2015 NSSM 30, 2015 NSSM 30

SCCH 440803 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Graham v. Kamoulakos , 2015 NSSM 30 BETWEEN Scott Graham Applicant -and- John Kamoulakos Respondent Adjudicator : David TR Parker QC Heard: July 16, 2015 Decision: July 23, 2015

Application before the Small Claims Court for granting a Stay and Injunctive relief of an Order of the Director of Residential Tenancies. The Small Claims Court has Jurisdiction to grant a Stay but not to grant an Injunction. Decision 1 . This is an Application by Scott Graham a tenant at 1547 Grafton St. Apartment #6. The Application was for a Stay of an Order of the Director of Residential Tenancies dated June 23, 2015, and being file #201501629.

The Applicant is also seeking an Order prohibiting the Respondent/landlord from taking possession or causing vacant possession of the residential premises referred to above. 2 . The Respondent/landlord was served with notice of the Application to Stay a Director of Residential Tenancies’ Order and for an Injunction Order prohibiting the Respondent from taking possession of 1547 Grafton St. Apartment # 6. The Respondent did not appear. 3 . I will speak to the question of Staying the Director’s Order and the Injunction Order, momentarily. 4 . I first make reference to the Director’s Order.

According to the Order, the Applicant/tenant was seeking compensation for work done on the premises and damage done to the tenant’s property. The Respondent/landlord was seeking unpaid rent. 5 . In the Director’s decision it was determined the relationship between the two parties started out as a Residential Tenancy but changed into a commercial tenancy. As a result the Director Ordered that the landlord’s claim for compensation or eviction be dismissed as it was a commercial premises and therefore outside the Director’s legislative jurisdiction. 6 .

The Director’s Order also dismissed the Applicant/tenant’s claim. As the Residential Tenancies Act does not allow for compensation to a tenant for repairs. 7 . On June 30, 2015 the Applicant/tenant filed a notice of appeal of the Director’s Order dated June 23, 2015. The reasons for the appeal referenced that the Director was incorrect in concluding the tendency morphed from a residential tenancy to a commercial tenancy. As a result the Appellant and Applicant herein suggest the Director does have jurisdiction to deal with the “remedy sought”. 8 .

The hearing date for the appeal is set for April 11, 2015 at 6 PM in the Small Claims Court at Halifax, Nova Scotia. 9 . The Applicant/tenant on June 30, 2015, the same day as the filing the appeal brought a motion before the Supreme Court of Nova Scotia moving for an Order for injunctive relief from eviction and forbidding interference with the residential tenancy of the applicant. 10 . The Applicant/Tenant received an Interim Ex Parte Emergency Order from Justice Jamie S. Campbell.

It was ordered that “the Order of the Residential Tenancies Officer issued June 23, 2015 is hereby stayed on an interim basis and the Respondent [landlord] enjoined on an interim basis from taking possession of the premises at Apartment 6, 1547 Grafton St., Halifax, Nova Scotia until the Applicant’s[tenant’s] motion in this court can be heard upon notice.”

11 . At the hearing of this Application for an Order Staying the Order of the Director’s Order of June 23, 2015 and for an Order prohibiting the Respondent/landlord from taking possession of the premises, the Applicant informed the court that Justice MacAdam of the Supreme Court of Nova Scotia heard the Applicant/tenant’s motion and sent the matter to be dealt with before the Small Claims Court. 12 . I advise the Applicant that I would want to review that Order of Justice MacAdam which he did not have at the time of this Hearing. 13 . I received the “Events, List” from the court files the next day.

The Events List references the Chambers application before Justice Campbell on June 30, 2015 staying the Order of the Director on an interim basis and enjoined the Respondent/landlord on an interim basis from taking possession. The Respondent/landlord was to be served and the matter was to be heard on July 9, 2015 in Chambers. 14 . The notes from the Hearing of July 9, 2015 indicates that the applicant/tenant and responded/landlord were self-represented. The outcome was that the court extended the Stay for 10 days.

The Applicant/tenant was to seek Stay, at the Small Claims Court and cited the case Doucette Estate v. Muise [2015] NSJ No. 122 . The court notes also indicated that the Respondent/landlord “agrees on the Record, to maintain status quo until Small Claims Court hearing scheduled for August 11, 2015 in the Small Claims Court. 15 . As a result, the Applicant brought the Application before the Small Claims Court on July 16, 2015 to not only seek stay of the Residential Tenancies Director’s Order of June 23, 2015 but also for an Order for an Injunction. 16 .

This court does have the authority to Stay an Order of the Director of Residential Tenancies while waiting for an Appeal to be heard of a Director’s Order. The authority is statutorily driven. It falls within the ambit and orbit of Natural Justice referenced in

Section 2 of the Act. [See Doucette Estate v. Muise [2015] NSJ No. 122 for a more complete analysis] 17 . There are also two conditions which must be met in order to allow a Stay by the court [see Atlantic Home Warranty Program v. Austin Contracting Limited 2014 NSSM 74 ]. 18 .

The Applicant/tenant has made an Application that will Stay the Residential Tenancies Director’s Order of June 23, 2015 and has also requested an Interim Injunction prohibiting the respondent/landlord from acting in a matter so as to take possession or cause vacant possession of the premises known as apartment # 6 1547 Grafton St., Halifax, Nova Scotia. 19 . There is nothing to Stay in respect of the Director’s Order. The Order of the Director did not require either the Applicant/tenant or the Respondent/landlord to do or not to do something with respect to the premises known as #6 Grafton Street.

There is no reason to Stay an order for vacant possession as it was never granted. 20 . I note, however, that on the July 9, 2015 chambers record the respondent/landlord agreed to maintain the status quo until the Small Claims Court Appeal Hearing of the Director’s Order, on August 11, 2015. 21 . The Small Claims Court does not have the statutory authority to grant an injunction. An injunction is an equitable remedy. It might be argued that

section 2 dealing with Natural Justice might allow that remedy in the Small Claims Court. However, that was not argued and is not necessary for me to address it other than to say that an Injunction is an equitable remedy. 22 . Therefore the application will not succeed.

Dated at Halifax July 23, 2015