McNeil v. Jellow, 2019 NSSM 75

2019 S.C.C. No. 485365 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: McNeil v. Jellow , 2019 NSSM 75 BETWEEN: Ann Cavell McNeil Appellant and Sharron Jellow and Darryl McNeil Respondent Residential Tenancies Appeal from Directors Order #201900039 DECISION BEFORE: A.

Robert Sampson, Q.C., Adjudicator DATE OF HEARING: Hearing held at Sydney, Nova Scotia on May 8 th and July 16 th , 2019 DECISION RENDERED: Decision and Order – July 23 rd , 2019 APPEARANCES: For the Appellant: Self-Represented – Ann Cavell McNeil For the Respondent: Self- Represented – Darryl McNeil Witnesses: Karen McNeil for Appellant DECISION BY THE COURT: 1 . This Appeal was commenced by a Notice of Appeal filed with the court on February 21, 2019 arising from an Order of the Director dated the 14 th day of February, 2019, acting under the Residential Tenancies Act , R.S.N.S., c. 401, s. 1.

The matter was originally scheduled to be heard on May 8, 2019. The Appellant as well as one of the Respondents, Mr. McNeil, appeared on that date. However, based on the representations of the Appellant, the court learned that while notice of the hearing was left at Ms. Jellow’s residence for her and there was an affidavit of personal service provided to the court, it appeared that she was not personally served as required by the Small Claims Court Act, R.S.N.S., c. 430, s. 1. The matter was adjourned by agreement to afford the Appellant the opportunity to effect personal service.

The court sent, by registered letter, a notice of new hearing date to each of the parties. The court file materials confirm that both Respondents signed off the Canada Post receipt accepting service of the new notice of hearing - confirming the new court date of July 16 th , 2019. 2 . At the outset the court reviewed the general procedure to be employed in hearing the appeal, the role of each party and how

evidence was to be received including the opportunity of both parties to provide their “side of the story”, that each would be afforded a chance to question the other and any witnesses, and further that at the end of the evidence each would be afforded a chance to sum up their positions based on all the evidence presented.

The parties, who were not represented by counsel, were placed under oath at the outset as is the practice of this court when dealing with self-represented parties and each were advised that any comments made by them at any time throughout the proceeding would be considered information given “under oath”. In addition, shortly after the hearing commenced, at the request of the court, the Appellant’s daughter, Ms. Karen McNeil, sat at the table with her mother in an effort to assist her in presenting her case. She too was sworn in. Background 3 .

The issues associated with this appeal arise from a decision of the Director and specifically the Residential Tenancy Officer who heard the initial application, Ms. Lianne Chang. The file materials from Residential Tenancies were provided to the court for review. It appeared to contain the original application dated December 3, 2018, signed by Cavell McNeil who identified herself as “Landlord”. The named Respondent/Tenant was both Sharon Jellow and Darryl McNeil. The address of the premises at issue was 291 Main St, Florence, Nova Scotia. 4 . As evidenced by the application originally filed by Ms.

McNeil, she sought two principal items of relief. The first was a payment for expenses associated with power bills (amount unknown), damages (value unknown), water account ($566.40) and property taxes ($1030.32). The second was seeking to terminate the tenancy and vacate possession. There were no written responses from the Respondents either in connection with the original application or this appeal. 5 .

The Order of the Director confirms the date of the application to be January 4 th , 2019 which conflicts with the date on the application found in the file but may represent the date upon which the application was formally filed with their office. I also note from the file materials provided that the photocopy of the application provided to me was not date stamped. In addition, the court file contained a one-page

summary dated January 3, 2019 of the general matters of complaint which was also signed by the Appellant, Ms. McNeil. The file material confirms that notice had been personally served upon Darryl McNeil on January 8 th , 2019. There had been no evidence of service upon the second named Respondent, Ms. Jellow, however the Officer’s decision confirms she was in attendance at the Residential Tenancy hearing along with Mr. McNeil and the Appellant. 6 . The Director’s Order sets forth the reason for the decision of the Officer who conducted the hearing and rendered the report.

As one would expect that decision would have been based on the information placed before the Officer at the time of the hearing. The report identifies the issues of complaint as set forth in the application. The Officer identified the fact that there was no “written” lease or anything that could support the nature of the relationship between the parties as it related to the premises situate at 291 Main Street, Florence, Nova Scotia.

