential Tenancies dismissing Eastern Mainland Housing Authority’s application to terminate Mr. Hadley’s tenancy.

The dismissal was for want of prosecution. That decision is dated May 15, 2019, which was also the hearing date. I will sometimes refer to Eastern Mainland Housing Authority as the “Landlord” or the “appellant” and to Mr. Hadley as the “Tenant” or the “respondent.” [ 2 ] According to the decision, neither party appeared at the appointed time and place of hearing. On appeal, Mr. Hadley did not appear either, although due service of the appeal was evidenced before me. [ 3 ] Ms. Scheid, for the appellant, told this Court that she had misdiarized the Director’s hearing time for 10:00 when in fact it was 8:30.

When she phoned in, she was advised that the matter had already been heard and decided. [ 4 ] The appellant sought to file another application with the Director, but was advised that it could not do so for the same subject- matter and would have to appeal. [ 5 ] At the outset, and before moving to the role of this Court in such circumstances, I would say that I agree with the Director that the appropriate action at the time and place of hearing was to dismiss the application for want of prosecution.

Indeed I can see of no other just disposition when neither party appears. [ 6 ] I would also agree with the Director that, having done so, it could not “reconvene” the hearing.

Having made a decision in which it was duly seized, the Director was then functus officio . [ 7 ] I would, however, disagree with the Director that the Landlord was precluded from filing another application to the Director on these facts, on the same subject-matter. [ 8 ] First, as will appear from these reasons, the alleged default by the Tenant was of a continuing nature (that is, there were alleged acts of default that continued after the original application date of April 24, 2019). [ 9 ] Second, and in my mind of more principled application, the matter was not res judicata . [ 10 ] The matter would have been res judicata and the parties precluded from “re-filing” with the Director had the matter been decided on the merits; it would not have been open to the parties to ask for a “mulligan” at the Director’s level because one party or the other didn’t like what came out of a full hearing.

That was not the case here. In my view, the Director (or administration, as the case may be) erred in advising the Landlord as it did, if in fact such was the counsel advanced.

[11] Having found itself unable to “re-file,” the Landlord appealed to this Court. [12] At the time of filing, I asked the Clerk to bring to the Landlord’s attention the recent decision of Adjudicator Young inMacIsaac v. McNeil, 2019 NSSM 15. That was done; the Landlord continued with its filing, and here we are. To that, I now turn. Role of this Court on Appeal [13] This appeal is pursuant to

Section 17C of the Residential Tenancies Act, RSNS 1989 c. 401 (the “RTA”), which reads: 17C

(1) Except as otherwise provided in this Act, any party to an order of the Director may appeal to the Small Claims Court.

(2) An appeal may be commenced by filing with the Small Claims Court, within ten days of the making of the order, a notice of appealin the form prescribed by regulations made pursuant to the Small Claims Court Act accompanied by the fee prescribed by regulationsmade pursuant to the Small Claims Court Act.

(3) The appellant shall serve each party to the order and the Director with the notice of appeal and the notice of hearing. (3A) Service of all documents may be by personal service or such other manner of service or substituted service permitted pursuant to theSmall Claims Court Act.

(4) The Small Claims Court shall conduct the hearing in respect of a matter for which a notice of appeal is filed.

(5) The Small Claims Court shall determine its own practice and procedure but shall give full opportunity for the parties to presentevidence and make submissions.

(6) The Small Claims Court may conduct a hearing orally, including by telephone.

(7) Evidence may be given before the Small Claims Court in any manner that the Small Claims Court considers appropriate and theSmall Claims Court is not bound by rules of law respecting evidence applicable to judicial proceedings.

(8) The evidence at a hearing shall not be recorded. [emphases added] [14] This

Section was considered by Wood, J. (as he then was) in McIntyre v. Omers Realty, 2012 NSSC 35. Needless to say, thatdecision is binding upon me. At Para. 9, he said: The Small Claims Court hears the appeal and must give the parties full opportunity to present evidence and make submissions (see s-s.5). [15] He then went on, at para. 13, to differentiate an appeal from the Director to the Small Claims Court from an appeal from theSmall Claims Court to the Supreme Court.

The latter is confined to issues of jurisdiction, errors of law, or denial of natural justice (RTASection 17E). [16] Likewise, the recent decision of Justice Arnold in Luke v. Chopra, 2019 NSSC 145 is also binding upon me. His Lordshiprecounted the requirement of this Court to “give full opportunity for the parties to present evidence and make submissions” (para. 2) andat para. 3 stated: [3] In this case the adjudicator appears to have proceeded under s. 17D(1)(

b) and made an “order that the Director could havemade.” From the limited record provided to this court, it appears that the hearing in Small Claims Court was conducted as a trial de novo,which is within the adjudicator’s power under s. 17C. The Court of Appeal said, in Patriquin v. Killam Properties Inc, 2014 NSCA 114: In Mr. Patriquin's case, the Small Claims Court heard what ss. 17C and 17D of the Residential Tenancies Act describe as an "appeal"from the Director.

