Doyle v. Topshee Housing Co-operative Ltd., 2012 NSSC 371

SUPREME COURT OF NOVA SCOTIA Citation: Doyle v. Topshee Housing Co-operative Ltd., 2012 NSSC 371 Date: 20121011 Docket: Ant. 388319 Registry: Antigonish Between: Ronalda Doyle Appellant v. Topshee Housing Co-operative Limited Respondent DECISION Judge: The Honourable Justice J. E. Scanlan Heard: August 16, 2012, Pictou, Nova Scotia Counsel: Sharon Goodwin, Solicitor for the Appellant Ian Dunbar, Solicitor for the Respondent By the Court :

[1] The Court has been asked to consider the issue as to whether the Appellant should be entitled to admit fresh evidence on thehearing of a Small Claims Court appeal. The case under consideration arises from the Appellant’s tenancy in a co-op housing unitmanaged by Pathways Housing Services Cooperative Limited. [2] The application is a preliminary step in the hearing of an appeal from the decision of the Adjudicator. That decision orderedthe eviction of the Appellant and her three children from her unit in a co-op housing premises.

The Appellant has resided in the housingunit since March, 2003. [3] During submissions on this application the parties agreed that although the original action against the Appellant was due toher arrears in the payment of rent, there are currently no arrears and the rent has been paid in full. Monthly rental payments have beenkept up-to-date. The Appellant argued on an earlier stay application that if she is evicted that she and her three children will have torelocate. She is dependant on Social Assistance and her three children are, according to her submissions, disabled.

At the end ofsubmissions I asked the parties to make an effort to reach a settlement and if they could not then I indicated I would render my decision. The parties indicate they are not able to resolve the outstanding issues. [4] The Court is cognizant of the risk of having fresh evidence admitted on appeals of Small Claims Court matters. The SmallClaims Court Act and regulations do not contemplate an appeal by way of trial de novo. Appeals are to be based on the record. Asnoted in Killiam Properties Inc. V.

Mark Patriquin, 2011 NSSC 338 at para 8 by Justice MacDougall: ...This is not a carte blanche refusal to admit additional evidence but it would only be in very rare and exceptional circumstances thatfurther affidavit evidence would be admitted. There are good policy reasons for this. If affidavits were routinely accepted the appealwould soon morph into a trial de novo. It would be tantamount to an appeal based on a transcript. The Small Claims Court is notrequired to record the evidence. There is no transcript.

To allow affidavit evidence to be filed on appeal to the Supreme Court wold addunnecessarily to the expense of the proceeding. It would also defeat the principle purpose for the Small Claims Court which is toprovide an inexpensive and informal venue for people to present cases without the need to incur the expense of legal representation. [5] The present motion is governed by Civil Procedure Rule 7.27 which states: Evidence on judicial review or appeal:

(1) A party who proposes to introduce the evidence beyond the record on a judicial review or appeal must file an affidavit describingthe proposed evidence and providing the evidence in support of its introduction.

(2) An applicant for judicial review, or an appellant, must file the affidavit when the notice for judicial review or the notice ofappeal is filed, and a respondent must file the affidavit no less than five days before the day the motion for directions is to be heard.

(3) A motion for permission to introduce new evidence must be made at the same time as the motion for directions, unless a judgeorders otherwise. [6] Tests for the introduction of new evidence was stated in the Supreme Court in R. v. Stolar (1988), (SCC),40 C.C.C. (3d) 1. This decision was recently referred to by the Nova Scotia Court of Appeal in Hatfield v. Mader, 2012 NSCA 66 atpara. 22. The Court said:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [ 7 ] On the present appeal the Appellant seeks to introduce a 42 paragraph affidavit plus exhibits into evidence. She suggests this is a complete chronology of the facts in relation to the matter.

In reviewing the affidavit, I note there are a number of difficulties with that affidavit in that the Respondent properly characterizes it as follows: It is replete with accusations directed towards the Department of Community Services and Pathways Housing Services (i.e. paragraph 7, 11, 13(d), 16, 17, 20, 22, 38) and unsubstantiated opinion and hearsay (i.e. paragraph 7, 8, 11, 22, 25, 27, 30). [ 8 ] The Respondent complains the Appellant has not been subject to cross-examination on that affidavit. The Respondent also notes that the affidavit is not fresh evidence.

