Poirier v. Sinha, 2017 NSSM 96

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Poirier v. Sinha , 2017 NSSM 96 Claim No: SCCH 464947 BETWEEN: IAN POIRIER, DAVID ANGELO WILLIAMS and LIANA WILLIAMS Appellants/ Tenants -and – DINESH P. SINHA Respondent/ Landlord Ian Poirier appeared on behalf of the Tenants. The Landlord, Dinesh P. Sinha, appeared on his own behalf along with his wife, Madhuri Sinha. Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.

DECISION ( 1 ) This is an appeal of the Decision and Order of Residential Tenancies Officer, Jason Warham, dated June 15, 2017. ( 2 ) The original application was brought by the landlord following the vacancy of the premises on several days notice. Dr. Sinha seeks one year’s rent plus the damage deposit and additional grounds for damage to the bathroom and carpet cleaning. The tenancies officer allowed a portion of the claim. The tenants, Ian Poirier and David Angelo Williams, appeared before Mr. Warham. Marcel Poirier and Liana Williams are guarantors of the lease and did not occupy the unit.

Liana Williams is David Angelo’s mother and was not named as an appellant. However, any judgment against her son, also applies to Ms. Williams personally. In addition, she benefits from any variation of the original judgment. Marcel Poirier is Ian’s father, but he was not a signatory to the lease and was found by the Tenancies Officer not liable under it. This finding has not been appealed. ( 3 ) An appeal from the decision of a Residential Tenancies Officer is a new hearing based on the evidence presented before the Small Claims Court Adjudicator.

The evidence presented usually consists of that presented to the Residential Tenancies Officer (in whole or in part) and any additional evidence the parties seek to adduce. An adjudicator may confirm the Order of the Residential Tenancies Officer or vary it as he or she considers just and appropriate. ( 4 ) For the reasons that follow, I have reached the same conclusion as Mr. Warham on the issues of notice and mitigation. I have modified his award for damages.

The Facts ( 5 ) The background and details of the tenancy are not complicated. The rental premises are located at [address removed], on or just off Quinpool Road in Halifax. The building is owned by a condominium corporation. Dr. Sinha owns one of the condominiums which he rents. During the term of the lease, Ian Poirier and David Angelo Williams were students who rented the premises while they attended university in 2015/2016. ( 6 ) The parties entered into a year-to-year lease commencing May 15, 2015. The rent payable was $1250 per month. A security deposit of $625 was paid to the landlord by the tenants.

The tenants vacated the unit on or about May 1, 2016. They provided written notice to the landlord dated April 29, 2016. The application was brought almost one year later. The landlord seeks one year’s rent plus $2002.18 for damages and 1% late fees. The Evidence ( 7 ) Both parties submitted photographic and documentary evidence in support of their positions, in addition to their oral evidence. There are portions of the evidence which I have not mentioned in this decision. However, these have been considered and given the weight they are due. ( 8 ) Dr.

Dinesh Sinha testified the tenants saw the condominium on May 1, 2015 and moved in on that date. They found deficiencies which are listed on an inspection report tendered into evidence. The tenants’ parents fixed some of the problems but Dr. Sinha indicated most were fixed without cost. He was advised by Ian Poirier on April 30, 2016, the tenants intended to leave the following day, May 1. Dr. Sinha indicated the unit was sublet without his knowledge. The subtenant did extensive damage to the unit. ( 9 ) Dr.

Sinha relies on s.9(6) of the Residential Tenancies Act which addresses a landlord's right when a tenant abandons or terminates a lease without notice. He also relies on s.10 addressing the automatic renewal and need for notice three months prior to the anniversary date of a year to year lease. Dr. Sinha tendered into evidence a number of ads and correspondence showing that he attempted to rent the unit.

He submitted into the court a number of letters that he wrote as part of his submissions why he seeks be extent of the damage. ( 10 ) Ian Poirier testified that he and David Angelo Williams moved into the unit early, namely, May 1 and noted small amounts of damage. He approached Dr. Sinha who told Mr. Poirier he would not fix any damage. He described a number of problems that occurred which Dr. Sinha refused to repair, including that tiles were lifting. They decided to leave the premises and sublet the condo. Dr. Sinha indicated to them that meant they were the landlords as far as the subtenants were concerned.

