GNF Investments Ltd. v. Rossell et al.,

• Jurisdiction: Nova Scotia
• Judge: Slone
• Neutral Citation: 2015 NSSM 54
• Citation: (2015), 372 N.S.R.(2d) 1 (SmCl),2015 NSSM 54,372 NSR(2d) 1,(2015), 372 NSR(2d) 1 (SmCl),372 N.S.R.(2d) 1
• Date: 02 December 2015
• Court: Small Claims Court of Nova Scotia (Canada)

GNF Inv. Ltd. v. Rossell (2015), 372 N.S.R.(2d) 1 (SmCl);

    1172 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.040

GNF Investments Limited (Landlord (appellant)) v. Sofia Rossell and Anthony Kavanaugh (Tenants (respondents))

(No. 440511; 2015 NSSM 54)

Indexed As: GNF Investments Ltd. v. Rossell et al.

Nova Scotia Small Claims Court

Slone, Adjudicator

December 14, 2015.

Summary:

Tenants served their landlord with Form G (Notice to Quit - Early Termination of Tenancy) together with Form H - Physician's Certificate, indicating an intention to vacate the year to year lease early. The landlord filed an application to contest the early termination. The Residential Tenancy Officer found that the tenants had met the requirements of the Residential Tenancies Act and the lease was legally terminated. The Officer ordered the landlord to return the tenants' security deposit. The landlord appealed. At issue included whether the requirements for early termination under of s. 10C(1) ("Early termination for health reasons") of the Act were met.

The Nova Scotia Small Claims Court allowed the appeal. The court ordered the tenants to pay the landlord three months' rent (the length of time it took the landlord to re-rent the unit), minus their security deposit, plus costs of issuing the Residential Tenancies application and launching the appeal.

Landlord and Tenant - Topic 6688.1

Termination, forfeiture and reentry - Notice of termination - Early termination for health reasons - Section 10(c)1 of the Residential Tenancies Act provided that "... where a tenant or a family member residing in the same residential premises in a year-to-year or fixed-term tenancy has suffered a significant deterioration in health that, in the opinion of a medical practitioner, results in the inability of the tenant to continue the lease or where the residential premises are rendered inaccessible to the tenant, the tenant may terminate the tenancy ..." - The Nova Scotia Small Claims Court stated that "The Residential Tenancy Officer and, by extension this Court, must strike a proper balance between the rights of the tenant ... and those of the Landlord. The tenant is entitled to have her rights and privacy respected, and to have the opinion of her physician accepted at face value. The Landlord, on the other hand, must be entitled to question whether there is any justice in forcing it to incur the financial cost associated with an abrupt disruption of its flow of rent. ... In my view, this balance is achieved by allowing the Landlord to raise the question: what deterioration in health have you suffered, and how are you unable to continue the tenancy, or how is my premises no longer accessible to you? These elementary questions may (and should) be asked immediately upon the landlord learning that the tenant intends to invoke s.10C, and may be renewed at the hearing before the Residential Tenancy Officer or the Small Claims Court. And these questions should be answered with enough information that would potentially satisfy a reasonable third party. Of course, there are privacy considerations, but when a tenant is potentially asking a landlord to incur significant financial costs associated with the tenant's deteriorated health, a reasonable amount of information must be provided. ... In my respectful view, the legislature did not intend that the physician's certificate would be a full and final answer to the question. While it was intended that the certificate carry weight, it was not intended that it be an impenetrable wall behind which no one could go. That interpretation would amount to a wholesale delegation of authority to the physician and a total derogation of authority from the Residential Tenancy Officer and this Court. I find that this was not the intention." - See paragraphs 20 to 22.

Landlord and Tenant - Topic 6688.1

Termination, forfeiture and reentry - Notice of termination - Early termination for health reasons - Tenants served their landlord with Form G (Notice to Quit - Early Termination of Tenancy) together with Form H - Physician's Certificate, indicating an intention to vacate the year to year lease early under s. 10C(1) of the Residential Tenancies Act due to a significant deterioration in the health of one of tenants (Rossell) - Rossell health issue was asthma - The landlord contested the early termination - The Residential Tenancy Officer found that the lease was legally terminated - The Nova Scotia Small Claims Court allowed the landlord's appeal - When Rossell's doctor signed Form H on February 24, 2015, Rossell had not suffered any deterioration in her health, let alone a "significant" one as required by s. 10C(1) - Her asthma was not out of control - In the doctor's subsequent narrative letter of May 5, 2015, she still did not report that there had been a deterioration in Rossell's health, only that there was a concern about a possible future deterioration in health - The tenants had an initial duty to advise the landlord of the problem and to give the landlord the opportunity to look into and, if possible, fix that problem - The landlord was not given that opportunity - As the evidence did not point to a significant deterioration in health, the second branch of the test (whether the deterioration rendered the tenant "unable to continue" with the tenancy) did not come into play - The doctor's narrative letter stated that Rossell was no longer able to remain in the apartment due to fear and anxiety that arose after the landlord refused to allow them to terminate the lease - However, s. 10C was not intended to allow a tenant to terminate a lease because of the stress of a dispute with the landlord over the tenant's attempt to terminate the lease - There had to be something inherently problematic about the physical premises on a go-forward basis - See paragraphs 43 to 54.

Counsel:

Maggie Stewart, for the Landlord;

Adam Weryha, law student and Megan Deveaux, Dalhousie Legal Aid, for the Tenant.

This appeal was heard at Halifax, Nova Scotia, on December 2, 2015, by Slone, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following decision on December 14, 2015.