IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Opus 3 Investments Ltd. v. Schnare, 2009 NSSM 12
Date: 20090423
Claim: 307728
Registry: Halifax
Between:
Opus 3 Investments Ltd.
Appellant
v.
Heather Schnare
Respondent
Adjudicator: J. Scott Barnett
Heard: April 6, 2009
Written Decision: April 23, 2009
Counsel: Opus 3 Investments Ltd., Self-represented
Heather Schnare, Self-represented
By the Court:
[1] INTRODUCTION: The Appellant Landlord, Opus 3 Investments Ltd. (the Landlord), appeals from an Order of the Director of Residential Tenancies dated February 13, 2009.
[2] The Order directs the Landlord to pay to the Respondent Tenant, Heather Schnare (the Tenant), a sum of money (as a rent rebate) due to the presence of bed bugs in the leased premises during the first two months of the lease term.
[3] The bed bugs continued to be a problem at the time of the hearing before the Residential Tenancy Officer on February 5, 2009. As a result, the decision further requires the Landlord to provide a rent rebate to the Tenant in a stipulated monthly amount until a licensed pest control agency confirms that the bed bug problem has not only been treated but also remedied in its entirety.
[4] Finally, the Residential Tenancy Officer refused the Landlord’s request that the tenancy be terminated.
[5] The Landlord asserts that not all of the documents presented on its behalf at the hearing before the Residential Tenancy Officer were taken into consideration. It also argues that some of the Tenant’s claims were unreasonable.
[6] At the appeal hearing before me, Catherine Loftin, who described herself as the owner of the Landlord, and Lori Lane, the supervisor of the building in which the leased premises are located, appeared on behalf of the Landlord.
[7] The Tenant also appeared and represented herself. She argued that the Order of the Director ought to stand and that the Landlord’s Appeal ought to be dismissed.
[8] FACTS: Catherine Loftin and Lori Lane testified on behalf of the Landlord while Heather Schnare testified on her own behalf.
[9] The parties entered into a standard form residential tenancy written lease and the Tenant moved into the leased premises, a three bedroom apartment, sometime between December 7, 2008 and December 15, 2008. Rent was set at $640.00 a month, due on the first day of each month. The rental term was one year.
[10] On or about December 27, 2008, the Tenant saw a bug that she later identified through an internet search as a bed bug, crawling under the Christmas tree in the leased premises. The Tenant also found bed bugs in other places in the leased premises such as the bathroom, living room and all three bedrooms.
[11] The Tenant contacted the Nova Scotia Department of Health and she says that she immediately went to speak to Lori Lane, the building supervisor who resides in the same building, about the bed bugs. She subsequently wrote a letter dated December 29, 2008, to Ms. Loftin.
[12] In that letter, the Tenant requested that the Landlord hire a reputable pest control company to fumigate the leased premises, at no cost to the Tenant. She also alleged, based upon a discussion she had with an unidentified person, that the apartment she was living in had been infested with bed bugs even before she and her three children (all under the age of ten) were allowed to move in.
[13] It is obvious that the Landlord did accept that bed bugs were present. However, the Landlord initially took the position (in a letter to the Tenant dated January 5, 2009) that the bed bugs were not the Landlord’s responsibility because they were a “self-inflicted problem” and not a “structural problem (as roaches would be)”. The Landlord also indicated that if a tenant is on social assistance, the government pays the full cost of taking care of the problem.
[14] Upon learning of the Landlord’s initial response, the Tenant became very angry and she was of the view that the Landlord should take care of the problem at the Landlord’s expense.
[15] Even after the letter of January 5, 2009 was sent to the Tenant, the Landlord remained in contact with an extermination company who, in an email dated January 6, 2009 and sent to Ms. Loftin, provided an explanation as to how bed bug problems can be addressed as well as the steps that a tenant should follow before a professional bed bug treatment can take place.
[16] In a letter to the Tenant dated January 8, 2009, the Landlord offered to “void” the lease on two weeks’ notice from the Tenant, given the Tenant’s unhappiness with the situation.
