GNF INVESTMENTS LIMITED Landlord(Appellant) - v. -, 2015 NSSM 54

Claim No: 440511 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Cite as: GNF Investments Ltd. v. Rossell, 2015 NSSM 54 BETWEEN: GNF INVESTMENTS LIMITED Landlord(Appellant) - and - SOFIA ROSSELL and ANTHONY KAVANAUGH Tenants (Respondents) REASONS FOR DECISION AND ORDER BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on December 2, 2015 Decision rendered on December 14, 2015 APPEARANCES For the Landlord Maggie Stewart

Counsel For the Tenant Adam Weryha, law student and Megan Deveaux, counsel Dalhousie Legal Aid REASONS FOR DECISION AND ORDER 1 This is an appeal by the Landlord from an Order of the Director of Residential Tenancies which upheld the right of the female Tenant, Ms.

Rossell, to terminate her tenancy early, as a result of a (claimed) “ significant deterioration in health ” which resulted in the “ inability of the tenant to continue the lease. ” 2 Notwithstanding the fact that a physician signed the requisite certificate to that effect, the Landlord questions whether the Tenants have relied on this provision for bona fide reasons. It seeks to disqualify the Tenants from early termination, and seeks lost rent as a result of the Tenants having vacated prior to the legal expiry of the lease term. The lease 3 On March 14, 2014, the Tenants, Ms.

Rossell and her spouse, Anthony Kavanagh, signed a lease for a 2-bedroom apartment, #803 at 56 Walter Havill Drive in Halifax. The lease was for a one-year term commencing April 1, 2014 at a rent of $1,395.00 per month. 4 56 Walter Havill Drive is a large, modern apartment complex containing 145 units. A twin building next door contains condominiums. 5 There are two features of the lease which are significant for this case: 10. ...

The tenant, occupants, their guests and or visitors are “NOT PERMITTED TO SMOKE IN THE UNIT ” The tenant will be held fully responsible for all repairs and or maintenance (painting of unit) and any other recourse to be taken by the landlord to eliminate any and all presence of smoke smell or damages as a result of non-compliance to the non smoking rule. 15. Pets are NOT PERMITTED to be kept on the property or in the unit of any tenant.

If acceptations (sic) are made by the landlord, the pet application must be submitted for approval prior to taking occupancy and written approval by management must first be obtained by the tenant before entry of the pet to the unit is allowed. All pet policies must be strictly adhered to by the tenant and failure to abide by the “Stoneridge Towers” pet policy could, at the sole discretion of the landlord, result in the pet being removed from the unit. .....(etc) 6 These are important because the health issue raised by Ms.

Rossell is asthma, and the suggestion is made that her inability to continue with the tenancy concerned exposure to pets and smoke. I say “ suggestion ” because, as I will detail later, there is very little evidence as to what specifically was concerning Ms. Rossell. 7 On March 24, 2015 the Tenants served a Form G (Notice to Quit - Early Termination of Tenancy) together with the Form H - Physician ’ s Certificate (itself dated March 10, 2015), indicating an intention to vacate on April 30, 2015.

Under the year to year lease, the Tenants could have given notice three months before its expiry to terminate the tenancy on the 31 st of March 2015, the end of the term. In the absence of such a timely notice on or before January 1, 2015, long before any form of notice was served, the lease automatically renewed for another year, namely from April 1, 2015 to March 31, 2016. That is the lease term that the Tenants sought to shorten from one year to one month.

The proceedings before the Director of Residential Tenancies 8 On April 7, 2015 the Landlord filed an application to the Director of Residential Tenancies to contest the early termination and seek future rent owing. A hearing was held on May 26, 2015. 9 In a decision dated June 10, 2015, the Residential Tenancy Officer found that the Tenants had met the requirements of the Residential Tenancies Act and that the lease legally terminated on April 30, 2015. In that decision there is no discussion by the Residential Tenancy Officer of the evidence that was presented before her.

She simply noted that the Landlord had not presented any evidence “ to the contrary ” to answer the evidence of the Tenants. 10 Aside from confirming the early termination, the order also required the Landlord to return to the Tenants the security deposit in the amount of $697.50. 11 The Landlord appealed to this Court and, after a number of procedural delays (including a default order dismissing the appeal and an order setting aside the default order), a hearing was held on December 2, 2015.

