2011 NSSM 7, 2011 NSSM 7

Claim No. SCCH 344114 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Metro Regional Housing Authority v. Doucette, 2011 NSSM 7 BETWEEN Metro Regional Housing Authority APPLICANT - and – Danny Doucette and Leona Doucette RESPONDENT Adjudicator: David TR Parker Heard: March 3, 2011 Decision: March 9, 2011 Decision This matter came before the Small Claims Court of Nova Scotia at Halifax on March 3, 2011 This is an Application made by Metro Regional Housing Association to enforce an Order of the Director of residential tenancies.

The Order the Director is dated September 13, 2010 which stated that the tenants/respondents were to pay the landlord/applicant $2690.83. Further it was Ordered that the tenancy will terminate on September 23, 2010 at which time the tenants and any occupants will give vacant possession of the premises known as 5 Orange Walk, Halifax Nova Scotia to the landlord.

The Applicant in its Application to this court stated: "This Order is more than 60 days old and the Small Claims Court Administration will not issue a vacant possession Order beyond the 60 day time limit necessitating this Application." The applicant advised court it served this Application on the respondents.

A similar situation on this came before me some time ago by the same applicant albeit different respondents. At that time I advised the applicant that the matter should go back to the Director however I believed at that time, that on its face the Director would issue a similar Order as rent was past due. While it may seem incumbent upon me to follow my own precedent it is not a matter of law that I must do so. I advised the Applicant that I would consider the matter and write a response to the Application on whether to proceed with the Application or not.

I have given this some reflective critical consideration and deny the Application for the following reasons: An Application was previously made to the Residential Tenancy Board and obviously was done for reasons articulated in the Application and referenced in the Order of the Director. As considerable time has elapsed since the Order of the Director, new circumstances or different circumstances could have and probably did transpire. It also appears that the Application is not on the same grounds as the original Application to the Residential Tenancies Board.

An Appeal from a Director ’ s Order allows a trial de novo; this is not envisaged in Application of this sort. Both parties should be fully heard and that would be before the Residential Tenancies Board. It would also seem the landlord's decision not to enforce the Order of the Director resulted in some sort of change in circumstances and then to request it to be enforced at such a late date disregards these circumstantial changes. To terminate a lease is not something that I believe is easily done by the Director and there must have been sufficient factual evidence for the Director to do so.

Further there must have been a reason for the landlord in not enforcing the Order as the whole intent originally of making the Application by the landlord in this case was to have the tenancy terminated. Even if what I were refer to as the 60 day rule is simply policy it is a valid policy of substance as the circumstances must have changed between the landlord and tenant for the landlord not to enforce the Order within a reasonable timeframe.

It may well be that the Director will make the same Order or at least a similar Order but both sides will be given a full hearing if an Application is made to the Director in this case by the landlord. A full hearing is not envisaged in an Application to this court. For all these reasons I will deny the Application and the applicant is at liberty to make an Application once again to the Residential Tenancies Board.