Crane et al. v. Arnaout, (2015) 360 N.S.R.(2d) 148 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 30, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 360 N.S.R.(2d) 148 (SC);2015 NSSC 106

Crane v. Arnaout (2015), 360 N.S.R.(2d) 148 (SC);

    1135 A.P.R. 148

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.003

David Crane and Jacqueline Costello (appellants) v. Azmi Arnaout (respondent)

(Hfx. No. 432313A; 2015 NSSC 106)

Indexed As: Crane et al. v. Arnaout

Nova Scotia Supreme Court

Rosinski, J.

May 4, 2015.

Summary:

A landlord and tenants disputed whether the tenants had provided sufficient notice to quit to the landlord. The lease had never been reduced to writing, nor had the landlord provided the tenants with a copy of the Residential Tenancies Act as required by s. 7 of the Act. A Residential Tenancies Officer concluded that "[b]ased on s. 7(3) of the Residential Tenancies Act, I find the tenant's notice to quit issued on May 30, 2013, effective May 31, 2013 is proper, and the landlord is not entitled to his claim of $6000 for rent" ($2,000/month for June, July, and August 2013)". The landlord appealed.

An Adjudicator of the Nova Scotia Small Claims Court, in a decision not reported in this series of reports, allowed the appeal, concluding that "reasonable notice", being at least one month's notice to quit was legally required of the tenants; therefore, $2,000 rent for that month was payable by them to the landlord. The tenants appealed.

The Nova Scotia Supreme Court allowed the appeal and affirmed the Residential Tenancies Officer's decision as correct. The court held that: by giving one day notice, exceptionally as a result of the landlord's failure to comply with s. 7, sufficient notice had been given to the landlord; while the Adjudicator properly felt bound by Goodfellow, J.'s statutory interpretation of s. 7 in Benjamin v. Pottie (1994), Goodfellow, J.'s. interpretation, and therefore the Adjudicator's, was incorrect; and, in these unusual circumstances, the parties should bear their own costs.

Courts - Topic 6209

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Adjudicator - [See Practice - Topic 5779 ].

Landlord and Tenant - Topic 2785

The lease - Repudiation by tenant - Notice to landlord - [See both Landlord and Tenant - Topic 7009 ].

Landlord and Tenant - Topic 7009

Regulation - General principles - Interpretation of legislation - A landlord and tenants disputed whether the tenants had provided sufficient notice to quit to the landlord - The lease had never been reduced to writing, nor had the landlord provided the tenants with a copy of the Residential Tenancies Act as required by s. 7 of the Act - Section 7(3)(a) provided that "Where a landlord fails to provide a copy or reproduction of this Act in accordance with subsection (1) or a copy of a written lease in accordance with subsection (2), the tenant (a) at any time before the tenant receives a copy or reproduction of this Act or the written lease from the landlord; ... may give notice to the landlord that the tenant will quit and deliver up the premises on a specified day within a period of three months from the day the notice is given." - The Nova Scotia Supreme Court held that tenants had complied with s. 7(3) when they gave one day's notice in writing - The words of s. 7(3) were not ambiguous and did not require a judicially interpreted adjustment to properly reflect the legislature's intention - The section intended, where the landlord had not provided tenants with either a copy of the Act or a copy of a written lease in cases of written leases, that tenants be permitted to give notice to quit on an accelerated timetable - See paragraphs 24 to 60.

Landlord and Tenant - Topic 7009

Regulation - General principles - Interpretation of legislation - Section 7(3)(a) of the Residential Tenancies Act provided that "Where a landlord fails to provide a copy or reproduction of this Act in accordance with subsection (1) or a copy of a written lease in accordance with subsection (2), the tenant (a) at any time before the tenant receives a copy or reproduction of this Act or the written lease from the landlord; ... may give notice to the landlord that the tenant will quit and deliver up the premises on a specified day within a period of three months from the day the notice is given." - The Nova Scotia Supreme Court held that "[e]ffectively, under my interpretation of s. 7(3), the notice to quit, otherwise required by s. 10 would be: - In a week to week lease, as little as one day notice rather than one week before the expiration of any such week; - In a month-to-month lease, as little as one day notice rather than one month before the expiration of any such month; and - In a year-to-year lease, as little as one day notice rather than three months before the expiration of any such year, would be required of tenants in such cases. Notably, s.7 is applicable to fixed term leases. In a one year fixed term lease scenario, for example, noncompliance with s. 7 may permit a tenant to give notice that they will quit and deliver up the premises on a specified day within a period of three months from the day the notice is given. If the landlord does not comply with s. 7, the tenant could give as little as one day notice to quit." - See paragraphs 67 and 68.

Landlord and Tenant - Topic 7196

Regulation - Appeals - Costs - A landlord and tenants disputed whether the tenants had provided sufficient notice to quit to the landlord - Both parties agreed that the lease had never been reduced to writing, nor had the landlord provided the tenants with a copy of the Residential Tenancies Act as required by s. 7 of the Act - A Residential Tenancies Officer concluded that "[b]ased on s. 7(3) of the Residential Tenancies Act, I find the tenant's notice to quit issued on May 30, 2013, effective May 31, 2013 is proper, and the landlord is not entitled to his claim of $6000 for rent" ($2,000/month for June, July, and August 2013)" - The landlord appealed - A Small Claims Court Adjudicator allowed the appeal, concluding that "reasonable notice", being at least one month's notice to quit was legally required of the tenants; therefore, $2,000 rent for that month was payable by them to the landlord - The Nova Scotia Supreme Court allowed a further appeal and affirmed the Residential Tenancies Officer's decision as correct - The court held that while the Adjudicator properly felt bound by Goodfellow, J.'s statutory interpretation of s. 7 in Benjamin v. Pottie (1994), Goodfellow, J.'s. interpretation, and therefore the Adjudicator's, was incorrect - The court held that, in these unusual circumstances, the parties should bear their own costs - See paragraph 73.

