IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Alderwood Village v. Uwins, 2018 NSSM 40
Claim No: SCCH 474615
BETWEEN:
ALDERWOOD VILLAGE
Appellant/
Landlord
-and –
MICHELLE UWINS
Respondent/
Tenant
Date of Hearing: April
5, 2018;
Date of Decision: April 9, 2018.
Appearances:
Heather Scott appeared on behalf of the Landlord, “Alderwood
Village”.
Michelle Uwins appeared on her own behalf.
Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.
DECISION
(1)
This is
an appeal from the decision and order of Residential Tenancies Officer, Jason
Warham, dated March 22, 2018 denying the Landlord’s claim for payment of money
on the grounds that the issue is res judicata as the matter had been previously
considered in an application and appeal involving the Landlord and Georgina
Stanhope and Dale Kilburn, the previous owners of the mobile home and lot. That
matter was heard by Adjudicator Augustus Richardson, QC, who rendered a
decision on June 15, 2017 in favour of those tenants. (2017 NSSM 17). At the
conclusion of the hearing, I stated that I found Mr. Warham’s reasons
compelling.
(2)
The
matter was appealed by the Landlord on the grounds that the Tenancy Officer
failed to “properly recognize (the) signed contract (between the Landlord and
the Tenant)”. I found that issue more relevant and determinative of the issue, particularly
if I were wrong on the issue of res judicata. I chose to base my
decision on the provisions of the contract.
(3)
At the
conclusion of the hearing, I provided oral reasons for dismissing the appeal,
essentially that the plain language of the lease, the “Community Standards” and
the note contained on the Inspection Report all lead to the conclusion that the
Tenant is not liable for the installation of the vinyl siding. I dismissed the
appeal and indicated I would provide brief written reasons. These are those
reasons.
(4)
The
Appellant has been referred to by various names throughout this proceeding and
the Stanhope matter. At the hearing, I asked Ms. Scott the proper name which
yielded a different answer again. The Appellant was named in the Notice of
Appeal as “Alderwood Village”. I have used this name for this decision and
order, particularly where I found for the tenant. Should she wish to appeal
this decision or bring any applications or appeals in future, Ms. Scott must
use the correct name as found in the records of the Registry of Joint Stock
Companies.
Background
(5)
The background
to this matter is well described by Adjudicator Richardson in paragraphs 3-14
in Stanhope v Alderwood Trailer Village, supra. It is important
to note that I am constrained to findings based on evidence tendered at the
hearing of the matter before me. Some of the evidence considered by my
colleague was not before me in this hearing.
(6)
The
Tenant, Heather Uwins, purchased a mobile home located on a lot known as [address
removed], Lakeside, Nova Scotia. The lot contains a shed which at the time of
purchase, was sided with cedar shingles. The Landlord and Tenant signed a
document entitled “Alderwood Village Land-Lease Community” which purports to be
part of any lease that may be in effect. No other lease was tendered into
evidence. Likewise, the parties did not provide a copy of the Agreement of
Purchase and Sale between the Tenant and Ms. Stanhope and Ms. Milburn. I am
limited to the documentation before me in interpreting “their lease”.
(7)
The
Community Standards document provides as follows:
5.7
Tenant(s) is responsible to maintain the appearance of his/her
home and lot at all times. The yard must be free of car parts, litter, garbage,
junk or other unsightly condition.
6.1 Before a home is listed for resale,
sub-leased or refinanced, the Landlord will complete an Outside Lot
Inspection (an exterior inspection of the home and site, including an Under
the Home Inspection.). If any violation of these Rules or the Residential
Tenancies Act is found, the Landlord may refuse to accept the application for
resale or sub-lease until all violations have been corrected. The Tenant hereby
acknowledges that such a refusal by the Landlord will be a valid reason for
withholding consent to the sub-lease by the landlord.