The Order determined that the application had not been signed or dated, there was insufficient evidence as it related to the claim for expenses, there was a dispute about whether there was in fact a Landlord/Tenant relationship as the Respondent argued that the home was supposed to have been conveyed to him from his mother, the Appellant. Based on the foregoing, the Officer found that there was no Landlord and Tenant relationship and dismissed the application for want of jurisdiction. Analysis and Decision 7 . The Residential Tenancies Act sets forth under

section 17C the relative provisions for effecting an appeal from the Director’s Order. Based on those provisions it has become well accepted that the effect of an appeal to the Small Claims Court essentially triggers a right to a trial de novo which in essence is a new hearing before a different tribunal. That is how the court has approached this appeal. 8 . The Respondent, Mr. McNeil, advanced a preliminary issue stating that the initial court hearing had been adjourned for purposes of properly effecting personal service on one of the named Respondents, Ms. Jellow, and that had not been carried out.

In response to this the Appellant advised the court that she in turn had been told by someone from the court staff following the original adjournment that the court would be serving all parties of the re-scheduled date and that she need not worry. Therefore, no action was taken on her part to effect any type service on Ms. Jellow. On this point, as noted above, the court file does confirm that the court sent notice to all parties of the new court date and there appears to be Canada Post receipts signed by both Respondents acknowledging receipt of such notice. 9 .

As it pertains to “service” of any documents arising from an appeal carried out under

Section 17C of the Residential Tenancies Act the following sections are instructive:

(3) The Appellant shall serve each party to the order and the Director with the notice of appeal and the notice of hearing.

(4) Service of all documents may be by personal service or such other manner of service or substituted service permitted pursuant to the Small Claims Court Act . 10 . The Small Claims Court Act , section 21(3) speaks to service of documents as follows:

(3) Service of all documents may be by personal service or such other manner of service of substituted service as prescribed by the regulations. In addition, Section 3(3) of the Regulations reference service of documents as follows:

(3) Service of a Notice of Claim and a form for a Defence/Counterclaim shall be by personal service or such other manner of service as directed by the Court.

Section 3 replaced: O.I.C. 2000-169, N.S. Reg. 58/2000. 11 . Following the route of direction provided as it relates to “service” of any documents, notice etc., it would appear that direction ultimately comes from the provisions of the Regulations as noted above. With that, the court is directed to ensure that “personal service” is effected unless it directs otherwise.

Although an “Appeal” would not be considered an originating matter, having regard to the legislative set up as set forth in both the Residential Tenancies Act as well as the Small Claims Court Act , in effect it requires an Appellant to provide notice to the responding parties essentially in the same manner as the notice provisions for commencing a claim. I acknowledge that in the body of both Acts the wording states “may be by personal service”; however, ultimately one needs to read through to the Regulations as directed under the Act .

It is there that the discretionary aspect is removed and the court, through its Regulations, directs that service “shall” be by personal service unless otherwise directed by the court. 12 . As previously noted, this matter came before the court on May 8 th , 2019 and it was determined that proper service was not made upon one of the two named Respondents. Quite apart from whether Ms. Jellow is in fact a tenant, she has been named in the original application as well as this appeal. Therefore, she is entitled to notice and the right to be heard as a named party.

I further acknowledge that the brief evidence presented to the court at the initial hearing suggested Ms. Jellow may be attempting to avoid service, however no request was advanced to the court requesting any form of substituted service. The court further acknowledges that it appears she signed for the court’s letter advising of the new court date but did not appear. That notice did not substitute for her right to have been served with the original “notice of appeal” which forms the very basis of this matter now before the court in which she is a named party. 13 . The court agreed to hear evidence in Ms.

Jellow’s absence having regard to the fact that the matter has remained outstanding for some time. The court can say, based on the evidence it did receive and having regard to the definition of a Landlord and Tenant under the Residential Tenancies Act , that there appears to exist a form of Landlord –Tenant relationship as it relates to the occupancy of the premises situate at 291 Main Street, Florence, Nova Scotia.

The court further finds there would be sufficient evidence to support the fact that the essence of the arrangement, albeit between a mother and son, was that the tenants would be permitted to occupy the residence with the understanding that they pay for or contribute to the ongoing expenses such as property taxes, water, lights, cable, etc. However, similar to what the Residential Tenancies Officer experienced at the initial hearing, the Applicant (now Appellant Ms.

McNeil) struggled to provide the required proof by way of receipts and so forth to allow the court to make any decision as to what amount had been paid in this regard. The onus first rests with the Appellant in this regard and if the Respondent has evidence to the contrary then they too need to provide the best evidence supporting their position as can be provided. In today’s world most account payments are done by a cheque, debit or automatic withdrawal and there should be bank records available to support such payments in addition or in substitution of the actual receipts.

