IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Scotney v. Jeffcock, 2018 NSSM 12
Claim: SCAR No.471237 & Claim: SCAR No.471197
Registry: Annapolis Royal
Between:
SHAWN SCOTNEY
APPELLANT/RESPONDENT
– and –
LEZLEY JEFFCOCK
RESPONDENT/APPELLANT
Adjudicator: Andrew S. Nickerson, Q.C.
Heard: March 14, 2018
Decision: March 27, 2018
Appearances: Mr. Scotney, self-represented
The Defendant, self-represented with the assistance
of Dorothy Myles
DECISION
Background
[1] This matter comes before me as a residential tenancies appeal. Ms. Jeffcock applied to the tenancies officer for compensation for a significant number of belongings that she claimed were improperly taken and destroyed at the end of her tenancy by the landlord. The tenancies officer allowed a small portion of the tenant’s claim. Both parties were unhappy with the tenancy officer’s decision and both parties have appealed. Ms. Jeffcock filed an appeal received by this court in December 11, 2017 and bears the file number SCAR 471197 and Mr. Scotney also filed an appeal on that same date which bears the file number SCAR 471237. Because both parties are both an appellant and a respondent I will refer to them by their names.
[2] Ms. Jeffcock complains that the tenancies officer did not recognize a substantial portion of her claim. She had claimed the sum of $18,124.15 and of this she was allowed $816.49. Mr. Scotney alleges that he should not be found liable for any amount as he says the items that Ms. Jeffcock is seeking were not in the apartment when he cleaned it out after she had vacated.
[3] The parties agree that Ms. Jeffcock had given her notice to vacate the apartment before the end of August 2017 and her termination date was to be September 30. Both parties agree that the following text exchange occurred between Ms. Jeffcock’s grandson and Mr. Scotney on October 4 and 5, 2017:
Scotney Grandson
October 4, 2017
Hey so my grandmother says she does not have a problem paying another weeks rent in order to have some more time to clean the place out. She told me to ask if that was okay.
Ok
What date
Until the 8th she said
Ok
Are u dropping off funds
She said she gets paid on the 15th
I’m going up to have a look
Where are the keys
She said she has misplaced them. I’m so sorry
Wow
This is gonna be expensive
Heading to lawyers tommr
Sorry dude
Not ur fault
October 5, 2017
Couple options
Lawyer said work a deal to make payments on expenses
Or
Serve her papers and go to court and she will have to pay expenses and fines ??
[4] The evidence of Mr. Scotney was that he arrived at the apartment on approximately the 4th or 5th of October and when he arrived he had expected to see the apartment vacant, but in his words “the place was a mess”. Mr. Scotney testified that Ms. Jeffcock’s grandson had lived at the apartment and was the one who most often gave him the rent and communicated with him. The grandson was a student at Acadia University. Mr. Scotney emphatically stated that when he arrived at the apartment that there were no medications in the apartment and nothing whatsoever in the apartment from the handwritten list which Ms. Jeffcock had provided to both the tenancies officer and to me and is in the Director of Residential Tenancies and in the court’s file and totals the sum of $18,124.15.
[5] Mr. Scotney testified that Ms. Jeffcock’s grandson had assured Mr. Scotney that he and his friends would go to the apartment and clean it out. His evidence was that there were items throughout the house strewn around and there were various items in tubs stored outside in the yard. Mr. Scotney says that he carefully went through all of the items to determine if they had any value including the tubs in the yard. He says the tubs had all leaked and every item in them was severely damaged due to water. He had a dumpster placed outside of the apartment and placed all of what remained in the apartment in the dumpster. The only item which he identified as having value and should be retained was a burial urn containing the ashes, which he retained and was delivered to Ms. Jeffcock.
[6] Ms. Jeffcock testified that she had left the apartment on Saturday, September 30, 2017. On September 30, her grandson and three of his university friends had moved her belongings from the apartment. She said that she had some medical issues and had been in the hospital. She gave the following timeline: September 30 she slept at her new house, October 1 she went to the hospital, October 2 she was out of the hospital, October 3 her grandson obtained a trailer from the rented premises, October 4 the texts with her grandson occurred and October 5 she arrived to see the condition of the property where everything had been removed. She says that she lost thousands of dollars of things including clothes, medications, linens, valuable artifacts and many other items. She stressed the loss of an African carving which she claimed was worth over $5,000.
[7] She said that she had asked to be able to leave her things there until the 15th but did not provide evidence as to how she had communicated this or whether there was any such agreement. She then said that she thought she had until 8 October based on the text exchange between the landlord and her grandson. She went to the apartment on October 4 to clean it out and found that everything had been removed. She said she had funds available to her on 10 October to pay additional rent to allow her to over hold possession of the apartment.