6.4 All homes sold
or rented on Community premises must comply with COMMUNITY STANDARDS (SCHEDULE
“A”) before the sale or rental agreement is finalized.
(8)
The
relevant sections of Schedule A provide the following:
“Sheds
1.1 Size may be no larger than 10' x 10', 8' high plus peak, constructed of new
lumber, pitched or barn style, shingled roof, vinyl siding only.
1.5 Base
of she had to be skirted worth height exceeds 8”.
1.6 Wood doors, or wood trim, are to be painted with two coats of exterior paint or stain.
1.8 Sheds not in compliance
with the Community Standards will have to be repaired or removed from the park.”
(9) The document was signed by the tenant on April 15, 2016.
(10) Prior to the sale of the home, the Landlord completed a document entitled Home for Resale Lot Inspection. That document lists a number of items too lengthy to list here. It was addressed to Ms. Stanhope and dated February 17, 2016. The document was copied and notes written thereon indicating a number of items which were not finished, including the storage shed. The note included the need to have vinyl siding installed and replace rotten eaves and trim. In the top right-hand corner of the document appears the following notation:
“April 13/16” “All
items not complete are to be done by June 15/16 & by signing below become
responsibility of purchaser.”
(11)
The
notation is initialed by Ms. Scott. The document is signed on April 15, 2016 by
Michelle Uwins.
(12)
According
to the parties, the vinyl siding was installed on April 22, 2016. The work was
paid by Ms. Stanhope and Ms. Milburn under protest but at the insistence of the
Landlord. Those tenants took exception and filed an application with the
Director of Residential Tenancies. The Residential Tenancies Officer dismissed
the application. The tenant successfully appealed the application before
Adjudicator Richardson. He awarded them their money back ($1079.17) together
with costs of $100, for a total judgment of $1179.17.
(13)
The
Landlord demanded payment from the tenant on the strength of the notation contained
on the Lot Inspection Report. Ms. Uwins refused to pay. The application was
made by the landlord before Mr. Warham.
(14)
An appeal from the decision of a Residential Tenancies Officer is
a new hearing based on the evidence presented before the Small Claims Court Adjudicator.
The evidence presented usually consists of that presented to the Residential
Tenancies Officer (in whole or in part) and any additional evidence the parties
seek to adduce. An Adjudicator may confirm the Order of the Residential
Tenancies Officer or vary it as he
or she considers just and appropriate based on this evidence.
Issues
-
What
were the Tenant’s responsibilities with respect to the siding on the shed on
the property?
- Were those obligations fulfilled?
The Law
(15)
There
are several issues for consideration before me. Like Adjudicator Richardson in
the Stanhope case, I am not certain if the conditions sought to be
imposed upon the Tenant are reasonable and enforceable in accordance with the Residential
Tenancies Act. As noted at the outset of this decision, I am of the view
that the matter can be resolved by the plain language of the documents signed.
Firstly, I shall briefly comment on the application of the doctrine of res
judicata.
Res Judicata
(16)
The
doctrine of res judicata is designed to prevent plurality of actions. It
creates two forms of estoppel, cause of action estoppel and issue estoppel. They
were succinctly summarized by Justice Jill Hamilton in Saulnier v Bain,
2009 NSCA 51:
“When an issue has
been the subject of previous adjudication were when a party had an opportunity
to raise an issue in a previous action, and in all the circumstances, should
have raised that issue, a cannot be the subject of another action.”
(17) In other words, the Tenant contends the issue had been previously decided by Adjudicator Richardson in the Stanhope case, and therefore, the matter must not be decided again. That would decisively conclude the matter regardless of any contractual term.
(18) As noted previously, I
found Mr. Warham’s decision on behalf of the Director of Residential Tenancies
to be compelling. Essentially, by seeking the same payment from Ms. Uwins, the Landlord
is seeking to recoup that which it was unsuccessful in recovering from the
previous tenants. Curiously, Ms. Scott somehow included the costs award in her
application and appeal which would not have been awarded in any event.
