XYZ Limited v. A.A., 2017 NSSM 79

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: XYZ Limited v. A.A., 2017 NSSM 79 BETWEEN: XYZ LIMITED Landlord/ Appellant -and – AA and BB Tenants/ Respondents LMN appeared for the Landlord. AA and BB appeared on their own behalf. 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. AMENDED DECISION ( 1 ) This is an appeal of the Decision and Order of Residential Tenancies Officer, Jason Warham, dated May 24, 2017.

The Landlord contests the contents of a Form Q, giving notice the tenancy was terminating on July 1, 2017 for reasons of domestic violence. Order Ancillary to the Decision ( 2 ) In light of the issues raised in this matter, I have ordered the file and its contents sealed from public access.

Unless otherwise ordered by a court of competent jurisdiction, the contents shall be made available only to the parties or their solicitors, officials of the court or the Nova Scotia Department of Justice in furtherance of their duties. ( 3 ) In addition, when posting this decision to the Courts of Nova Scotia website, all parties’ names and identifying information shall be redacted or modified to ensure the tenants’ respective privacy.

Procedural History ( 4 ) The matter was scheduled for hearing before Mr. Warham, who rescheduled the matter with the consent of the parties. The Landlord did not appear at that hearing. Mr. Warham dismissed the application. The Landlord appealed the matter to the Small Claims Court and, as noted above, the Landlord was represented by Mr. LMN at this hearing. The Facts ( 5 ) The facts are straightforward and not seriously in dispute. ( 6 ) The parties entered into a year-to-year lease dated March 10, 2017. The tenancy commenced on April 1, 2017. The rent payable was $1695 per month.

A security deposit of $847.50 was paid to the Landlord by the Tenants. ( 7 ) BB no longer lives in the premises. ( 8 ) On May 12, 2017, a Form Q - Tenant's Notice to Quit-Domestic Violence , Form Q was signed by AA and served on the Landlord on the same date along with a Certificate Confirming Grounds to Terminate Tenancy Due To Domestic Violence . The notice indicated the tenancy would be terminating on July 1, 2017. ( 9 ) The premises have been rented effective September 1, 2017. The landlord is seeking rent payable to the end of August 2017.

The Law ( 10 ) An application for termination of the tenancy due to domestic violence is governed by sections 10F to 10I of the Residential Tenancies Act .

Section 10F addresses the procedure for early termination for domestic violence reasons. Sections 10G and 10H prescribe the preparation of a Certificate Confirming Grounds to Terminate Tenancy Due to Domestic Violence by the Director of Victim Services. Pursuant to subsection 10I, the Director of Victim Services (or his/her delegate) is not compellable as a witness in a court or other proceedings to give evidence about information obtained for the purpose of

section 10H, or to produce any related document or thing. ( 11 ) Subsection 10F states as follows: Early termination for domestic violence reasons 10F

(1) Notwithstanding

Section 10, where a tenant in a year-to-year or fixed-term tenancy is a victim of domestic violence, the tenant may terminate the tenancy by giving the landlord (

a) one month’s notice to quit in the form prescribed by regulation; and (

b) a certificate issued by the Director of Victim Services confirming that one of the grounds to issue a certificate under subsection 10H(2) has been established, no later than 60 days after the date the certificate is issued.

(2) The landlord shall ensure that information in a certificate received from the tenant pursuant to subsection (1) is kept confidential.

(3) The landlord may apply to the Director of Residential Tenancies under

Section 13 for an order setting aside the notice to quit only on the ground that the notice to quit and the certificate were not properly given to the landlord as required by subsection (1).

(4) Where a tenancy is terminated pursuant to subsection (1), the tenancy is terminated for all the tenants in the same residential premises but, for greater certainty, the other tenants and the landlord may agree to enter a new landlord and tenant relationship. ( 12 )

Section 4I of the Residential Tenancies Regulations provides: Tenant's notice to quit for domestic violence under clause 10F(1)(

a) of Act 4I A notice to quit given by a tenant to a landlord under clause 10F(1)(

a) of the Act must be in Form Q Tenant's Notice to Quit— Domestic Violence. ( 13 ) An application to the Director of Residential Tenancies under

section 13 is described in subsection (1): Application to Director 13

(1) Where a person applies to the Director (

a) to determine a question arising under this Act; or (

b) alleging a breach of a lease or a contravention of this Act, and, not more than one year after the termination of the lease, files with the Director an application in the form prescribed by regulation, together with the fee prescribed by regulation, the Director is the exclusive authority, at first instance, to investigate and endeavour to mediate a settlement. ( 14 ) Both parties acknowledge the application and service requirements of the legislation have been met. The original Notice to Quit was signed and delivered on May 12, 2017, the same date the Certificate was signed and delivered.