At that hearing, the Landlord called three witnesses: Michael Quigley, the general manager for the Appellant, Svenbjorn Arnason, sales manager for the Appellant, and Dr. Amy Mallory, Ms. Rossell ’ s physician, who had signed the certificate that she relied upon to terminate the tenancy. 12 The Tenants through their legal representative elected to call no evidence, despite the fact that they were present in court. It was argued that there was no evidence presented by the Landlord which would permit the court to question the medical certificate.

As a result of this tactical decision, for better or worse, the Court is left with the uncontradicted evidence of the Landlord ’ s witnesses. The Residential Tenancies Act provisions 13 The Residential Tenancies Act in s.10C provides a mechanism to ensure that tenants are not trapped in long-term leases that become non-viable due to the health of the tenant or a member of the tenant ’ s family: Early termination for health reasons 10C

(1) Notwithstanding

Section 10, where a tenant or a family member residing in the same residential premises in a year-to-year or fixed-term tenancy 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, the tenant may terminate the tenancy by giving the owner (

a) one month’s notice to quit, in the form prescribed in the regulations; (

b) a certificate of a qualified medical practitioner, in the form prescribed by regulation, evidencing the significant deterioration of health .... 14 This case squarely raises the issues of what this

section means, how it operates, and what rights (if any) a Landlord has to look behind a physician ’ s certificate and question whether the requirements of the legislation have truly been met. Frustration of contract

15 In my opinion, s.10C is a specific application of the more general principle that contracts which have been “ frustrated ” need not be performed. The doctrine of frustration allows for the legal termination of a contract due to unforeseen circumstances that prevent the achievement of its objectives, render its performance illegal, or make it practically impossible to execute.

Examples of frustrating events include a change in the law (such as by making possession or use of a product unlawful), fire (which destroys the subject matter of the contract), sickness or death of one of the parties (who can no longer be expected to perform), or third-party interference (such as by government action eg. after a declaration of war). These are but a few examples. 16 Whether or not a contract has been frustrated has always been a question of fact. In other words, the say-so of one party has never been conclusive.

That would make it too easy to evade contractual responsibilities. 17 The Residential Tenancies Act is very specific about what has to occur before a yearly or fixed term lease can be ended early. There must have been a “ deterioration of health, ” as a result of which (in the opinion of a physician) the tenancy is no longer viable and/or the premises are no longer accessible. If there has been no deterioration in health the right to early termination does not manifest.

And even if there has been a deterioration in health, however caused, the right to early termination is not engaged unless a physician concludes that the result of that deteriorated health makes the tenancy non-viable or the premises inaccessible. 18

Section 10C has been in the Residential Tenancies Act since at least 1993. My attention has been drawn to several cases in this Court where the adjudicators have been critical of the form which merely required the physician to tick a box, certifying that the requirements of 10C have been met: see Arnaout v. Ferla 2004 NSSM 47 ; Snevrk Management v. Atkinson 2010 NSSM 1 ; and Allen v. Black 2012 NSSM 27 . In all of those cases, the adjudicator was prepared to look behind the certificate to determine whether the facts justified the early termination.

In 2012, there was a change to the Regulations which changed the form of the physician ’ s certificate, making it a bit more explicit, but it appears still to require little more of the physician than to tick a box. As such, the criticisms of the adjudicators in the cases above noted still apply. 19 In the case of Rolle v. Rockstone Investments Ltd. , 2015 NSSM 24 , I had occasion to comment on this

section and the weight which ought to be given to the (current) physician ’ s certificate: [19] ...... Form H - Physician's Certificate - Termination of Tenancy for Health Reasons .... asks the physician to sign the standard form certificate, which states: "I hereby certify that I have examined the above-named tenant and that she has suffered a significant deterioration of health that ... renders the residential premises inaccessible to the tenant." [20] This statutory form does not ask the physician to elaborate on the health condition.

In my view, this represents a deliberate decision on the part of the Legislature to respect the privacy of tenants and to give weight to a physician who is prepared to certify to the conclusion that the tenant has suffered a health deterioration that renders the premises inaccessible. ................. [22] In my respectful view, the Landlord and, in turn, the Residential Tenancy Officer owed a great degree of deference to the conclusion of Ms.