The subtenant left citing condition issues with the premises as well. There were certain items Mr. Poirier's father fixed or attempted to fix. The pictures show damage to the premises. ( 11 ) Madhuri Sinha indicated that there was no communication between her and the tenants even though she was the person to contact. Mrs. Sinha had only been spoken to once concerning bedbugs. She testified that Mr. Poirier's father did a number of repairs himself including replacing a fuse in the oven. ( 12 ) Dr.

Sinha testified that the issue with the oven was not referenced in any of the deficiencies when they moved into the unit. The tenants left without complaining about any water damage or other issues that were raised after they left. Dr. Sinha testified that due to a water problem prior to the tenancy, he had the unit repaired and redone. Any of the issues must have occurred after the construction was completed.

He tendered into evidence a letter from Plant Hope Adjusters Limited who represented the insurers for HCCC #60, the condominium corporation which owns the building, directing him to make repairs immediately following the water damage which the adjuster attributed to Dr. Sinha’s neglect. It is this which he is citing as evidence the work was done. No invoices or other documentary evidence corroborating the prior repairs were tendered into evidence. ( 13 ) In his submissions, Mr. Poirier acknowledged that it became difficult to talk with the Sinhas concerning the state of the washroom.

He found them to be uncooperative, so the tenants simply gave up trying. He found Dr. Sinha was only helpful with respect to treating a bedbug. They found someone else to live there as they did not wish to stay. At the hearing before Mr. Warham, apparently he took the position that he gave verbal notice with Dr. Sinha’s consent. There is no evidence of that. Mr. Poirier now acknowledges he was required to give three months notice but felt Dr. Sinha should have been able to rent the unit in less than four months.

He seeks to have the amount for unpaid rent reduced to one or two months’ rent. ( 14 ) The Sinhas submit the tenants gave all forms of excuses which he felt were without merit. Dr. Sinha believed his tenants were responsible for the bedbugs they found. I shall have more to say on those later in this decision. There were no other complaints regarding damage as these were not listed on the deficiencies. The Law and Findings

( 15 ) The Residential Tenancies Act governs these proceedings. Dr. Sinha cited numerous sections of the legislation, although not all provisions are relevant to this matter. I have cited the relevant provisions in the analysis of each issue. Notice to Quit ( 16 )

Section 10 governs notice to quit by the tenant and landlord. The relevant provisions for a year to year lease are set out below: 10

(1) Notwithstanding any agreement between the landlord and tenant respecting a period of notice, notice to quit residential premises shall be given (a)where the residential premises are let from year to year, by the tenant at least three months before the expiration of any such year; …… ( 17 ) In addition, Statutory Condition 6 provides that when a tenant has either abandoned the premises or left early with notice, the landlord has a duty to mitigate his losses: 9

(1) Notwithstanding any lease, agreement, waiver, declaration or other statement to the contrary, where the relation of landlord and tenant exists in respect of residential premises by virtue of this Act or otherwise, there is and is deemed to be an agreement between the landlord and tenant that the following conditions will apply as between the landlord and tenant as statutory conditions governing the residential premises…: 6.

Abandonment and Termination - If the tenant abandons the premises or terminates the tenancy otherwise than in the manner permitted, the landlord shall mitigate any damages that may be caused by the abandonment or termination to the extent that a party to a contract is required by law to mitigate damages. ( 18 ) I find as a fact the landlord and tenants signed a year to year lease with an effective date of May 15, 2015 and an anniversary date of May 15. The tenants gave notice on either April 30 or May 1 and vacated the premises on May 1, 2016.

As a result, the lease automatically renewed for which the tenants are responsible. ( 19 ) The landlord must mitigate his losses. I find he attempted to rent the premises shortly after they were vacated and ran an ad on Kijiji in each of June, July, August and September. There was no ad run in May 2016. The next ad was not placed until February, 2017. There were inquiries during each month. The Sinhas also showed the unit during these months.