[17] In response, the Tenant indicated that she had no intention of moving until the bed bug problem was rectified to her satisfaction. At the hearing before me, she expressed concern that the bed bugs would simply follow her to her next residence given that they can live in mattresses, living room furniture, etc. that she would be taking with her.
[18] On January 9, 2009, Ms. Loftin and Ms. Lane went to the Tenant’s apartment to discuss what procedures could be carried out to rectify the bed bug problem. Ms. Loftin testified that Ms. Schnare became verbally abusive. The contents of the discussion (as alleged by the Landlord) are contained in a letter dated January 10, 2009 that was sent by the Landlord to the Tenant.
[19] In the letter, the Landlord specifically denies that there was a bed bug infestation before the Tenant moved into the leased premises. Ms. Loftin maintained this denial at the hearing before me.
[20] There was an apparent misunderstanding between the parties regarding the process to be followed in connection with bed bug extermination. As a first step, the Landlord hired a handyman to enter the Tenant’s leased premises in order to caulk every opening in the baseboards, electrical outlets, kitchen cupboards, etc. but the Tenant refused him entry. The Tenant believed that the Landlord was going to carry out a bed bug extermination “on the cheap” by paying an unqualified person to carry it out as opposed to hiring a properly qualified extermination company.
[21] The Landlord also arranged for an extermination company to attend at the leased premises. On January 15, 2009, the company, Affordable Pest Control, confirmed that it would (and it subsequently did) carry out a bed bug treatment on January 19, 2009 in the leased premises. There is no dispute that, in advance of the treatment, the Tenant did properly follow the instructions provided by the extermination company.
[22] The instructions were quite detailed and also were undoubtedly quite disruptive and inconvenient for the Tenant. For example, the Tenant was directed to remove all bedding from the beds and put it into garbage bags, along with all clothing from the closets and dresser drawers (to be subsequently washed and/or dry-cleaned). She was instructed to vacuum the insides of all box springs and all seams of the box springs and mattresses. She was asked to remove all curtains from the windows.
[23] The first treatment did not completely eradicate the bed bug problem. Ms. Schnare called the extermination company back to her apartment and another treatment was carried out on February 23, 2009. It is not clear who paid for this subsequent treatment. There is information to suggest that, by that point, the Tenant was not complying with the recommendations that mattress covers be put on the beds or that all items be removed from closets before the extermination company carried out the second bed bug treatment.
[24] At the appeal hearing before me, the Tenant maintained that the bed bug problem remains. She and her children have been living out of garbage bags and boxes for some time. She repeatedly washes all of their clothing and bedding and throws out their pillows in unsuccessful attempts to get rid of the bed bugs. She regularly vacuums and steam-cleans the beds, the sofa and the chairs.
[25] The Tenant testified as to the stress that has been placed upon her and how she and her children are virtual social pariahs since no one wants to come to their apartment to visit nor does anyone want the Tenant or her children to come to visit.
[26] Moreover, the Tenant resents the suggestion that she is responsible for the bed bugs being in the leased premises. She maintains that the bed bugs were present before she moved into the leased premises but this allegation is based upon hearsay and the Landlord denies that there was a pre-existing bed bug problem.
[27] On top of all of the foregoing, the Tenant has sustained numerous, noticeable bed bug bites over her body.
[28] As I understand it, the Tenant is now withholding rent from the Landlord, and not just the mandated rent rebate set by the Residential Tenancy Officer. The Tenant plans to withhold the rent until the bed bug problem is resolved.
[29] Both the Landlord and the Tenant made Applications to the Director and a Residential Tenancy Officer heard those Applications concurrently on February 5, 2009.
[30] The outcome of the hearing before the Residential Tenancy Officer was that the Landlord’s Application for termination of the tenancy was denied and the Tenant’s Application for a rent rebate was allowed.
