Cragg v. Southwest Properties Ltd., 2012 NSSC 298

SUPREME COURT OF NOVA SCOTIA Citation: Cragg v. Southwest Properties Ltd., 2012 NSSC 298 Date: 2012/06/26 Docket: Hfx. No. 389764 Registry: Halifax Between: Edward Cragg Appellant v. Southwest Properties Ltd. Respondent Judge: The Honourable Justice Suzanne M.

Hood Heard: June 26, 2012, in Halifax, Nova Scotia Written Decision: August 9, 2012 (Written release of oral decision of June 26, 2012) Counsel: Claire McNeil Counsel for the Appellant and James Salimi, Senior Law Student Tyana Caplan, Counsel for the Respondent By the Court : [ 1 ] This is an appeal by Edward Cragg from a decision of the Adjudicator, Stephen Johnston, of the Small Claims Court. Four grounds of appeal were alleged. The fourth is not proceeded with today. [ 2 ] My role is a limited one on an appeal from the Small Claims Court.

I can only overturn a decision or remit it back to the Adjudicator if there is an error of law, jurisdictional error or failure to provide natural justice to a party.

[ 3 ] In my view, it is an error of law which is at issue here, although there is some element of there being an error of jurisdiction as well. I think we can proceed on the basis that an error of law is alleged. [ 4 ] I will note that I am to give deference to the Adjudicator ’ s findings of fact. I am not to substitute my own conclusions based upon the material before me. I must be satisfied that there is an evidentiary link between the facts that the Adjudicator refers to and the findings he made. [ 5 ] I must be satisfied that there are adequate reasons for the decision. As everyone has noted, the Adjudicator ’ s decision is brief. His

Summary of Findings is even more brief, even with

Schedule “ A ” which only addressed one of the issues in the Notice of Appeal and dealt with an extraneous issue. [ 6 ] The hearing before the Adjudicator was with respect to a simple issue: the tenant was in arrears of rent and the landlord wanted vacant possession of the premises and payment of rent arrears. [ 7 ] In evidence before the Small Claims Court was the tenant ledger for the unit which showed the rent to have been in arrears.

In his decision, the Adjudicator said that he determined that at the time the landlord applied, the Appellant was in, “ significant arrears of rent. ” [ 8 ] He then concluded that the tenants must vacate the residential premises as the result. [ 9 ] He had to make that determination because the tenant had tenure and could only be ordered to vacate by order of the Director.

On appeal, the Adjudicator of the Small Claims Court has the same powers as the Director. [ 10 ] The Adjudicator acknowledged the length of tenure and referred to it as, “ an extraordinary period of time ” in paragraph 8 of his decision. [ 11 ] He set a specific date for the tenant to give vacant possession. It was, as he said, a lengthy period between the date of his decision and the date of that order because of the lengthy period of tenure. [ 12 ] The Appellant says that there is insufficient reasoning for the Adjudicator to have come to his conclusions. I disagree.

Because the issue was so straightforward, once it was clear that rent was in arrears, “ significant arrears ” as the Adjudicator said, the landlord was entitled to possession. [ 13 ] He did note that the rent arrears had been paid between the first and second hearings. Unlike the decision in, Sackville Mobile Home Estate v.

Planetta , 2006 NSSM 12 , they were paid pursuant to an interim order of the Small Claims Court made at the first hearing. [ 14 ] He considered the position of the landlord at the time it made its application to the Residential Tenancies Officer (paragraph 5). [ 15 ] The Appellant also says the Adjudicator failed to grant the tenant relief from forfeiture. In his

summary he says: Given the extensive arrears I did not consider, nor was I asked to determine the applicability of relief from forfeiture during the three separate evenings over which this matter was heard.

[ 16 ] Relief of forfeiture is an equitable remedy and a discretionary one. The Appellant would have me say it was an error for the Adjudicator not to have raised that issue on behalf of the self-represented Appellant. [ 17 ] There are several things arising from that. The landlord was also self-represented. He did not have a lawyer in attendance. The role of an adjudicator, although an adjudicator must take an active and inquisitorial role, means the adjudicator must stop before acting as an advocate for one party. Related to that is the issue of fairness to the other party.

There could be an issue of procedural fairness if the adjudicator steps into the arena to assist one party but not the other. This is unlike Charter cases in criminal law where the trial judge has an obligation to raise Charter issues for the benefit of an accused person. [ 18 ] I do not consider that the adjudicator has the role the Appellant suggests for these reasons. It is not up to the adjudicator in my view to raise legal issues but to be active and inquisitive to make sure that the adjudicator has all of the facts before him that the self- represented person should put in evidence.

In this case, I note that the Adjudicator did suggest that Mr. Cragg should appear, but he did not. [ 19 ] I leave for another day the issue whether relief from forfeiture is one of the principles that apply in issues of residential tenancies. I note it was not raised with the Adjudicator and no case authorities were provided to the Court. [ 20 ] I also would have to be satisfied that the discretion not to give relief from forfeiture, if it was even possible for him to do that, was improperly exercised. [ 21 ] In this case there were arrears of rent which led to the landlord being entitled to possession.

I am not satisfied that there was much room for the exercise of discretion. This is so even if the Adjudicator did have to consider the issue of relief from forfeiture (which I have not concluded he must). [ 22 ] The final issue raised on the Appellant ’ s behalf is with respect to the Notice to Quit. The Appellant says there was an invalid Notice to Quit. The Residential Tenancies Act , R.S.N.S. 1989, c. 401 in section 10(8) provides that no Notice to Quit can be given to a tenant with tenure unless the Director so orders.

As I have said, the Small Claims Court Adjudicator has the same powers as the Director in that regard. [ 23 ] The Adjudicator ’ s conclusion was that rent was in arrears by the tenured tenant and vacant possession should be given. The tenant has notice of that determination and brought this appeal. The notice that premises must be vacated flows from the decision of the Adjudicator. It is not a precondition to it. [ 24 ] This is an unfortunate result for Mr. Cragg and his partner.

I cannot conclude that there was any error of law in the decision of the Adjudicator. [ 25 ] The Appellant will have until August 31, 2012 at noon to vacate the property. The Respondent will have access to the unit in the interim to show it to prospective renters. The rent is to be paid on July 1, 2012 and August 1, 2012 for those months. Justice Suzanne M. Hood