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - A landlord and tenants disputed whether the tenants had provided sufficient notice to quit to the landlord - The Residential Tenancies Officer found for the tenants - The landlord applied for an extension of time to file his notice of appeal - A Small Claims Adjudicator (Parker) granted his request - Another Adjudicator (O'Hara) allowed the appeal, holding that one month's rent was payable - The tenants appealed, submitting, inter alia, that they had been denied a fair hearing contrary to the principles of natural justice when Adjudicator O'Hara did not revisit Adjudicator Parker's decision to grant an extension of time to file the notice of appeal, which extension had been made without permitting them an opportunity to participate - The Nova Scotia Supreme Court opined that "one adjudicator may exceptionally revisit such earlier decision of another adjudicator if as an exercise to prevent an injustice otherwise - s. 17C(5) Residential Tenancies Act. Then that later decision (including a refusal to extend the time to file an appeal) could be appealed to this Court as required. To my mind, such an order has the hallmarks of an interlocutory order" - Nevertheless, the court dismissed this ground of appeal - Had the tenants participated in the hearing before Adjudicator Parker regarding the landlord's application for an extension to file his notice of appeal as they had requested, the outcome would not have been different - See paragraphs 16 to 23.

Practice - Topic 7028.3

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Where law changes between trial and appeal - [See Landlord and Tenant - Topic 7196 ].

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - [See Practice - Topic 5779 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See first Landlord and Tenant - Topic 7009 ].

Statutes - Topic 1201

Interpretation - Construction where meaning is plain - General principles - [See first Landlord and Tenant - Topic 7009 ].

Cases Noticed:

Asselstine v. Drake et al., [2015] N.S.R.(2d) Uned. 43; 2015 NSSM 7 (Sm. Cl.), refd to. [para. 9].

Fancy v. Shephard (1997), 162 N.S.R.(2d) 66; 485 A.P.R. 66 (S.C.), refd to. [para. 9].

Arnaout v. Ferla (2004), 258 N.S.R.(2d) 6; 824 A.P.R. 6; 2004 NSSM 47 (Sm. Cl.), refd to. [para. 11].

Wiles Welding Ltd. v. Solutions Smith Engineering Inc. (2012), 318 N.S.R.(2d) 396; 1005 A.P.R. 396; 2012 NSSC 255, refd to. [para. 16].

Kemp v. Prescesky (2006), 244 N.S.R.(2d) 67; 774 A.P.R. 67; 2006 NSSC 122, consd. [para. 16].

Killam Properties Inc. v. Patriquin (2011), 307 N.S.R.(2d) 170; 975 A.P.R. 170; 2011 NSSC 338, refd to. [para. 18].

R. v. Derbyshire (B.L.) (2015), 356 N.S.R.(2d) 347; 1126 A.P.R. 347; 2015 NSCA 23, appld. [para. 20].

Raymond v. Brauer et al. (2015), 358 N.S.R.(2d) 219; 1131 A.P.R. 219; 2015 NSCA 37, refd to. [para. 21].

Potter v. Legal Aid Services Commission (N.B.) (2015), 468 N.R. 227; 432 N.B.R.(2d) 1; 1128 A.P.R. 1; 2015 SCC 10, refd to. [para. 34].

Benjamin v. Pottie (1994), 134 N.S.R.(2d) 353; 383 A.P.R. 353 (S.C.), disagreed with [para. 36].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 37].

Glaxo Group Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 103 F.T.R. 1 (T.D.), refd to. [para. 38].

R. v. Northern Electric Co., [1955] O.J. No 649 (H.C.), refd to. [para. 38].

R. v. R.V.F. (2011), 306 N.S.R.(2d) 247; 968 A.P.R. 247; 2011 NSCA 71, refd to. [para. 41].

Coates v. Capital District Health Authority et al. (2011), 299 N.S.R.(2d) 202; 947 A.P.R. 202; 2011 NSCA 4, refd to. [para. 42].

Morrison Estate v. Nova Scotia (Attorney General) (2011), 306 N.S.R.(2d) 124; 968 A.P.R. 124; 2011 NSCA 68, refd to. [para. 42].

Waterman v. Waterman (2014), 357 N.S.R.(2d) 36; 1127 A.P.R. 36; 2014 NSCA 110, refd to. [para. 42].

Reference Re Residential Tenancies Act (N.S.) (1994), 130 N.S.R.(2d) 346; 367 A.P.R. 346 (C.A.), revsd. [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [paras. 45, 46].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 53].

Statutes Noticed:

Residential Tenancies Act, R.S.N.S. 1989, c. 401, sect. 7(3)(a) [para. 24]; sect. 17C(5), sect. 17C(7) [para. 19].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), para. 7.26. [para. 54].

Counsel:

Danielle Kershaw and Elizabeth McIsaac (articling clerk), for the appellants;

Lloyd Robbins, for the respondent.

This appeal was heard on March 30, 2015, in Halifax, N.S., by Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 4, 2015.