[31] With respect to the Tenant’s Application, the Residential Tenancy Officer ordered that the Landlord pay $500.00 to the Tenant for the period between December 7, 2008 and February 6, 2009 as a rental rebate “in lieu of the costs, and inconvenience” incurred by the Tenant. The Residential Tenancy Officer also indicated that the Landlord was “responsible to provide the rebate until such time as they [sic] provide Heather Schnare with confirmation in writing from a licensed pest control agency that the problem has not only been treated, but remedied in its entirety.”
[32] ISSUES: First, what is the applicable standard of review with respect to the decision of the Residential Tenancy Officer as reflected in the Order of the Director? Second, should the Tenant be entitled to a rent rebate? Third, should an Order terminating the tenancy be granted?
[33] STANDARD OF REVIEW: Despite authorities that might suggest otherwise, I believe that the weight of the case law indicates that a decision of a Residential Tenancy Officer is not entitled to any deference on an appeal. In fact, an appeal to the Small Claims Court from an Order of the Director of Residential Tenancies requires a hearing de novo.
[34] Reference can be made to the decision of Justice Freeman for the unanimous Nova Scotia Court of Appeal in MacDonald v. Demont, 2001 NSCA 61.
[35] At the time of that decision, appeals from Orders of the Director of Residential Tenancies were made to the Residential Tenancies Board pursuant to 1997 amendments to the Residential Tenancies Act, R.S.N.S. 1989, c. 401, and, in particular, Section 17C. I note that this section was further amended in 2002 and the only true substantive change was that the Small Claims Court was substituted for the Residential Tenancies Board. In all other material respects, the wording of Section 17C remains the same as it was at the time of the decision in MacDonald v. Demont (with the minor addition of a provision with respect to service of documents).
[36] In MacDonald v. Demont, the Nova Scotia Court of Appeal took the opportunity to review the residential tenancy appeals procedure in light of the 1997 amendments to the relevant statute.
[37] The Court summarized the basic position of the appellant tenant as follows at paragraph 10:
“The appellant submits that the hearing before the [Residential Tenancies] Board is the first stage at which considerations of procedural fairness come into play. The Director’s order could be based on information that arose in the course of the Director’s investigation, or mediation attempts, to which the parties may have had no notice or opportunity to reply. Therefore the Board should not consider any information received as the result of proceeding before the Director, and the Board cannot adopt or defer to the Director’s conclusions. While the statute does not specify that the hearing before the Board be a hearing de novo, such a hearing is the only means of ensuring that the evidence considered by the Board is not tainted by unfairness.”
[38] It is clear that the Court of Appeal accepted the appellant’s argument that deference should not be accorded by the Board to the decision of a Director under the Residential Tenancies Act for reasons of procedural fairness: see paragraph 13. It is also clear that the Court of Appeal required that the Residential Tenancies Board hold a hearing de novo and that the Board make an independent adjudication based upon findings of fact made in light of the evidence presented to the Board.
[39] I note that the instructions that accompany Notices of Appeal in residential tenancy matters clearly state, under the heading “How to prepare for a hearing,” that:
“An appeal from a Residential Tenancies Director’s Order is a brand new hearing. You must present all arguments and evidence at this appeal hearing including any new evidence that was not presented at the Residential Tenancy hearing.
“An appeal is decided on the evidence provided at the hearing. You must arrange to bring witnesses and important papers, documents, and other evidence for the adjudicator on the day of the hearing¼.”
[40] These instructions appear to follow the Court of Appeal’s suggestion that similar such wording be set out on notices of appeal in residential tenancy matters: see para. 17.