The court also wishes to note, again based on the evidence provided by the Appellant that she has not yet followed the required provisions of the Residential Tenancies Act insofar as providing the required notice to vacate the premises. I note the foregoing not to pre-judge any issues but simply to provide some sense of the court’s understanding of the evidence it had been provided as this may affect what further action the Appellant may choose to take. 14 . As the court had noted, while the file reveals an Application which appears signed and dated by Ms.

McNeil (Appellant), I am mindful as well of the Director’s comment in her decision wherein she notes, at that point in time, there was none. The Respondent pointed this fact out as well. Frankly, the evidence and documents in the court file are insufficient to allow the court to make any type determination on this point to contradict what the Reviewing Officer first concluded. The court suspects that the application was signed after the initial hearing and included in the subsequent notice documents sent to the Respondent associated with this appeal.

However, the decision of the Director concluded that she did not have the required jurisdiction to make any formal determination and I reasonably

suspect it was because there was not a proper application before her.

On this point, having regard to the fact that this appeal hearing is designed to allow the Applicant, in this case the Appellant, to have a “second kick at the can” so to speak, together with the fact that in the documents presented on this appeal they do include a signed/dated Application, both Respondents participated in the initial hearing from which this appeal arises and having regard to the over-riding principle of both relative legislations involved, I am satisfied that there is an application by a Landlord which requires addressing. 15 .

However, as noted above the court is sensitive to the fact that one of the Respondents has not yet been properly served with this appeal application in spite of having been made aware of the revised hearing date. The right of any “named party” to receive notice is fundamental to the ability of this court to review and make any determinations that may ultimately affect a named party. While the court has the discretion and ability to alter methods of service to achieve service, in this instance that has simply not been done or requested.

I find that the notice and the method of delivering notice for purposes of notifying the parties of revised hearing dates is routinely used and accepted practice by the court. However, what is not routine or acceptable, unless specifically ordered by the court, is to avoid effecting personal service of the originating documents, in this case the notice of appeal. That has not yet occurred in connection with these proceedings and on Ms. Jellow in spite of the fact that the court specifically directed the Applicant to do so at the original hearing. 16 .

Based on the fact that one of the parties has not been properly served I am unable to render any formal decision on this appeal at this time. I fully appreciate that the Appellant is elderly and appears to be under some degree of stress in wanting to re-claim her former home. I also appreciate that her evidence suggests there may have been some confusion on whether she in fact was required to effect personal service on Ms.

Jellow after she had a conversation with someone at the courthouse that would have naturally advised her that the parties would be served notice of the new hearing date by the court themselves as that is the court’s practice. I reasonably assume, whoever that person was, would not have known that the outstanding issue following the initial hearing remained the requirement to effect personal service of the “original” Notice of Appeal. 17 .

Therefore, it is this court’s determination and direction, should the Appellant wish to proceed, that the Appellant shall be required to effect personal service of the original “Notice of Appeal” on the named Respondent, Sharon Jellow, together with formal notice from the court as to a new hearing date. The court further directs that service of the new hearing date shall also be served upon Mr. McNeil by way of registered mail however so as to avoid any further issues of this nature and having regard to fact that the two named Respondents currently reside together, I further order that personal service upon Ms.

Jellow shall be deemed substituted service upon Mr. McNeil as well. Having regard to the fact that Ms. Jellow was not present to hear the evidence and afforded the opportunity to cross-examine and present evidence, it will be necessary that there be a fresh start by all parties. 18 .

Finally, the court wishes to note, based on the evidence the Appellant did present, and as confirmed to her following the hearing, as it relates to one of their matters of complaint requesting that the tenant be evicted, I again confirm that it does not appear that she has complied with the provisions of the Act regarding proper notice to the tenants and therefore in the interests of time she would be wise to commence that procedure from the beginning. This court cannot resolve that specific issue for her. 19 .

The court therefore orders that a new hearing date be set, that the Appellant effect personal service of this Notice of Appeal on the named Respondents together with notice of the new hearing date and further the court send by registered letter notice to the Respondent, Mr. McNeil, of the revised hearing date with the proviso that personal service upon Ms. Jellow shall be considered sufficient substituted service upon Mr. McNeil if for any reason he should choose to not collect his registered mail. DATED at Sydney, Nova Scotia this 23 rd day of July, 2019. A. ROBERT SAMPSON, Q.C. Adjudicator