Dorfschmidt v. Kneblewski, 2022 NSSM 26

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Dorfschmidt v. Kneblewski , 2022 NSSM 26 ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Date: 202204 14 Docket: SCCH 512088 Registry: Halifax Between: Delores Dorfschmidt and Rainer Dorfschmidt Appellants (tenants) - and – Jessica Kneblewski Respondent (landlord) REASONS FOR DECISION AND ORDER Adjudicator : Eric K.

Slone Heard : Via teleconference in Halifax, Nova Scotia on April 11, 2022 Appearances : For the Appellants Tammy Wohler, Nova Scotia Legal Aid For the Respondent Nick Darbyshire, Articled Clerk BY THE COURT : [ 1 ] This is an appeal by the tenants from a decision of the Director of Residential Tenancies dated January 5, 2022. That decision ordered the tenants to surrender vacant possession of the subject premises at 6A Fraser Street in Dartmouth, Nova Scotia, on January 15,

2022. There was also some rent in arrears at that time, which was ordered to be paid, though the rent is currently in good standing. [ 2 ] There is an interesting and somewhat poignant history here. The tenants are an elderly retired couple who have lived in this unit since 1975. During those many years there were multiple owners (at least two that were mentioned), and there is no evidence to suggest that the Dorfschmidts were less than model tenants. [ 3 ] In September 2021, this 3-unit building was bought by Ms. Kneblewski, who is currently a resident of Hamilton, Ontario. Ms.

Kneblewski testified that it was her intention to move to Nova Scotia and eventually occupy unit 6A in this building. [ 4 ] On September 29, 2021, she wrote a letter to the tenants introducing herself as the new owner, and instructing them how to direct the rent.

It should be noted that the next rent payment was due just two days later on the 1 st of October. [ 5 ] In the same letter she enclosed a form of notice (said to be a form DR2, though not in evidence) advising the tenants that they needed to vacate the unit by the end of December 2021 in order for the landlord herself to take occupancy. [ 6 ] It is not disputed that this notice was not legally effective. Form DR2 (as per s. 10AA of the Residential Tenancies Act ) applies when the notice is given by a landlord who is selling the building, advising the tenant that the purchaser intends to occupy the unit.

Here the notice was given after the sale, by the new owner. Once the sale closed, having missed the opportunity to have her seller send a form DR2 prior to the sale, her remedy would have been to apply to the Director for an order pursuant to s.10(6)(f)(

i) of the Act, on the grounds that she required the residential premises “for the purpose of residence by himself or a member of his family.” [ 7 ] The tenants did not immediately seek advice, which - had they done - might have satisfied them that they had not (yet) been legally evicted. Instead, they went into a panic, which is understandable given that they had lived in this unit for some 46 years. The stress of contemplating a move created serious health problems for both of them. [ 8 ] They then made a very unfortunate decision. They stopped paying rent. [ 9 ] Ms.

Dorfschmidt testified that she was worried that if she had to pay the $900.00 monthly rent, they would not have enough money to secure a new place. [ 10 ] When no rent was paid by the 18 th of October 2021, the landlord prepared a Form D advising the tenants that their rent was more than 15 days in arrears and indicating that their tenancy would terminate as of November 5, 2021. [ 11 ] There is a live question whether the Form D served by the landlord was complete. The landlord’s counsel provided a package of exhibits for the benefit of the court.

The version of the Form D in evidence appears to be missing the all- important page 2, which advises the tenants of their legal options. Under the Regulations, what page 2 of Form D says is this: IMPORTANT INFORMATION FOR TENANTS No later than 15 days after receiving this Notice to Quit, you may (

a) pay the landlord the total rental arrears shown above. If you do so, this Notice to Quit is void and of no effect. OR

(

b) apply to the Director for an order setting aside this Notice to Quit by filing an Application to Director in Form J. You may obtain a copy of the Application to Director form at an Access Nova Scotia office or on the Service Nova Scotia website novascotia.ca/rta. Bring this notice with you.

If you do not pay the rental arrears or file an application by the end of the 15th day after receiving this Notice to Quit, your tenancy is terminated and you must vacate the premises by the termination date shown above, and your landlord may apply to the Director for any one or more of the following: • an order for you to vacate the premises; • an order requiring you to pay your landlord any rent owing for the month in which this Notice to Quit was given to you and any rental arrears for previous months; • an order permitting your landlord to retain your security deposit and interest to be applied against any rent found to be owing and in arrears.