[41] Two months before the Court of Appeal’s decision in MacDonald v. Demont, Justice Haliburton reached the same conclusions respecting the residential tenancies appeal process in the case of Dowling v. Vanderweit, 2001 NSSC 79. He held, at paragraph 17 as follows:
“The Residential Tenancies Board is authorized to reconsider the entire dispute between the parties under the authority of s. 17C of the Act. While the method of getting before the Board is said to be by way of “appeal” the Board is not confined in its deliberations to anything that may have transpired before it became seized with the process. The hearing before the Board is a hearing de novo and as specified in s. 17C(5) and (6) the parties must be given a “full opportunity ¼ to present evidence” etc. It goes without saying then that the appellant is quite wrong in arguing that the Board
“had no right to interfere with the decision of Mr. Bacon [the Director] without further determining that he had made an error of law or jurisdiction and had thereby erred in law;”
[42] Justice Haliburton continued at paragraph 18:
“The Board was obliged, in fact, to hold a hearing, and to hear the whole matter anew. The Board is obliged to reach its own conclusions based upon the material and evidence presented at that hearing. It is not bound by any conclusions reached by the Director.”
[43] I do not believe that either of the aforementioned cases can be distinguished in this case. The amendments to the Residential Tenancies Act in 2002 do not change, in any substantive way, the appeal process set out in the 1997 amendments, other than that the Small Claims Court has replaced the Residential Tenancies Board.
[44] In the circumstances, it is clear to me that matters heard before this Court on appeal from Orders of the Director are heard de novo and this Court is not bound by any conclusions previously reached in a matter by a Residential Tenancy Officer.
[45] I reach this conclusion notwithstanding the comment contained at paragraph 25 of the decision of the Small Claims Court in Ramsay v. Reit, 2005 NSSM 5. It was held there that it is incumbent upon an appellant in a residential tenancy appeal to provide some evidence or argument that the residential tenancy officer was wrong. With the greatest of respect, I cannot reconcile that statement with the aforementioned authorities by which this Court is bound.
[46] I also take note of another decision of the Small Claims Court in LeBlanc v. Halley, 2006 NSSM 3. That matter involved an application for an extension of time to file an appeal from an Order of the Director of Residential Tenancies to the Small Claims Court. The inference that could be drawn from that decision is that a Residential Tenancy Officer’s decision is entitled to some degree of deference.
[47] The Adjudicator in that case was referred to and applied the Nova Scotia Court of Appeal’s decision in Briand v. Metropolitan Regional Housing Authority, 2002 NSCA 71 that sets out the three-fold test traditionally used to determine whether or not to grant an extension of time to appeal.
[48] The traditional test requires a prospective appellant who has not filed an appeal in a timely way to demonstrate that:
a. there is an arguable case that the court appealed from made an appealable error;
b. there was a bona fide intention to appeal while the right to do so still existed; and
c. there is a reasonable excuse for the delay in launching the appeal.
[49] As noted by Justice Chipman (as he then was), there is also provision for extending the appeal time, even if the foregoing factors are not demonstrated, where justice dictates that an extension of time to appeal is appropriate.
[50] It will be noted that Briand v. Metropolitan Regional Housing Authority was a case involving an appeal to the Supreme Court of Nova Scotia from a decision of the Residential Tenancies Board. It was not a case involving an application for an extension of time to appeal from a decision of a Residential Tenancy Officer to the Residential Tenancies Board.
[51] At the time of Briand v. Metropolitan Regional Housing Authority, there was a very limited scope of appeal from decisions of the Residential Tenancies Board to the Supreme Court of Nova Scotia. Appeals could only be made on questions of law or jurisdiction. The scope of appeal was similar to that which now exists with respect to appeals to the Supreme Court of Nova Scotia from decisions of the Small Claims Court: see Section 32(1) of the Small Claims Court Act, R.S.N.S. 1989, c. 430. Appeals to the Supreme Court of Nova Scotia from Orders of the Small Claims Court do not result in hearings de novo.
[52] In the circumstances, the Supreme Court’s consideration in Briand v. Metropolitan Regional Housing Authority of the merits of the appeal (to the extent it was required in order to determine whether or not there was an arguable case arising from an appealable error by the Residential Tenancies Board) makes sense given the limited scope of appeal.
[53] However, given that a Residential Tenancy Officer’s decision is not entitled to any deference on appeal to this Court, the first part of the traditional three-fold test is not applicable. Consideration of whether or not the Residential Tenancy Officer has made an appealable error is superfluous since this Court must consider the matter anew without regard to Residential Tenancy Officer’s findings of fact or the conclusions reached by the Residential Tenancy Officer from those facts.
