Claim No: 337121
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
ON APPEAL FROM AN ORDER OF THE
DIRECTOR OF RESIDENTIAL TENANCIES
Cite as: Bonhomme v. Can-Euro Investments Ltd., 2010 NSSM 57
BETWEEN:
VANESSA BONHOMME
Tenant (Appellant)
- and -
CAN-EURO INVESTMENTS LIMITED
Landlord (Respondent)
DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on October 12, 2010
Decision rendered on October 14, 2010
APPEARANCES
For the Tenant self-represented
For the Landlord Kelly King, property manager
BY THE COURT:
1 This is an appeal by the Tenant, Vanessa Bonhomme, from an order of the Director dated September 28, 2010, following a hearing on September 20, 2010. In that Order the Tenant and her co-tenant and a guarantor were ordered to pay to the Landlord the sum of $3,098.40, being three months of rent, some cleanup and repair charges, plus an NSF charge, minus the security deposit.
The facts
2 The Appellant, Vanessa Bonhomme, resided in unit 1907 at 10 Horizon Court in Dartmouth, along with her former boyfriend Shawn Conrod, who was a co-signer of the lease along with a guarantor, Jeffery Conrod. The year to year tenancy commenced May 1, 2009 and the lease was automatically renewed for a further year on May 1, 2010.
3 On May 16, 2010, a number of storage lockers in the apartment building were broken into and burglarized. As a result of surveillance photos the police came to suspect that the perpetrator was Mr. Conrod along with an accomplice, whose name was not identified to me. On the 8th of June 2010 a search warrant was executed at the apartment and the police located and seized a considerable amount of what was believed to be the stolen property. Mr. Conrod was charged with a number of criminal offences and placed under an order to stay away from the apartment building.
4 Ms. Bonhomme was away on business at the time of the police action, and had been away on other days during the preceding month. She came home on June 8th and found the apartment in disarray after the search, and came to learn that the police had executed the search warrant.
5 Ms. Bonhomme is adamant that she was not a party to Mr. Conrod’s alleged thievery.
6 The Landlord advised Ms. Bonhomme that in light of what had occurred, it would be changing the locks on the apartment and that she had 48 hours to vacate. Ms. Bonhomme asked to be allowed to continue to rent the apartment by herself, for at least the balance of the month or perhaps several months. This was flatly denied.
7 Ms. Bonhomme did what she could to remove her belongings and relocate herself within the 48 hours.
8 The Landlord undertook a major cleanup of the apartment, changed the locks and eventually rented the apartment effective September 1, 2010. In its application to Residential Tenancies it was successful in recovering three months’ rent - June, July and August - plus the cost of cleaning up the apartment and some incidental charges.
9 Ms. Bonhomme was eventually also charged with being in possession of stolen property, although her case has been sent into the adult diversion program. She maintains that she had no idea what her ex-boyfriend was up to. She testified, and I accept, that she has a good and responsible job and is a law-abiding citizen.
10 Ms. Bonhomme argues that she should have been allowed to continue to rent the apartment. She says that she could afford the rent herself, and that she was willing to honour the lease.
11 The Landlord’s position is that it had to get rid of both of the tenants in order to restore confidence and for all of its other tenants to feel safe.
Analysis and findings
12 I believe that the facts supported the Landlord’s position insofar as it applied to Mr. Conrod, but not to Ms. Bonhomme. It was Mr. Conrod who was caught on surveillance footage, and who the police immediately charged and had barred from the premises. Once he was barred from the premises, the lease (as against him) could be said to have been abandoned.
13 Ms. Bonhomme would not be the first person to be unaware of what her partner was doing, or even if she had some knowledge or suspicion, to be too intimidated or conflicted to do anything about it. In law and in fact she is her own person, to be judged on her own actions and merits.
14 Under the lease, the two individuals were jointly and severally responsible for the tenancy. Even if Mr. Conrod forfeited or abandoned all such rights, that does not mean that his co-tenant forfeited all of her rights. Had Mr. Conrod simply disappeared into the night, the Landlord would have regarded Ms. Bonhomme as fully responsible.
15 In terms of any criminal activity, Ms. Bonhomme is entitled to the presumption of innocence. Had the Landlord wished to terminate the tenancy on the basis that the tenant posed a threat to the safety or security of the other tenants, using the procedure under s.10(7A) of the Residential Tenancies Act[1], it would have had to serve a notice to quit on five days notice, and the matter could eventually have gone to a hearing to determine on a balance of probabilities whether the tenant was in breach of the terms of the lease, to the extent that termination of the tenancy was appropriate. Had that finding been made, changing the locks would have been part of a reasonable mitigation effort.
16 By giving Ms. Bonhomme 48 hours to leave, and changing the locks at that point without any order of the Residential Tenancies Board permitting it to do so, I am satisfied that the Landlord terminated the tenancy outside of its legal rights and, in so doing, forfeited the right to any further rent. Ms. Bonhomme’s obligation to pay rent ended on June 9, 2010. I do not see any justice in holding her responsible to pay rent for the two days (June 10 and 11) of scrambling to find other arrangements and move all of her stuff out.
17 I am also unwilling to hold Ms. Bonhomme responsible for cleanup costs, given that she was not given enough time to fulfill her responsibility.
18 Ms. Bonhomme shares responsibility for a $25.00 NSF charge, as a result of the June cheque bouncing. I accept that this only occurred because Mr. Conrod unilaterally drained the couple’s joint account for reasons of his own, without regard for the effect on his tenancy or on Ms. Bonhomme. It appears that a July cheque also bounced, but in light of my findings that Ms. Bonhomme is not responsible for July rent, that charge is not recoverable as against Ms. Bonhomme.
19 In the result, Ms. Bonhomme is responsible to the Landlord for nine days of rent totalling $312.00, and $25.00 for the NSF cheque, for a total of $337.00.
20 Normally I would apply this against the security deposit, which would result in a refund, but this is an unusual situation where the Appellant is only one of the tenants. My decision does not impact on the Landlord’s rights against Mr. Conrod, or against the individual who guaranteed the lease, Jeffrey Conrod. As far as this Court is concerned, the Landlord’s remedies against the Conrods are still in force and they are entitled to the benefit of applying the security deposit as ordered by the Tenancy Officer.
21 As such, my order will rescind the order of the Director as against Ms. Bonhomme only, and order her to pay to the Landlord the sum of $337.00.
22 As these amounts assessed against Ms. Bonhomme are some of the same amounts included in its order against the Conrod’s, it goes without saying that the Landlord is not entitled to double recovery and may not in the aggregate recover any more than the total of the original order of the Director.
Eric K. Slone, Adjudicator
[1]10 (7A) Notwithstanding subsections (1), (6) and (7), where a tenant poses a risk to the safety or security of the landlord or other tenants in the same building on account of the contravention or breach by that tenant of any enactment, notice of termination may be given to the tenant effective not earlier than five days, or such shorter period as the Director may direct, after the notice is given.