They attempted t rent the unit on the same conditions as the lease subject to this appeal. ( 20 ) I am not satisfied their efforts were sufficient to justify an award of rental payments for one year. The landlords had an obligation to repair the unit and attempt to rent it commencing May 1 and an ongoing obligation to keep it on the market. They did not do so. As noted below, many repairs were not commenced until later. In addition, I find Dr. Sinha took no alternative efforts towards mitigation of his losses, such as reducing the rent and seeking the difference from the tenant as a cost of mitigation.

It would be extremely rare for this Court to award a full year’s rent unless all reasonable attempts at mitigation have been exhausted. The evidence does not support any such finding. ( 21 ) The tenant submitted the rental amount should be reduced alleging Dr. Sinha could have rented the unit in one or two months. There is no evidence to support this assertion. As noted above, Dr. Sinha did make efforts to rent the unit, though not to the extent he claims. While I am in no way constrained by his findings, like Mr.

Warham, I find the evidence justifies a finding of four months’ rent at $1250 per month as reasonable mitigation. I award $5000 under this heading.

Damages ( 22 ) Statutory Condition 4 provides as follows: Obligation of the Tenant - The tenant is responsible for the ordinary cleanliness of the interior of the premises and for the repair of damage caused by wilful or negligent act of the tenant or of any person whom the tenant permits on the premises. ( 23 ) In order to find the tenants responsible for the damage, it is not sufficient that it exist, but the landlord must show it was caused by the wilful or negligent act of the tenant(

s) or others permitted by the tenants.

( 24 ) There are receipts for the following: Install Trim and bathtub fittings (Oct 19/16): $ 75.00 Carpet Cleaning (August 8/16) $ 120.00 Plumbing (July 31, 2016) $ 254.15 Install Tub and Shower Rough (Sept.30/16) $1178.03 Total $1627.18 ( 25 ) The “Tub and Shower Rough” claim includes a management fee of $300 which has no relevance to the claim. Thus, I find the landlord has submitted receipts for $1327.18. I have not considered any portion not supported by receipts. ( 26 ) In reviewing the evidence, I accept the tenant’s version of events in his attempts to have Dr. Sinha perform the work.

I find the landlord refused several times to remedy deficiencies. The lease contains a provision such as “It is rented as is, Tenants have seen & agreed.” As a result, I find Dr. Sinha did not attempt to make any repairs. I find the bathroom was in a poor state prior to the tenancy. The repairs performed on the unit at Dr. Sinha’s behest commenced in July when the unit had been vacant for at least three months. ( 27 ) I find most damage the result of neglect on the part of the landlord rather than wilful or negligent acts of the tenant, including repairs attempted by him.

I find the unit was not cleaned by the tenant and left in a dirty state. I find there was some damage to the bathroom, but not to that extent claimed. I allow $120.00 claimed for carpet cleaning and $300 for damage (slightly less than 25% of the remaining items supported by receipts.) for a total of $420 under this heading. Late Fees ( 28 ) I do not believe the circumstances warrant the Court to award late fees. The claim is disallowed. Bed Bugs ( 29 ) In 2015, the tenants found bed bugs in the unit which the landlord initially refused to address.

However, they hired an exterminator to identify the issue and attempted to eradicate the problem. Dr. Sinha blamed the tenants for the bed bugs. The tenants attributed them to bed bugs in another unit and thought the exterminator’s efforts insufficient. In the end, the tenants thought it more convenient to remain there rather than leaving early. Consequently, I found the bed bugs were sufficiently eliminated as not to be a factor in this particular case. Conclusion ( 30 ) In conclusion, the appeal is allowed in part. I confirm the dismissal of the claim against Marcel Poirier.

The tenants, Ian Poirier, David-Angelo Williams and Liana Williams, shall be jointly and severally liable as follows: Amount of Rent: $5000.00 Damages: $ 420.00 Application Fee: $ 31.15 Less: Security Deposit: ($625.00) Total $4826.15 Dated at Halifax, NS, on July 20, 2017; ______________________________ Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)