[54] By implication, adopting and applying the traditional three-fold test as was done by the Small Claims Court in LeBlanc v. Halley suggests that the Residential Tenancy Officer’s decision and the basis for that decision are relevant because one needs to consider the decision below in the first part of the test in order to identify a fairly arguable, appealable error.
[55] In contrast to the approach taken in LeBlanc v. Halley, the Small Claims Court Adjudicator in Pickford v. Zewdie, 2004 NSSM 38 expressly avoided a consideration of the merits of the appeal when addressing an application for an extension of time to file an appeal from an Order of the Director of Residential Tenancies: see para. 16.
[56] Instead, the Court stated the following:
“Dealing with [the prospective appellant’s] application, in my opinion, if [the prospective appellant] was to be granted the relief he sought, he had to provide some reasonable explanation for why it took him as long as it did to file his Notice of Appeal. He also had to establish that he did not delay in his attempt to appeal the decision any longer than was appropriate or reasonable in the circumstances.”
[57] The foregoing approach (that omits any reference to the correctness or otherwise of the Residential Tenancy Officer’s decision) seems to better accord with the precedent that is binding upon this Court than does the approach suggested in LeBlanc v. Halley.
[58] Unfortunately, the current state of the law concerning appeals from Orders of the Director of Residential Tenancies is somewhat troublesome.
[59] For example, this Court has seen many residential tenancy appeals that possess no merit whatsoever and they appear to be calculated to do no more than buy the appellant some time in the face of an adverse decision of a Residential Tenancy Officer. Such appeals, particularly late-filed appeals, should not be encouraged. It is possible that unscrupulous appellants are and will continue to be emboldened by the fact that grounds of appeal need not satisfy any minimum standard before they are considered at a hearing de novo before this Court.
[60] In addition, the work that the Residential Tenancy Officers do is important and in no way do I wish to diminish the efforts that they undertake in seeking to mediate landlord-tenant disputes or in making decisions in those disputes when no agreement can be reached. Standards of review have been developed over the years in the administrative law sphere. One wonders why the experience that the Residential Tenancy Officers gain by dealing on a daily basis with landlord-tenant matters (which undoubtedly leads to the development of a certain expertise in those matters) should be effectively discounted by failing to require appellants to successfully address some kind of standard of review as one sees in other administrative law matters.
[61] Finally, one wonders about the degree of frustration that a party to a landlord-tenant dispute might experience after learning that the time spent at Service Nova Scotia before a Residential Tenancy Officer is meaningless if the opposing side simply appeals and is automatically entitled to another full hearing of the whole dispute.
[62] That said, the reality is that appeal hearings are generally heard fairly quickly after the Order of the Director is issued and short timeframes are established for both the time during which one must launch an appeal and then, after the appeal is heard, the time during which a decision must be rendered. Moreover, unmeritorious appeals and behaviour that constitutes abuse of the process can be identified relatively easily.
[63] At all events, I am bound by the decisions in both MacDonald v. Demont and Dowling v. Vanderweit. The appeal hearing before me was a hearing de novo. I heard the matter anew, without regard to what may have transpired before the Residential Tenancy Officer in this case, and I have reached my decision based solely upon the evidence and arguments presented by the parties at the appeal hearing before me. There is no applicable standard of review because there is no legal requirement to review the Residential Tenancy Officer’s decision for correctness, reasonableness or pursuant to any other standard.
[64] RENT REBATE ISSUE: Should the Tenant be entitled to a rent rebate in light of the bed bug infestation in the leased premises?
[65] There is insufficient proof that the leased premises were infested with bed bugs before the Tenant moved in with her children. At best, the Tenant presented unverifiable hearsay evidence in that regard, the strength of which is impossible to weigh.
