Claim No. SCCH 429879

 THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as: Pearson v. Jreige, 2014 NSSM 35

Between:

Jennifer PEARSON

Appellant

STEVE JREIGE

RESPONDENT

ADJUDICATOR: David TR Parker QC

HEARD: August 7, 2014

DECISION: August 8, 2014

1. This was an Appeal from a decision of the Director of Residential Tenancies dated July 24, 2014 and being file number 201402344.
2. This appeal was based on the appellant’s assertion that she did not receive notice or was misled as to notice of the hearing before the Residential Tenancy Director on an Application by the Respondent/Landlord. The Application to the Director indicated that rent was $925.00 per month, the damage deposit was put down as $462.50 and the Application requested determination of the tenancy and the reason being that there was inconsistent or rather consistent late payment of rent; 7 out of 8 months have been late. The application also requested award of the application fee of $30.25.
3. The director’s decision showed that the Appellant/Tenant did not appear at the hearing however the Respondent Landlord did appear.
4. The director found that the Tenant/Appellant herein had not paid the current July rent of $925.00. He also found that the security deposit held by the Landlord was $482.00. He noted in his reasons for his decision that the termination of tenancy was allowed based on the habitual late payments and the current rental arrears.
5. The Landlord said the late payments 7 of the last 9 months has caused him great anxiety and stress to his life as he has mortgage payments to make on the home which he purchased in October 2013.
6. I except the following as fact based on documentary evidence and testimony of the parties.
7. The Tenant’s rent was deposited into the Respondent’s account past the due date for the rent. I accept the Appellant’s evidence that it was emailed to the account of the Landlord on time and the Landlord/Respondent only decided to accept that email transfer days after it was transferred to his account by email. The Landlord/Respondent said that he would accept email transfer at his earliest convenience. I noticed except for 3 months 2 of which the Landlord accepted late payment, that the rent was in the Landlord’s account a few days after the beginning of the month. I also accept as fact that all arrears of rent are up to date and have been accepted by the Landlord.
8. The Landlord indicated that he would be doing the Appellant a favor in terminating the lease as she was living well beyond her means. She did indicate that she receives money from social services in the amount of a little over $1100.00 per month plus other income for her children in the amount of approximately $1000 per month. The Residential Tenancies Act allows a Tenant to give notice of termination for financial and health reasons:
9. Early termination upon income reduction10B (1) Notwithstanding Section 10, where the income of a Tenant, or one of a group of the Tenants in the same residential premises, is so reduced because of a significant deterioration of a Tenant’s health that it is not reasonably sufficient to pay the rent in addition to the Tenant’s other reasonable expenses, or if there is more than one Tenant, the Tenant’s portion of the rent and other reasonable expenses, the Tenant may terminate a year-to-year or fixed-term tenancy by giving the Landlord (a) one month’s notice to quit, in the form prescribed by regulation; (b) a certificate of a medical practitioner, in the form prescribed by regulation, evidencing the significant deterioration of health; and (c) proof of service, in the form prescribed in the regulations, of all the Tenants in the same residential premises with a copy of the notice to quit.
10. However this is a right provided to Tenants. The Landlord of course is always concerned about having his rent paid however it does not matter what he believes to be the case with respect to the financial position of a Tenant, his main concern and only concern with respect to rent, is whether the rent is paid and on time.
11. In this particular case the Landlord/Respondent accepted payments that were late and therefore acquiesced or he agreed to partial or late payments as he was trying to be reasonable.
12. The Tenant/appellant has been living in the premises since 2008 where she signed the lease with her then husband and under her married name with the appellant’s predecessor in title. The Tenant would like to live in the premises and has quiet enjoyment of the premises with her two children however she said she has an issue with some of the conditions of the premises. She advised the court that this matter is being dealt with by Halifax Regional Municipality and it has not been a subject matter before the director as far as I know nor is it the subject matter of this hearing this evening. Some Small Claims Court adjudicators are of the view that matters that have not been addressed by an Application before the Director of Residential Tenancies may be dealt with on appeal. That has been questioned by other adjudicators who are of the view that only matters that were before the director should be dealt with on appeal and no others. In my view that is inconsistent with the Act. However listening to new matters has to be tempered with the common sense; what evidence is available at the time of the hearing and is a prudent to deal with that without the necessary witnesses and evidence at the time the hearing is before the court and would be more property dealt with at another time due to the circumstances in each case or is it before any other judicial or quasi-judicial body.
13. I also note that the Appellant/Tenant has told the court that she could have social services pay the rent directly and that she could do that. It would seem to me it would be the best solution if this relationship is to continue otherwise the mechanics of trying to get rent in time through her mother’s email account could  be problematic.
14. My decision is based on the fact that rent is up-to-date; it has been accepted by the Respondent/Landlord and that in fact some payments were accepted as being late and other payments were in fact not late but only reached the Respondent’s account when he accepted the transfer of funds via email.
15. The Landlord shall continue to hold onto the deposit and the Director’s Order will be rescinded.

It Is Therefore Ordered that the Order of the Director of Residential Tenancies dated July 24, 2014 and being file number 201402344 be rescinded.

Dated at Halifax Nova Scotia this 8 day of August 2014

                                                            __________________________

                                                                        David T.R. Parker QC

                                                                        Adjudicator of the Small Claims

Court of Nova Scotia