The Adjudicator conducted a hearing de novo, and had the authority, under s. 17D(1)(a), to "confirm, vary or rescind"the Director's ruling of November 17, 2010 that Killam should maintain the driveway. Killam's appeal to the Adjudicator was not areference, or a delegated function, by the Director to the Small Claims Court. The statutory appeal was a new "proceeding" before theSmall Claims Court. This meant that, in the Supreme Court, Justice Duncan heard an appeal from "proceedings before the [SmallClaims] Court" within s. 32(1) of the Small Claims Court Act.

Consequently, s. 32(6) applies and bars a further appeal to the Court ofAppeal. [ emphases added] [17] To similar effect, in MacDonald v. DeMont, 2001 NSCA 61, Freeman J.A. for the Court stated in conclusion: It was acknowledged on the appeal that the Residential Tenancies Board heard evidence that was not before the Director.

Its reasonsshould have established at least that a hearing de novo was held, if such was the case, rather than forcing appeal courts to the lameconclusion that the contrary was not proven: that is, to the inference that the Board on the evidence before it arrived independently at thesame conclusion as the Director. Justice Saunders was presented with the bare minimum by way of a decision by the Board butnevertheless reached a reasoned conclusion that the evidence presented to the Board did not justify it in varying or rescinding theDirector’s result. This does not raise a question of law or jurisdiction.

There is nothing in the record before us which suggests error onthe part of Justice Saunders, whose judgment I would endorse. 14) I would also endorse the closing reminder of Huband, J.A. in Shams v. Wiebe (supra): I would, however, recommend (if it is not already the practice) that when the decision of a Residential Tenancies Officer [our Director,represented by a Hearing Officer] is appealed, the notice of appeal should clearly indicate that the hearing before the Commission is an

entirely new hearing where the parties must tender the evidence which they rely upon and that failure to appear and provide the evidenceis likely to be fatal to their case. 15) I would add that a Board hearing an appeal from a Director’s order should, as a minimum, include in its record for the courtreasons establishing that a hearing de novo has been held and an independent adjudication made of issues raised before the Director, thatevidence was received from which specified findings of fact were made or, in the alternative, that no evidence was presented whichwould support findings of relevant facts. [emphases added] [18] Freeman, J.A. also dovetailed this analysis with

Section 1A of the RTA, which is worth remembering as more than a“motherhood statement:” 1A The purpose of this Act is to provide landlords and tenants with an efficient and cost-effective means for settling disputes. [19] The “Board” referred to by the Court in MacDonald has now been replaced by this Court as the channel of appeal. This is adifference in forum, not substance: Opus 3 Investments Ltd. v.

Schnare, 2009 NSSM 12 at para. 43. [20] I also note that in Opus, Adjudicator Barnett found at para. 33 that an appeal to this Court “requires a hearing de novo” andowes no deference to findings by the Director. [21] A fortiori, this Court cannot owe deference when there were no findings by the Director. [22] Lastly, I refer to Justice Haliburton’s decision in B.D. v. C.J. and J.V., (NSSC) in which he stated that underSection 17C of the RTA, the Board (now this Court) was obliged, in fact, to hold a hearing, and to hear the whole matter anew.

The Board is obliged to reach its own conclusions based uponthe material and evidence presented at that hearing. It is not bound by any conclusions reached by the Director. [23] I therefore conclude that this Court on appeal must, not may, hear evidence and submissions from the parties who appear inaccordance with

Section 17C, and give those parties “full opportunity” to do so. However, the procedure by which the Court does so iswithin its discretion (judicially exercised), and the scope of remedies within the Court’s jurisdiction is “any order the Director couldhave made” (Section 17D(1)(b)). [24] This is not to say that a party may simply bypass the Director, or not appear for whatever reason (bona fide or otherwise) andthen come to this Court for a remedy. That would render the Director’s position a nullity and delay or frustrate both the purpose of theAct (Section 1A) and at least one if not more aggrieved parties.

It is certainly within the discretion of the Court to dismiss an appealwhen there was no participation at first instance, as did Adjudicator Young in MacIsaac, supra. [25] Indeed, I reiterate that I do not think the Director had any other just disposition available to her and if the facts warrant, adismissal of the appeal by way of confirming the order of the Director is one of the possible dispositions of that appeal (17D(1)(a)). Thiscould, for example, be an appropriate case where the parties did not appear or participate for reasons that were not bona fide.

For thepurposes of this case, I need not elaborate on examples of where this may arise. [26] In this case, the evidence is that the failure by the Landlord to appear was a clerical or administrative error; and that this isbefore me as an appeal rather than a new filing at the Director level due to advice – which I consider in error – that a new filing was notavailable to the Landlord. [27] There is no explanation of the failure by the Tenant to appear, then or now.