At this juncture, it is sufficient to state that service has been affected on the landlord on May 12, 2017 for vacant possession on July 1, 2017. The landlord seeks rent for July and August 2017. That request is denied for the following reasons. Legal Analysis Early Termination Sections 10B to 10F ( 15 )

Section 10 of the Residential Tenancies Act provides the procedures for tenants and landlords to respectively terminate the tenancy or give notice to quit. Sections 10B to 10F prescribe specific situations when tenants may seek earlier termination of the tenancy and the criteria to meet them. These include income reduction, health reasons, acceptance into a nursing home or home for special care, death of a tenant or domestic violence. ( 16 ) Sections 10B to 10E were added to the legislation in

Section 10F relating to domestic violence was added more recently than the others. It received Royal Assent on December 6, 2012 and was proclaimed in force on September 16, 2013. I am unable to find any cases before the Small Claims Court or the Supreme Court of Nova Scotia where the

section has been considered or applied. Related Sections ( 17 ) I am not aware of the other sections receiving consideration, other than

section 10C which has received considerable judicial consideration. This deals with early termination for health reasons. ( 18 )

Section 10C requires the Notice to Quit be accompanied by a certificate from a medical practitioner confirming the tenant “ has suffered a significant deterioration in health that, in the opinion of a medical practitioner, results in the inability of the tenant to continue the lease or where the residential premises are rendered inaccessible to the tenant”.

( 19 ) Adjudicator Eric Slone provided an excellent review of the issues to consider under that

section in the case of GNF Investments Ltd. v. Rossell, 2015 NSSM 54 , he states as follows in paragraphs 21-22: 21. In my view, this balance is achieved by allowing the Landlord to raise the question: what deterioration in health have you suffered, and how are you unable to continue the tenancy, or how is my premises no longer accessible to you? These elementary questions may (and should) be asked immediately upon the landlord learning that the tenant intends to invoke s.10C, and may be renewed at the hearing before the Residential Tenancy Officer or the Small Claims Court.

And these questions should be answered with enough information that would potentially satisfy a reasonable third party. Of course, there are privacy considerations, but when a tenant is potentially asking a landlord to incur significant financial costs associated with the tenant’s deteriorated health, a reasonable amount of information must be provided. 22. In my respectful view, the legislature did not intend that the physician’s certificate would be a full and final answer to the question.

While it was intended that the certificate carry weight, it was not intended that it be an impenetrable wall behind which no one could go . That

interpretation would amount to a wholesale delegation of authority to the physician and a total derogation of authority from the Residential Tenancy Officer and this Court. I find that this was not the intention. (underlining/bold mine) ( 20 ) This decision was applied by the Supreme Court of Nova Scotia in GNF Investments v. Vriend , 2016 NSSC 116 . Domestic Violence Sections ( 21 ) The sections to be considered for a finding of domestic violence are worded quite differently than those used in the

section addressing health reasons. The sections are designed to recognize the circumstances of one facing violent or abusive relationships. It provides a review by an independent party, namely the Director of Victim Services, based on the record of matters which have already been judicially considered. A more fulsome analysis will illustrate this point. ( 22 ) When a notice to quit (Form

Q) is served on a landlord, it must be accompanied by a certificate signed by the Director of Victim Services prescribed under s. 10H. The Director prepares the certificate only after determining if (

a) an emergency protection order has been issued under s.11 of the Domestic Violence Intervention Act; or pursuant to s.10H(2)(b): (

i) a domestic violence complaint has been filed with a police agency identifying the tenant as the victim, (ii) a peace bond or other order of a court has been issued that contains a condition that the person who is alleged to have committed the domestic violence have no contact with the tenant, and the peace bond or other court order is currently in force, and (iii) after having completed an assessment, the Director of Victim Services has reason to believe the tenant is a victim of domestic violence for the purpose of the peace bond or order referred to in subclause (ii). ( 23 ) Pursuant to subsection (3) the Director has authority to request information from a police agency respecting a domestic violence complaint, and the police must provide the information. ( 24 ) The Director is an employee of the Nova Scotia Department of Justice.

