20011023
S.AR. No: 02021
IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: Bent v. MacLean, 2001 NSSC 144
BETWEEN:
HENRY BENT, LANDLORD
APPELLANT
- and -
SHAWN DOUGLAS MACLEAN
RESPONDENT
HEARD: At Annapolis Royal, Nova Scotia on September 4, 2001
BEFORE: The Honourable Justice Charles E. Haliburton
SUBJECT: Appeal of Residential Tenancies Board Order
DECISION: The 12th day of October, A.D. 2001
ATTENDING: Henry Bent, the Appellant, for himself
Shawn MacLean, the Respondent, for himself
D E C I S I O N
This appeal comes to me under Section 17 E of the Residential Tenancies Act, RSNS Chapter 401. By issuing it’s Practice Memorandum No. 16, the court has provided for the procedure to be followed in bringing such an appeal. The Memorandum imposes obligations on the parties and as well on the Residential Tenancies Board.
This appeal is brought by the landlord from a decision of the Board which had ordered the release of the personal property of the tenant which the landlord was retaining in the premises. Many months’ rent (totaling $7,000.00) are owing to the landlord. I formed the impression upon hearing the parties that the landlord had been patient, if not charitable, in relation to permitting the tenancy to continue in the absence of any payment of rent; but that the chattels retained have no significant monetary value. The chattels, such as they are, are at least technically subject to a secured claim by a lending institution and, in any event, the tenant has declared bankrupcy. At some point the tenant appears to have abandoned the premises or else his presence there was so intermittent as to give the impression to the landlord that he had abandoned. In the record provided by the Residential Tenancies Board there are no findings of fact with respect to these matters and no conclusions regarding their impact on the tenancy or the rights of the parties.
Frankly my initial reaction to the Appeal was to dismiss it on the technical basis that the Appeal had not been filed in the time allowed by our Practice Memorandum. I was encouraged in that view by my general conclusion that no significant miscarriage of the rights of the landlord had occurred, even if all his arguments proved to be valid. I have, however, concluded that this may be an appropriate case in which to attempt to set some guidelines for the Residential Tenancies Board, notwithstanding that it will add to the inconvenience and delay experienced by the parties.
Section 17 D of the Residential Tenancies Act prescribes the duties of the Board on Appeal. It requires that the Board “compile a record of a hearing”. The record is to consist of:
a) the Order of the Director that was appealed from;
b) the Notice of Appeal to the Board;
c) the Notice of Hearing by the Board;
d) any written submissions and exhibits received by the Board; and
e) the Order of the Board and any reasons for the Order.
Paragraph 7 of Practice Memorandum 16 requires that upon receiving a Notice of Appeal, the Residential Tenancies Board shall provide this court with the following:
a) indication of the date and place of the Board Hearing together
with the names of the Board members present at the Hearing;
b) a record of the Board’s findings of fact and conclusions on:
(i) service of the Notice of Hearing on the
appropriate parties and the dates thereof,
(ii) the persons present at the Board hearing,
(iii) whether a tenancy exists;
c) if a tenancy exists, a record of the Board’s findings of fact and
conclusions on:
(i) the type and duration of the tenancy,
(ii) the term of the tenancy,
(iii) when the tenancy ended,
(iv) when the premises were vacated,
(v) whether a written lease was signed, and
(vi) whether a copy of the Residential
Tenancies Act was provided to the tenant;
(d) a summary of the evidence of all witnesses together with copies
of any exhibits;
(e) a statement as to the findings of fact and conclusions as determined
by the Board; and
(f) a copy of any order made.
My reading of the Practice Memorandum is that it reflects the Court’s interpretation of what would constitute “a record of a hearing” as provided for at
Section 17 D (2) of the Statute. Interpreted in the light of Practice Memorandum 16, the record provided by the Board in this case has significant deficiencies. There is no report on:
1) the type and duration of the tenancy,
2) the term of the tenancy,
3) when (or indeed whether) the tenancy has ended,
4) when (and again, whether) the premises were vacated,
5) whether a written lease was signed,
6) whether a copy of the Residential Tenancies Act was
provided to the tenant.
A significant issue voiced by both parties in the Appeal related to whether the
tenant had abandoned the premises, or whether he was prohibited entry. This issue
required a finding of fact by the Board.
In the record provided there is no reference to what evidence may have been given the Board by any witness, if any witnesses were heard. In view of the fact that exhibits were tendered to the Court on the Appeal it would be curious if no exhibits were tendered to the Board.
Finally, while the landlord has been found to be in violation of Sections 5 (1), and (2) and statutory condition 6 as described in Section 9 (1) of the Act, those conclusions are not supported by any findings of fact which would permit this Court to arrive at a reasoned conclusion as to whether the decision reached constituted an error of law of not.
The Board has clearly erred in law in concluding that the landlord violated Section 5 (2) which describes an obligation of the tenant. Under the heading Disposal of Property of Tenant it provides:
“nothing in (the previous Subsection) entitles the tenant to leave personal
property in the residential premises after the tenancy has terminated.”
Similarly, a finding that the landlord has failed to mitigate his losses (statutory condition 6, Section 9 (1)) will affect the landlord’s monetary claim but cannot be properly be described as a “violation” of the terms of the lease.
The finding that the landlord is “in violation of Section 5 (1) of the Act” is more problematic. That Section provides as follows:
“a landlord shall not hold or dispose of a tenant’s personal property
except in accordance with an Order made pursuant to Section 17
or except as otherwise authorized by law.”
The statutory reference to Section 17 appears to be a misprint unless it simply refers to the possibility of the Director having made an Order relating to the disposition of personal property pursuant to a “mediated settlement.”
In fact, the landlord does have specific statutory authority to take and dispose of the property of the tenant upon complying with requirements set out in Section 5 (3). The requirements there are firstly that the tenancy has been terminated, and secondly,
that the landlord has done an inventory which is filed with the Director.
CONCLUSIONS
As indicated at the outset I suspect that no substantial wrong would result if the decision of the Board were implemented. In the absence of the necessary findings of fact, however, and in view of the interpretation given to the quoted Sections of the Act, I am not able judicially to reach that conclusion. If I understand correctly, but what is not clearly set out in the record, there was before the Residential Tenancies Board only the application of the tenant for the return of his personal possessions. There is no claim by the landlord for unpaid rent. It would seem the Board need not look beyond
the provisions of Section 5 of the Act but before making an Order, the particular terms of the tenancy and if and when it has ended, must be determined.
This matter will therefore will returned to Residential Tenancies Board with a request that the report be amplified by including findings of fact with respect to the type and duration of the tenancy, the terms of the tenancy, when the tenancy ended, when the premises were vacated, whether there was a written lease signed. Since the subject of the dispute is the personal property of the tenant, a finding that such property was left in the premises, and some detail of that property would seem to be required. These findings should be supported by a summary of the evidence of all witnesses together with copies of any exhibits, and conclusions reached by the Board on those facts. To permit a review of the disposition made by the Board, its jurisdiction and process must be founded upon the application(s) before it. Therefore, a brief description of the application or applications brought by the landlord and/or the tenant with respect to which the Board was asked to render a decision must be included to provide that framework.
J.