The Director is authorized to make the order without holding a hearing. (See subsections 10(6A), 10(6B), 10(6C), 10(6D) and 10(6E) of the Act) You may be financially responsible for damages or rent due past the date of termination. The landlord must make a separate application for this money. [ 12 ] A tenant receiving the Form D without the second page would be missing an all-important piece of information.

Assuming they did not have access to legal advice, they might not appreciate that they had remedies to avert the eviction, namely paying the arrears within 15 days or bringing an Application to the Director. [ 13 ] Not only was page 2 missing from the exhibits before me, but it was not part of the Residential Tenancies file which is included in the Small Claims file. [ 14 ] I will return to the legality of the Form D later. [ 15 ] On November 30, 2021, the tenants obtained legal advice from Nora MacIntosh at Nova Scotia Legal Aid, who wrote to the landlord pointing out that the Form DR2 notice to vacate was ineffective (for the reasons I have explained above) and advising that the landlord would have to pursue her rights at a hearing before the Director of Residential Tenancies.

This letter made no mention of the rent that was not being paid, nor of the Form D (whether complete or not) that the landlord had served. [ 16 ] On December 7, 2021, the landlord filed a Form K to the Director, seeking termination of the tenancy for non-payment of rent. It was this application, without a hearing (as permitted by the Act), that resulted in the order under appeal. [ 17 ] In the meantime, it is worth noting that in December the tenants began to catch up with their rent.

As of December 22, 2021, they had actually overpaid, though the account kept fluctuating between surplus and arrears as the tenants made irregular payments on

dates other than the 1 st of the month. As of April 1, 2022, they are actually in a surplus of $12.00. Disposition [ 18 ] Had the landlord followed the procedure precisely and served a proper Form D, there would not have been much that the Residential Tenancies Officer or this court could have done to prevent the landlord from obtaining possession. [ 19 ]

Section 6C of the Residential Tenancies Act states: (6C) Where a tenant who has received a notice to quit under subsection (6) does not pay the rent that is in arrears or make an application to the Director in accordance with subsection (6A), the tenant (

a) is conclusively deemed to have accepted that the tenancy is terminated on the effective date of the notice; and (

b) must vacate the residential premises by that date. [ 20 ] I believe it is generally accepted that this “conclusive deeming” does not leave the Residential Tenancies Officer with any discretion to refuse vacant possession on some equitable or other basis. And this court only has the jurisdiction under s.17D of the Act to make an order that a Residential Tenancies Officer “could have made.” [ 21 ] But there is a fatal flaw, in my opinion. Although the landlord testified that she “would have” included page 2 of Form D, she could not swear that she did.

And it is highly suspicious that the Residential Tenancies file does not include it. On a balance of probabilities, I find that page 2 was missing from what was served on the tenants. [ 22 ] Had the Residential Tenancies Officer noticed the missing page 2, she ought to have concluded that the proceeding was a nullity. Given the drastic consequences to a tenant of the Form D procedure, and what follows, it is not too much to ask of landlords to ensure that the procedure is followed to the letter. [ 23 ] This is not a mere technicality.

The tenants have been deprived of vital information that they might have used to forestall their eviction. [ 24 ] It will be this court’s order that the order of Residential Tenancies be set aside and in its place an order will be made dismissing the landlord’s application for vacant possession. [ 25 ] In the event that I had found otherwise, I would have exercised my discretion to adjust the vacant possession date to something more realistic. These tenants have lived in the premises for almost 47 years. They are elderly and in poor health. They do not own a vehicle.

There is a shortage of affordable housing in the Halifax area. They will probably need a great deal of help to get ready for a move. I would have given them no less than three months from now to vacate. [ 26 ] The tenants must also understand that they need to keep their rent up to date or they risk facing additional proceedings. [ 27 ] They must also understand that this reprieve may be short lived as the landlord may still apply to the Director to terminate the tenancy on the ground that she intends to occupy the unit. ORDER

[ 28 ] In the result, the order of the Director dated January 5, 2022, is set aside in its entirety and the application of the landlord for vacant possession is rescinded. DATED at Halifax, Nova Scotia this 14 th day of April 2022. Eric K. Slone, adjudicator