CLARE MUTUAL INSURANCE COMPANY Claimant – v. –, 2016 NSSM 28

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation : Clare Mutual Insurance Company v. Saulnier , 2016 NSSM 28 Claim: SCY No. 451428 Registry: Yarmouth Between: CLARE MUTUAL INSURANCE COMPANY Claimant – and – SARAH SAULNIER Defendant Adjudicator : Andrew S. Nickerson, QC Heard: June 30, 2016 Decision: July 13, 2016 Appearances: The Claimant, Michael Daley, adjuster The Defendant, did not appear FACTS I will not review all of the evidence which I heard. I will set out the facts which are relevant to this decision.

The defendant entered into in a rental agreement for property at 32 White Cove Road, Belliveau Cove with David and Karen Norgard- Golden as landlords. The property was managed by their agent, Barbara Harding. I only heard evidence from Mr. Daley in his capacity as adjuster but he did provide certain statements one of which was made by Ms. Harding. Ms. Harding states that the defendant first occupied the property in either October or November 2014 and that the defendant left the property around the end of August in 2015.

It appears that no one saw the damage occurring or knows precisely who actually did the damage. The balance of the evidence I reviewed indicated that upon the defendant vacating the premises there was considerable damage to the property which the claimant alleges had a value of $12,694.78. The claimant brings this action as a subrogated claim, being the insurer of the landlord and having paid the cost of repair as noted. At the time of the hearing I advised Mr.

Daley that I was uncertain as to the status of an insurer bringing an action in its own name and to what extent the tenant may be liable for the actions of her guests. ISSUES Does the Small Claims Court have jurisdiction to hear this claim? ANALYSIS AND DECISION My research does indicate that there is a very serious jurisdictional issue that is fully explained better than I could here by Adjudicator

Slone in the case of Wawanesa Mutual Insurance Company v. Moulton, 2015 NSSM 21 . In that decision he carefully reviews the jurisprudence relevant to the issue that is before me. I have reviewed the decisions which Adjudicator Slone has cited and find them to be persuasive. I am directing that a copy of that case be attached as an appendix to this decision and provided to the parties so that they may better understand the ruling which I am about to give.

The essence of the ruling is given at paragraph 24 as follows: [24] In the result, I find that this court does not have jurisdiction to consider the case brought by Wawanesa. Were it only the technicality of Wawanesa suing in its own name, rather than in the name of the Association, I would likely have allowed an amendment substituting the Association as the Claimant. But the more fundamental problem is that Wawanesa’s claim is, in substance, a claim by a residential landlord against its own tenant, which claim (at first instance) is within the exclusive jurisdiction of the Director of Residential Tenancies.

Of course, should this matter proceed before the Director, it is always possible that it could end up back before this court on appeal. He firstly points out that on a subrogated claim the action must be brought in the name of the insured, not the name of the insurer. Had that been the only problem I also would have done as adjudicator Slone suggested and permitted an amendment. While that may have alleviated a technical problem, that is not the matter which causes me the greatest concern, although it is a problem which the claimant must attend to if it takes the matter any further.

Of greatest concern is that the jurisprudence is clear both in the Small Claims Court and in the Supreme Court that I do not have jurisdiction to entertain this claim. It seems clear from the judgments that I have reviewed that the Small Claims Court does not have original jurisdiction to hear matters arising out of a residential landlord-tenant relationship. The Small Claims Court does have appellate jurisdiction if a party is aggrieved by a decision of the Director of Residential Tenancies but that jurisdiction does not extend to allow me to hear the dispute in the first instance.

Therefore I have no option but to dismiss the claim. Dated at Yarmouth this 13 day of July, 2016. Andrew S. Nickerson Q.C., Adjudicator