It deals with evidence entirely within the knowledge of Ms. Doyle both at the original hearing before the Residential Tenancy Officers and at the Small Claims Court. They further argue that it could have been tendered earlier if due diligence had been exercised. [ 9 ] A review of the affidavit makes it clear that the evidence Ms. Doyle seeks to have introduced is evidence that was within her possession and knowledge at the time of the Small Claims Court proceeding.

Although the Respondent questions the credibility of the statements made in the affidavit, it is not for this Court at this stage to assess the credibility of Ms. Doyle although had the Respondent sought to cross-examine Ms. Doyle on the contents of the affidavit, such cross-examination would have been permitted. [ 10 ] In the present case even if the Court were to accept both the submissions of evidence as put forth and included in the affidavit it is not clear that those facts would effect the decision of the Adjudicator.

It would have the affect of transforming the present appeal process into a hearing de novo. [ 11 ] The Respondent has submitted an affidavit sworn July 9, 2012 and purports to explain the complex arrangement as between Topshee Housing Co-operative Limited and Pathways Housing Services Co-Operative Limited. In addition counsel for the Respondent suggests that although Ms. Doyle is in receipt of social assistance and has a very limited income, the co-operative housing unit is operated by or for the Minister of Community Services. Even though Ms.

Doyle is dependant upon Social Services to support herself and her family, it is that same ministry that is instructing him to have Ms. Doyle removed from the premises. The premises are in fact low rental accommodation units provided to people in the need of assistance or low incomes. [ 12 ] It is not clear how this Court could accept the affidavit of Mr. Dunbar other than by way of fresh evidence to be admitted on this appeal.

That evidence would explain the relationship as between Topshee Housing Co-operative Limited, Pathways Housing Services Co-operative Limited and the Ministry of Community Services. [ 13 ] It is difficult to envisage how the Respondent could ask this Court not to accept evidence from Ms. Doyle on this appeal yet urge the Court to accept the affidavits sworn by Mr. Dunbar and referred to above. [ 14 ] I would note that the Adjudicator referred to the fact that there was legislation and corporate bylaws dealing with or governing co-operative housing units.

There is no indication that the Adjudicator was ever provided with the relevant by-laws or agreements. The Adjudicator did say that she was not provided with the relevant legislation. Paragraph 6 of the

Summary Report of the Adjudicator said:

While the Notice of Appeal alleged that a co-operative cannot evict a member without consent, no evidence, argument or authority of any kind, such as legislation or co-op by-laws, was introduced on this point . ... (my emphasis added) [ 15 ] Litigants in the Small Claims Court are not required to provide the Court with applicable legislation although it is helpful. The Adjudicator in this case was required to take judicial notice of applicable legislation.

The legislation in question would have made it clear that the co-ops operate pursuant to by-laws and the applicable legislation. [ 16 ] In the present dispute Ms. Doyle is suggesting that the by-laws and legislation were not properly followed. It is difficult to envisage how the Adjudicator could have rendered a decision absent consideration of the applicable legislation or the co-op by-laws. On the present application, however, the issue is solely as to whether or not I should allow the introduction of fresh evidence. [ 17 ] I am not prepared to allow the introduction of fresh evidence by either party.

I would ask the Respondent, on behalf of the Department of Community Services, to consider whether the Respondent should consent to a new hearing on this matter. The Adjudicator must take judicial notice of applicable legislation even though it was not introduced in the form of evidence by a participant in the Small Claims Court proceeding. To require litigants in Small Claims Court to produce copies of legislation would be an error at law and that appears to be what occurred during the Small Claims Court proceedings.

In addition, if the bylaws were not before the Small Claims Court one must ask how the Adjudicator could determine the issue of whether the bylaws were complied with? [ 18 ] I will leave it to the Respondent to decide if it will continue in asserting it ’ s resistence to the appeal and that issue will be decided on the final hearing of this appeal. J. 10/04/12