In assessing the evidence as a whole, and inproviding “full opportunity” to the parties to be heard, it is clear to me that there is a serious issue at hand and no juridical reason why Ishould not proceed de novo. I do so. Evidence of the Landlord [28] Ms. Scheid, as manager and agent of the Landlord, presented sworn evidence. I found it balanced and fair.

She did not, forexample, overstate the impact the Tenant had outside his apartment (the property is a 20 unit building) or the state of his rental payments(which are up to date and, with few if any exceptions, always have been through the Tenant’s long occupancy under a written month-to-month lease). She also did not exaggerate problems before the last couple years; in particular, she indicated there were few if anyproblems during the first period of Ms. Scheid’s managerial tenure which began seven years ago.

Incidents of note began in 2015 andreached a breaking point in the last year. [29] The Notice of Appeal states that: Mr. Hadley poses a risk to the safety and health to himself, tenants in the same building & landlord by: constant falls with injuries,refuses medical care, smoker, often intoxicated, burning things on stove, so fire dept. is called. The unit is in a [sic] unhealthy, un-cleanstate, rotting garbage, fly invest [sic]. Blood everywhere, Mr.

Hadley is not willing to clean or get help. [30] I take these to be allegations of non-compliance with certain of the Statutory Conditions mandated under Section 9(1) of theRTA. In particular, condition 3 (good behavior and non-interference with fellow tenants), and 4 (ordinary cleanliness). [31] To be fair to the Tenant, the subject is not a non-smoking building and I only consider the smoking issue insofar as it poses asafety risk. [32] To be blunt, the verbal evidence (from Ms.

Scheid’s own personal knowledge) and photographs and records tendered inevidence bear out violations of the noted statutory conditions, and egregiously so. In deference to the requirement for reasons set out in

MacDonald , supra , I will summarize in a cursory fashion. [ 33 ] Exhibit 1 is a compilation of photos and documents. It comprises - Record of fire department responses (there is no direct evidence that these are of the Tenant’s origin, except as corroborated by testimony) - Photos of the subject unit, including of the Tenant himself, and of a very unkempt premises.

There are scorch marks by the range, a photo of a frying pan which apparently had been aflame, and a photo which purported to be where the Tenant had been on the carpet for an extended period of time, unconscious and bleeding. - A “fall and injury report,” prepared by Ms. Scheid from her own observations - Reports of the state of the apartment including debris, decomposing food, clouds of flies, and the like. [ 34 ] I need not run through these in minute detail. Upon authentication, they are beyond dispute as to any reasonable

interpretation of “ordinary cleanliness.” The resultant noise (from various falls), odour, flies, etc. has been established to be a nuisance and violation of the statutory conditions to and indeed beyond the required civil standard of proof. [ 35 ] So what of a remedy? There is no question Mr. Hadley has challenges; he also appears to have little or no support network aside from Ms. Scheid’s understanding that some family or friends will come by “when things aren’t so bad.” He has been in the same place for many years.

He is a senior. [ 36 ] I am reminded of the sentiments expressed by Chief Adjudicator Giles in Ramsay v. Cap Reit , 2005 NSSM 5 , in the financial context: [23] There can be little doubt of the Appellant’s bona fides . He is a victim of difficult circumstances not of his own making. His evidence in support of his appeal was forthright and sincere. He is a person entitled to a “break” if only there was a statutory or common law basis for one. [24] The Respondent, too is entitled to its rights. It is entitled to a tenant who is going to pay the rent due, on time, every time.

It has extended compromises and accommodations to the Appellant in the past. It cannot be expected to forbear indefinitely given the Appellant’s past financial problems and apparent general financial needs. [ 37 ] In this case, of course, there is no evidence from the Tenant at all, as to bona fides or otherwise, or the etiology of his circumstances.

I cite the above comment to illustrate that regardless of the circumstances in which a Tenant finds him-or-herself, the Landlord is entitled to compliance with the Tenant’s statutory, contractual, and common-law obligations. [ 38 ] This is particularly so where, as here, the Landlord appears to have attempted to address its legitimate concerns with the Tenant over an extended period of time. Whether or not the Tenant has “nowhere to go” is ultimately not the Landlord’s Cross to carry, notwithstanding this particular Landlord’s additional penumbra of public and social function.

Certainly, it is not something other tenants need to endure or a risk they need to bear. [ 39 ] Given the circumstances, the timing of this decision and the fact that the rent is not in arrears, and given the state of the unit (which will require full remediation whenever it is emptied), I order vacant possession no later than July 31, 2019. [ 40 ]

Section 17D(2) of the RTA allows me to allow the cost of filing fees (only). In my discretion, given the clerical error that resulted in the original dismissal, I decline to award these. I have no jurisdiction over any other costs. Conclusion [ 41 ] The Tenant is to deliver up vacant possession no later than July 31, 2019. His rent and other obligations remain unaffected in the interim. Balmanoukian, Adj.