[66] I also note that it was approximately two to three weeks before the Tenant first saw bed bugs after she moved in. This fact does not necessarily mean that bed bugs were not present before she moved in nor does it necessarily mean that the Tenant, her children, or any visitor that any of them invited into the leased premises, is responsible for the presence of bed bugs in the leased premises after the Tenant moved in.
[67] Statutory Condition One (that is deemed to be part of the agreement between a landlord and a residential tenant pursuant to Section 9(1) of the Residential Tenancies Act) provides as follows:
“1. Condition of Premises – The landlord shall keep the premises in a good state of repair and fit for habitation during the tenancy and shall comply with any statutory enactment or law respecting standards of health, safety or housing.”
[68] I was not presented with any information respecting whether or not the presence of bed bugs is contrary to any specific statutory enactment or law respecting health, safety or housing standards.
[69] That said, I am satisfied that a bed bug infestation renders residential leased premises unfit for habitation. While I doubt that any authority is required for that proposition, I was able to locate the decision in Hagan v. M. Bergen Ltd. (c.o.b. Edison Rental Agency), [1984] M.J. No. 72 (Co. Ct.) that reaches that same conclusion; i.e. that premises infested with bed bugs are not “fit for habitation.”
[70] There is no evidence to suggest that the Tenant is in breach of Statutory Condition Four that reads as follows:
“4. 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 willful or negligent act of the tenant or of any person whom the tenant permits on the premises.”
[71] Based upon the evidence that I heard, I am satisfied that the Tenant has largely done what she can to keep the leased premises clean and free of bed bugs.
[72] That said, any attempts to eradicate the persistent bed bug problem in the leased premises will require a certain degree of ongoing co-operation between the Landlord and the Tenant. The Landlord has the right to gain entry to the leased premises upon provision of adequate advance notice to the Tenant to, for example, apply any caulking that is required, in addition to having bed bug treatments carried out and carrying out necessary inspections. It is in the Tenant’s own best interest, and that of her children, that she fully co-operate with that process despite whatever bad feelings towards the Landlord she may have because of her view that the matter was inappropriately handled when she first notified the Landlord of the bed bug problem.
[73] In the face of a dearth of evidence that the Tenant is somehow even partially responsible for the initial presence of the bed bugs in the leased premises, financial responsibility for addressing the bed bug infestation and arranging for the further necessary treatment(s) to be carried out falls upon the Landlord in accordance with Statutory Condition One.
[74] The question then becomes whether or not a rent rebate is appropriate for what has been, as the Tenant put it, “just a nightmare.”
[75] There is no question that the Tenant has endured a certain degree of inconvenience, trouble and expense. I am satisfied, however, that the Landlord has not ignored the problem. It did ultimately attempt to have the matter addressed, even though a successful result has not yet been obtained. There is no question that bed bugs are tenacious pests and that it can be very difficult to eradicate them.
[76] In the circumstances, I am prepared to allow for a rent rebate of $500.00 for the Tenant’s past stress and aggravation over the past few months and I will order the Landlord to pay that sum to the Tenant.
[77] I also order that the Tenant immediately comply with the lease by paying any outstanding past rent owed to the Landlord that she has withheld.
[78] I am not prepared to order any ongoing rent rebate. I will simply order that the Landlord comply with Statutory Condition One.
[79] TERMINATION OF TENANCY ISSUE: The Landlord seeks termination of the tenancy apparently because of noise complaints.
[80] The Landlord’s witnesses did make reference to noise complaints against the Tenant at the hearing before me, but the Landlord did not fully develop this evidence. What evidence there was does not support a finding of any breach by the Tenant of any condition of the lease in question (e.g. Statutory Condition Three) that might justify termination of the tenancy before the end of the current term.
[81] In the circumstances, I am not prepared to order that the tenancy be terminated on the basis of noise complaints. If the Tenant does not become current in her rent payments, then the Landlord can, of course, apply to the Director of Residential Tenancies for a termination of tenancy on that basis.
[82] CONCLUSION: In light of the result in this case, I am not prepared to order that costs by paid by either party.
[83] An Order will issue accordingly.
Small Claims Court Adjudicator