Rolle's physician. [23] This is not to suggest that such a certificate might not be called into question, where the facts establish that the certificate ought not to have been signed, such as (but not exclusively) because of fraud. 20 The Residential Tenancy Officer and, by extension this Court, must strike a proper balance between the rights of the tenant (here Ms. Rossell) and those of the Landlord. The tenant is entitled to have her rights and privacy respected, and to have the opinion of her physician accepted at face value.

The Landlord, on the other hand, must be entitled to question whether there is any justice in forcing it to incur the financial cost associated with an abrupt disruption of its flow of rent.

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. 23 There are good, practical reasons why physicians should not have the final word on whether or not the requirements of s.10C have been met. Providing this certificate is analogous to the role that physicians play in certifying that their patient suffers from a disability for insurance purposes or other public or private benefits.

Insurers and government departments have always had the right to look behind the medical opinion, and I believe landlords have similar, though arguably lesser, rights. 24 Physicians, especially family physicians, have a vital role to play as patient advocates and personal supports. It asks too much of them to be the final arbiters of whether or not their patients are entitled to certain financial benefits. We cannot expect physicians to fully inquire into all the circumstances, and to balance fairly the rights of their patient with those of the landlord, insurance company or the government.

While we expect physicians to exercise some judgment and not to become unwitting dupes, we recognize where their allegiance lies. They will favour their patient. 25 Putting the issue another way, a landlord has the right to have its financial interests ultimately determined by someone who is unbiassed and not by someone who is at heart an advocate for the tenant. The evidence 26 Against the backdrop of this legislative regime, I must determine whether the evidence supports Ms.

Rossell ’ s contention that because of a deterioration in health she was unable to continue with the tenancy. 27 I have already set out the terms of the lease. The Landlord ’ s witnesses confirmed that this building is intended to be smoke free in the interiors, and to be mostly pet free. At the time the subject lease was entered into, there were at most two dogs in the building (and maybe only one), which had been authorized in accordance with their owners ’ leases. Ms. Rossell and her spouse were concerned at the outset about pets, and were specifically told about the one or two dogs that were there.

By the time the Tenants sought to terminate the lease, there was only one small dog in the building, which was not on the same floor as them; it was on the 6 th floor, two below where the Tenants lived. There is no evidence before me as to the type of dog, nor of its habits. I take notice of the fact that not all dogs are allergenic. 28 As for smoking, to the best of the knowledge of the Landlord ’ s witnesses, people did not smoke inside the building, though some people did smoke on their balconies.

There was no evidence as to the extent of balcony smoking, or whether anyone smoked on a balcony near enough to the Tenants ’ unit such that smoke could waft over. 29 Neither of the Landlord ’ s witnesses was aware of any specific complaints by Ms. Rossell or her spouse about pets. Mr. Quigley testified that Mr. Kavanaugh “ may have ” raised an issue about smoking once during the tenancy, but there was no mention of his spouse ’ s health concerns. Mr. Quigley testified that, when anyone complained about smoking, they acted and actively enforced the terms of their leases. Mr.

Quigley also responded to one complaint where a tenant had apparently been smoking something other than

tobacco in their unit. 30 One or other of the Tenants did make a complaint about noise coming from another apartment, and about the performance of their heat pump. These complaints were apparently resolved satisfactorily. It is possible that they could have made other complaints to the superintendent, that were not passed on to anyone higher up, but there is no evidence before me that they did. 31 The evidence of Mr. Quigley was that in early March 2015 (probably a few days before March 10) he was approached by Mr. Kavanagh with a request that he and Ms. Rossell be permitted to terminate their lease early.

No reason was given. Mr. Quigley explained to him that they had already missed the deadline for termination at the end of the term. Mr. Kavanagh asked “ what can we do to get out of the lease? ” He said they did not want to stay another year. There was a mention of noisy neighbours, but no mention of Ms. Rossell ’ s health. Mr. Quigley suggested that they could try to sublet or assign their lease, but Mr. Kavanagh did not seem interested in that option. 32 In an earlier meeting with Mr. Arnason (who told him to speak to Mr. Quigley) Mr.

Kavanagh was quoted as saying that he would “ find a way to get out of the lease. ” 33 According to Mr. Quigley, the next encounter he had with Mr. Kavanagh was when he came by the office on March 24, 2015 to serve the notice and doctor ’ s certificate (dated March 10, 2015). He told Mr. Quigley that they were leaving because of “ health concerns ” but he refused to elaborate further. 34 As mentioned, the Landlord subpoenaed Dr. Amy Mallory, who had signed the certificate. She is a family physician practising in Halifax and had first seen Ms.