(19)
The
circumstances in this case involve similar issues to those decided in that case
but there also a number which are different. As noted above, I have dismissed
the appeal on the basis of the language of the documentation used in the
inspection.
Interpretation of Documents
(20)
The documentation
in this landlord-tenant relationship consist of the document entitled Alderwood
Village Land-Lease Community including the schedules pertaining to
Community Standards and pets. For the purposes of this hearing, I find this to
be the entire lease. In addition, it includes the “Lot Inspection” completed on
April 15, 2016. The law pertaining to interpretation of contract has been
quoted numerous times by the courts in Nova Scotia and elsewhere across Canada.
I had occasion to summarize the case law in Nova Scotia in Bank of Montreal v.Kincade, 2014 NSSM 50:
There are several legal principles for consideration when interpreting a contract. The general rule is as stated by the Supreme Court of Canada in Eli Lily and Co. v. Novapharm Ltd., [1998] 2 S.C.R. 129, where Justice Iacobucci stated the following for the majority of the Court:
“The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independent place in this determination....
...Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face....
...When there is no ambiguity in the wording of the document, the notion in Consolidated-Bathurst that the interpretation which produces a “fair result” or a “sensible commercial result” should be adopted is not determinative. Admittedly, it would be absurd to adopt an interpretation which is clearly inconsistent with the commercial interests of the parties, if the goal is to ascertain their true contractual intent. However, to interpret a plainly worded document in accordance with the true contractual intent of the parties is not difficult, if it is presumed that the parties intended the legal consequences of their words.”
However, when considering the wording of standard form agreements, in the event of ambiguity, one turns to the principle of contra proferentum whose purpose, as stated by Iacobucci, J. in NovaPharm at paragraph 53, is:
“to protect one party to a contract from deviously ambiguous or confusing drafting on the part of the other party, by interpreting any ambiguity against the drafting party.”
As stated by the Nova Scotia Court of Appeal in Ryan v. Sun Life Assurance, 2005 NSCA 12, per Cromwell, JA (as he then was):
“Its operation depends, therefore, on a finding of ambiguity in the language to be interpreted. Ambiguity in this context means that a term in the contract is reasonably capable of more than one meaning: see for example Chilton v. Co-operators General Insurance Co. (1997), 143 D.L.R. (4th) 647 at 654 (Ont. C.A.).”
(21) Previous decisions of the Small Claims Court are not binding on me. However, the cases of superior courts cited within them certainly are. The objective in this matter is to consider the wording of the notation, "All items not complete are to be done by June 15/16 & by signing below become responsibility of purchaser".
(22) In my view, the document is clear and unambiguous on its face. The plain meaning of the document was to impose on the tenant the requirement to complete those items not finished by June 15, 2016. The subjective intent of one party is not relevant. There must be mutuality of agreement. If it had been the intent of the parties for Ms. Uwins to indemnify the Landlord for the siding regardless of when the work was completed, a stipulation to that effect could have been made. However, it was not.
(23)
In the
event that I had found the document to have been ambiguous rather than clear, I
find this is a proper case to apply the doctrine of contra proferentum and
interpret the language against the drafter, in this case, the Landlord, in
favour of the Tenant.
(24)
Accordingly,
I find the condition had been met, namely the work was completed by June 15,
2016 and therefore no liability for the repair is found against the Tenant.
Summary
(25)
Based
on the foregoing, the appeal is dismissed.
(26)
As
stated during the hearing, s. 17D(2) of the Residential Tenancies Act
limits costs awarded to filing fees for the appeal and the application to the
Director of Residential Tenancies. Both of these costs were borne by the
Landlord. Therefore, each party will bear their own costs.
(27)
An
order shall be issued accordingly.
Dated at Halifax, NS,
on April 10, 2018;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Landlord(s)
Copy: Tenant(s)