[8] In cross-examination she was asked about the locking of doors when she left and it was suggested to her that the apartment was unlocked when Mr. Scotney arrived. She said that “the boys” had the key. She agreed that all communications had been with her grandson and that her grandson is a key witness. She did not have a telephone of her own. She testified that there had been some sort of a falling out between her and her grandson and she was not at the time of trial in communication with him. She testified that he had gone to Thunder Bay be with or visit his mother for the March break period. She had not made any attempt to subpoena the grandson or require him otherwise to come and give evidence.
The Law and Analysis
[9] It is clear that Ms. Jeffcock had given her notice and was no longer entitled to occupy the apartment as of September 30, 2017. I have carefully reviewed the text messages between her grandson and Mr. Scotney. I cannot conclude that Mr. Scotney had given his agreement for Ms. Jeffcock to retain possession of the apartment for the purpose of removing her things based on these texts. Mr. Scotney clearly asks what date was being requested and how he was to be paid for the additional rent to extend occupation a further week. After asking about funds and being told that Ms. Jeffcock was getting paid on 15 October his response was “I am going up to have a look” and asked where the keys were. The response he got was that Ms. Jeffcock had misplaced the keys.
[10] I am unable to conclude from this exchange that Mr. Scotney agreed to anything. There is no unequivocal agreement to allow the over holding and the texts do not reveal that Mr. Scotney committed to anything. It is clear that any consideration of allowing further time to remove items was based on being paid. That point was not resolved in the texts.
[11] It is fundamental law that the person who puts forward any allegation of fact bears the burden of proving that fact. The standard of proof in a civil case is what is referred to as “the balance of probabilities” which means that that person must establish the fact they want the court to accept is more likely to be true than not. In this case the burden is on Ms. Jeffcock to establish that the items she says were in the apartment were in fact in the apartment.
[12] Ms. Jeffcock was not at the apartment after September 30 and was not involved in any part of the moving. All of the moving took place by her grandson and his friends. Exhibit 6 is a note signed by the grandson stating that all the remaining contents had no value and that Ms. Jeffcock had no intention of paying for any extension of rent on the property and/or storage. Although I am permitted in some circumstances to place weight on hearsay evidence if I consider it to be reliable, I cannot place any weight on this note as Ms. Jeffcock raised concerns that it was motivated by her falling out with the grandson and he did not testify and thereby was not subject to cross-examination.
[13] I therefore am left to try and weigh the evidence as between Mr. Scotney and Ms. Jeffcock. Ms. Jeffcock was not there and did not see what was left in the apartment after her grandson and his friends had removed contents. She therefore is not in a position to give any firsthand evidence of what in fact remained in the apartment. Mr. Scotney clearly denies that anything of value was left. Regrettably for Ms. Jeffcock the quality of the evidence which presents is not sufficiently strong to establish what remained in the apartment on the balance of probabilities. The evidence which she brings to this court is simply insufficient to establish her claim.
[14] A court may make reasonable inferences from proven facts. In this case I am unable to infer that Ms. Jeffcock’s items were at the apartment. The facts are consistent with the items being there but are also consistent with the grandson having removed those items. I just don’t have evidence to make the inference Ms. Jeffcock urges on me.
[15] I have examined the decision of the tenancies officer who allowed a claim for the loss of prescription medication, an antique cedar chest, and a Paderno pan. The residential tenancies officer does not outline in her decision on what basis she determined that these items did in fact remain in the apartment. Based on the evidence before me and my finding as to the burden of proof I do not see how she could have made that determination. She references the appropriate procedures for a landlord disposing of tenant’s property after a tenancy has ended but this must be premised on proof to the required standard that the items were in fact left at the apartment. My assessment of the evidence is such proof is not before the court.
[16] I wish to point out to Ms. Jeffcock that while she may honestly believe that the item she claims were in fact still at the apartment, the burden is on her to produce the evidence to establish that that is true. A court cannot presume or speculate. Courts must have evidence and that evidence must meet the standard of proof required by law. In this case Ms. Jeffcock has simply not produced evidence sufficiently compelling to meet that standard. This does not mean that there is no possibility that she is correct but it does mean that she has not proven her case and cannot succeed in establishing her claim.
[17] I therefore will dismiss Ms. Jeffcock’s appeal and allow Mr. Scotney’s appeal. The decision of the tenancies officer is set aside. I will allow Mr. Scott and the $33 filing fee for this appeal. These reasons apply to both appeals equally and will be placed in both appeal files. I will issue separate orders in each appeal.
Dated at Yarmouth, Nova Scotia, this 27th day of March, 2018.
Andrew S. Nickerson Q.C., Adjudicator