He or she is an official independent of the parties, who is privy to the court orders or peace bonds. These are matters where evidence has already been considered. These include an emergency protection order issued under s. 11 of the Domestic Violence Intervention Act , a peace bond which is in force that requires the person alleged to have committed the domestic violence to have no contact with the other, or a court order requiring similar “no contact”. The persons seeking the latter order and the peace bond must have also filed a complaint with the police.

Each of the orders necessarily requires a finding by a judge of the Provincial Court or other court of competent jurisdiction. A peace bond is issued under s. 810 of the Criminal Code and adjudicated before a Justice of the Peace or a Provincial Court judge before it is effective.

The Director’s decision based on this assessment is final (s. 10H(5)). ( 25 ) By having the review conducted by a government official based on matters judicially considered, the parties, the victim in particular, have their rights of privacy respected without having to disclose the details to their landlord or give evidence before a Tenancy Officer or before this Court. The victim is not forced to relive the experience several times over in an effort to end a financial obligation, particularly when he or she is seeking to move safely and discreetly beyond the violent relationship.

( 26 ) Since the factual findings have already been made, it follows there is no authority under the Residential Tenancies Act or the Small Claims Court Act which permits this court or the Director of Residential Tenancies to have access to any records behind the decision of the Director of Victim Services. Indeed, the statute specifically prohibits it (s.10I). The Director of Victim Services may not be compelled to testify.

In this case, the Legislature intended to create an “impenetrable wall” and did so, at least as far as this Court, the Director of Residential Tenancies and the Landlord are concerned. ( 27 ) Accordingly, the only grounds upon which one may set aside the notice to quit is if the notice and certificate were not properly delivered, pursuant to s.10F(3).

Findings ( 28 ) When a Form Q and a Certificate under s.10H are issued, the Small Claims Court (and the Director of Residential Tenancies) are limited to the following inquiries for an application under s.13(1): - Were the Notice to Quit and Certificate properly given to the landlord as required by s. 10F(1)? - Are there any other outstanding issues arising from the tenancy not related to the Notice to Quit or rent paid? ( 29 ) This latter issue might concern unpaid rent for months passed or other violations of the lease and Act.

In this case, it concerns liability for June’s rent and the disposition of the security deposit. Notice/Certificate Properly Given ( 30 ) As noted above, the notice to quit was served on the landlord on May 12, 2017 for vacancy on July 1, 2017. The Certificate was issued on the same date the notice to quit was signed and served. To his credit, Mr. LMN acknowledged receiving the Notice and Certificate on that date. As a result, I find the notice to quit was properly given to the landlord. ( 31 ) Furthermore, there are no other grounds upon which this court may set aside a notice to quit for domestic violence.

Again, to his credit, Mr. LMN was quite concerned to ensure the tenants’ privacy was respected. It appears to me this application was brought as the result of a misunderstanding of the Act on the part of the Landlord. ( 32 ) The tenancy for both tenants shall end on July 1, 2017. This portion of the appeal must be dismissed. Outstanding Issues – Rent for June 2017/Security Deposit ( 33 ) In evidence, AA testified to paying the Landlord $850 representing AA’s half of the rent for June 2017. The landlord seeks the other half of the rent and an NSF charge, presumably for the original rent cheque.

The landlord continues to hold the security deposit of $847.50. The parties’ rent owing for June was $1695. ( 34 ) I order the damage deposit payable to the landlord in full and final payment of all rent and late charges including the NSF fee. I recognize this means AA’s portion of the security deposit has been used to pay BB’s liability under the lease. A lease is a joint and several obligation. The payment of this obligation and other financial matters should be left to the parties to resolve between them as part of the financial issues arising from terminating the relationship.

In my opinion, it would not be appropriate to burden the landlord with this additional responsibility. Conclusion ( 35 ) In

summary, the appeal is dismissed and AA may vacate the premises on or before July 1, 2017, at which point the tenancy shall be at an end. The landlord shall retain the security deposit. This shall be a full and final discharge of the tenants’ obligations respecting rent and NSF charges. Each party shall bear their own costs of this appeal.

Dated at Halifax, NS, on July 11, 2017. ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)