Rossell as a patient in July 2014, shortly after the Tenants had moved to Halifax from Newfoundland. On that initial visit she learned that Ms. Rossell was asthmatic, and she renewed her prescriptions for two medications: a long-acting steroid-bronchodilator combination, and a short-acting bronchodilating “ rescue ” medication (ventolin) to be taken as needed. 35 Dr. Mallory next saw Ms. Rossell on February 24, 2015, roughly six months later, when she came in for the routine renewal of her prescriptions. Dr. Mallory stated that she asked Ms.

Rossell how often she had to use her rescue medication, and was told approximately twice per week. This was within reasonable limits, and Dr. Mallory considered Ms. Rossell ’ s asthma to be under reasonable control. 36 According to Dr. Mallory, Ms. Rossell did not raise any issues with her asthma, or with her apartment, on that visit. 37 Ms. Rossell made another appointment and came in to see Dr. Mallory on March 10, 2015. She told Dr. Mallory that her building was supposed to be pet-free and smoke-free, but that there were pets and smoke which were triggers for her asthma. She asked Dr.

Mallory to sign the certificate so she could get out of her lease. 38 Dr. Mallory was clear in her testimony about what Ms. Rossell did not say. She did not say that her asthma had worsened over the past six months, nor over the past three weeks since the February 24 visit. She did not say that she was using ventolin more than twice weekly. She did not have a specific discussion with Dr. Mallory about what triggered her asthma, or what she might be able to do to reduce exposures. 39 Ms. Rossell left that visit with the signed certificate in hand. 40 On April 24, 2015, Ms. Rossell returned to see Dr. Mallory. Ms.

Rossell was in severe psychological stress. She told Dr. Mallory that the Landlord had been unwilling to help them to leave their tenancy, and she was fearful for her safety (in some unspecified way). She told Dr. Mallory that she could no longer stay in the apartment. Dr. Mallory offered supportive psychotherapy, prescribed anti-anxiety and sleeping medication, and put Ms. Rossell off work for the balance of the week.

41 On May 5, 2015, Dr. Mallory wrote a narrative letter in further support of Ms. Rossell ’ s effort to terminate her lease. This was originally sought for use at the Residential Tenancies hearing, though it was not actually introduced until the hearing before this Court. It is useful to quote the letter in full: This letter was requested by my patients, Ms Sofia Rossell and Mr Anthony Kavanaugh, in support of my completion of the Form H Physician's Certificate dated March 10, 2015. I received my Doctor of Medicine degree from Dalhousie University in 2005.

I hold my CCFP designation with the College of Family Physicians of Canada. I hold a full unrestricted medical license with the Nova Scotia College of Physicians and Surgeons. Ms Rossell and Mr Kavanaugh have been under my care as their family physician since August 2014. [ should be July 2014 ] In February 2015, Ms Rossell presented for renewal of her asthma medications. On March 10, 2015 Ms Rossell disclosed her concerns regarding the air quality in her apartment building. She states that the building was advertised as pet and smoke-free.

I agreed that given her history of asthma, allergens and inhalants such as pet dander and smoke could certainly exacerbate her asthma and cause a deterioration in her health. The Form H Physician states ( sic ) was at that time completed. Unfortunately, in April Ms Rossell returned in moderate to severe psychological distress, citing serious concerns for her safety that had arisen after she and Mr Kavanaugh had presented their intent to terminate their lease to the landlord. She was no longer able to stay in their rented apartment due to fear and anxiety. 42 Dr.

Mallory testified that the focus of the visit in April was Ms. Rossell ’ s acute reactive stress and emotional disturbance, centred around their issue with the Landlord. The issue for Ms. Rossell was not her asthma. By the time she saw Ms. Rossell again in May 2015 (after they had moved) she was feeling much better. Discussion of evidence and findings 43 In my opinion, the evidence falls far short of confirming that Ms. Rossell had suffered any deterioration in her health at the time Dr. Mallory signed the certificate, let alone a “ significant ” one.

Her asthma did not appear to be out of control on February 24, nor on March 10. With all due respect to Dr.

Mallory, who was trying to be helpful to her patient, she failed to turn her mind to the first factual building block: a “ significant deterioration in health ” that had occurred. 44 Even the narrative letter of May 5, 2015 did not report that there had been a deterioration in health, only that “ allergens and inhalants such as pet dander and smoke could certainly exacerbate her asthma and cause a deterioration in her health . ” In other words, there was a concern about a possible future deterioration in health if Ms.

Rossell was subjected to these exposures, but no confirmation of a deterioration that had already occurred. 45 The second building block in the test under s.10C is that this deterioration renders the patient “ unable to continue ” with the tenancy. 46 It appears that Dr. Mallory made the logical leap from the fact that Ms. Rossell was reactive to dogs and smoke, to a conclusion that this tenancy could not accommodate her health problems and would inevitably cause a deterioration in health.

I do not believe this was a fair conclusion. 47 I believe the balancing of interests between a tenant and a landlord is analogous (though not identical) to the duty of “ accommodation ” (not to be confused with living space) in the human rights context. A person, whether an employee, tenant or

someone else who finds themself in a situation where some form of accommodation (i.e. a variation in the way they are treated) is required, cannot launch a complaint to the effect that the other party has failed to accommodate them, without first making known that they have a need for accommodation, and giving the other party an opportunity to provide that accommodation. A simple example would be where an employee who is injured and is now in a wheelchair cannot access their workplace because it is not wheelchair friendly.

The first step is to ask the employer whether the building could be fitted with a ramp, or a doorway made wider - whatever is required. Many accommodation requests are achievable. It has often been observed that accommodation is a two-way street.

Only after reasonable accommodation is refused can a complaint legitimately be brought. 48 I believe that in the situation where a tenant has suffered a significant deterioration of health that she believes makes her unit “ inaccessible ” or the tenancy otherwise non-viable, the tenant has an initial duty to advise the landlord of the problem and give them the opportunity to look into and, if possible, fix that problem. In many cases, there will be nothing that can be done.

For example, in Rolle (above) the tenant became unable to climb stairs because of a high risk pregnancy, and there would have been nothing that the landlord could do to adapt the multi-level apartment to suit. 49 In the situation here, had Ms. Rossell informed the Landlord that she was suffering a worsening of her asthma because of the dog on the 6 th floor, or other tenants smoking on their balconies, or improperly smoking within the building, the Landlord might have been able to alleviate the problem. Maybe a tenant needed to be warned, or asked to cooperate in not smoking outside at certain hours.

Maybe there was a problem with the unit ’ s air exchange system. We simply do not know what steps, short of terminating the lease, might have been effective. The Landlord was not given any chance to apply what might have been an easy fix. 50 Again, I return to the question of a significant deterioration in health. The evidence does not point to one, so the second branch of the test does not even come into play. 51 I do not make light of Ms. Rossell ’ s emotional and psychological distress, especially after the Landlord made known that it did not accept the early termination.

It is a given that the Tenants wanted to get out of their lease, but the real reason remains a mystery. Perhaps it was too expensive, or inconveniently located. The prospect of being trapped in an unwanted lease could be a source of great stress, and I do not question the bona fides of Ms. Rossell ’ s suffering. But I do not think that s.10C was intended to allow a tenant to terminate a lease because of the stress of a dispute with the landlord over the tenant ’ s attempt to terminate the lease.

There must be something inherently problematic about the physical premises on a go-forward basis. 52 In the result, I find that Ms. Rossell has not established that she meets the requirements of s.10C of the Residential Tenancies Act. The Tenants were accordingly in breach of their lease when they moved out on or before April 30, 2015, and as such they are liable to the Landlord for ongoing rent. 53 The other side to that equation is that the Landlord had an immediate duty to mitigate its loss by trying to re-rent the unit. The evidence establishes that this is what the Landlord did.

Unfortunately it took three months before a new tenant could be installed. This is not, on the face of it, unreasonable, and there was no argument advanced by the Tenants to the effect that the Landlord had failed to mitigate reasonably. 54 As such, I find that the Tenants owe the Landlord three months ’ rent in the amount of $4,185.00, minus their security deposit of $697.50, for a total of $3,487.50. The Landlord further seeks its costs of $31.15 to issue the Residential Tenancies application, plus $99.70 to launch this appeal.

These amounts are allowed, and the Tenants are accordingly ordered to pay to the Landlord the sum of $3,618.35. Eric K. Slone, Adjudicator