Killam Properties Inc. v. Patriquin, (2014) 354 N.S.R.(2d) 180 (CA)

Judge:Saunders, Fichaud and Bryson, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:December 03, 2014
Jurisdiction:Nova Scotia
Citations:(2014), 354 N.S.R.(2d) 180 (CA);2014 NSCA 114
 
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Killam Prop. Inc. v. Patriquin (2014), 354 N.S.R.(2d) 180 (CA);

    1120 A.P.R. 180

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Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.052

Mark Patriquin (appellant) v. Killam Properties Inc. (respondent)

(CA 420770; 2014 NSCA 114)

Indexed As: Killam Properties Inc. v. Patriquin

Nova Scotia Court of Appeal

Saunders, Fichaud and Bryson, JJ.A.

December 23, 2014.

Summary:

Killam Properties Inc. owned land in Amherst, Nova Scotia, upon which a mobile home park was situated. The land was subdivided into lots which were rented to persons who placed their own mobile home on an individual lot. On May 29, 2009, Killam served the park's tenants with a Notice of Rent Increase - Mobile Home Park Space. The notice indicated that there was a change in services in that Killam would no longer be maintaining driveways and walkways. Over 14 months after receiving the notice, a tenant (Patriquin) applied for review, asserting that the paving of driveways and walkways was not a service that could be withdrawn under s. 9(1)2 of the Residential Tenancies Act, but part of Killam's obligation under s. 9(1)1 to keep the premises in a good state of repair. The Director of Residential Tenancies concluded that Killam was required to maintain the driveways and walkways pursuant to s. 9(1)1. Killam appealed, asserting that the Director erred (1) in allowing the complaint as it was an out of time rent review application and (2) in determining that walkways and driveways were part of the premises that the landlord was obligated to maintain in accordance with s. 9(1)1.

The Nova Scotia Small Claims Court dismissed the appeal. The court limited the application of its decision to the tenancy relations between Killam and Patriquin where the facts of each tenant's case might be different and warrant a different result. Killam appealed.

The Nova Scotia Supreme Court, in a decision reported at 330 N.S.R.(2d) 369; 1046 A.P.R. 369, allowed the appeal. The repair of Patriquin's driveway was not a condition of the premises within the meaning of s. 9(1)1, but a service and subject to discontinuance in accordance with s. 9(1)2. Killam gave proper notice of an increase in rent to support its decision to discontinue the service. Patriquin's application for review was out of time and the notice of rent increase as against Patriquin was valid. Patriquin appealed. Killam moved to dismiss the appeal on the ground that the Court of Appeal had no jurisdiction to entertain the appeal.

The Nova Scotia Court of Appeal allowed the motion and dismissed the appeal.

Landlord and Tenant - Topic 7184

Regulation - Appeals - Jurisdiction - A Small Claims adjudicator dismissed a landlord's appeal from a decision of the Director of Residential Tenancies - A Supreme Court judge allowed the landlord's appeal - The tenant appealed - The landlord moved to dismiss the appeal, asserting that the court lacked jurisdiction as s. 32(6) of the Small Claims Court Act provided that a decision of the Supreme Court "... pursuant to this Section is ... not subject to appeal" - The tenant asserted that as s. 17E of the Residential Tenancies Act stated that an appeal to the Supreme Court was to be "... in the manner set out in the Small Claims Court Act" and that "in the manner set out" meant that s. 32 shaped but did not govern the appeal to the Supreme Court - The Nova Scotia Court of Appeal rejected the tenant's assertion and allowed the motion - There was no material difference between "in the manner set out" in s. 17E and "pursuant to" in s. 32(6) - See paragraphs 11 to 19.

Landlord and Tenant - Topic 7184

Regulation - Appeals - Jurisdiction - A Small Claims adjudicator dismissed a landlord's appeal from a decision of the Director of Residential Tenancies - A Supreme Court judge allowed the landlord's appeal - The tenant appealed - The landlord moved to dismiss the appeal, asserting that the court lacked jurisdiction as s. 32(6) of the Small Claims Court Act provided that a decision of the Supreme Court "... pursuant to this Section is ... not subject to appeal" - The tenant asserted that the Small Claims hearing was not "proceedings before the [Small Claims] Court" within the meaning of s. 32(1), but a proceeding before the Director of Residential Tenancies because that is where the dispute first aired - The Nova Scotia Court of Appeal rejected the tenant's assertion and allowed the motion - The hearing before the Small Claims adjudicator was what ss. 17(C) and 17(D) of the Residential Tenancies Act described as an "appeal" from the Director - The adjudicator conducted a hearing de novo and had the authority under s. 17D(1)(a) to "confirm, vary or rescind" the Director's ruling - The landlord's appeal to the adjudicator was not a reference, or a delegated function, by the Director - It was a new proceeding before the Small Claims Court - That meant that the Supreme Court heard an appeal from "proceedings before the [Small Claims] Court" within the meaning of s. 32(1) - Consequently, s. 32(6) applied and barred a further appeal to the Court of Appeal - See paragraphs 20 to 29.

Practice - Topic 9758.1

Small Claims - Appeals - General - Jurisdiction - [See both Landlord and Tenant - Topic 7184 ].

Words and Phrases

In the manner set out - The Nova Scotia Court of Appeal considered the meaning of this phrase as used in s. 17E of the Residential Tenancies Act, R.S.N.S. 1989, c. 401 - See paragraphs 11 to 19.

Cases Noticed:

Campbell v. Lienaux et al. (2004), 223 N.S.R.(2d) 88; 705 A.P.R. 88; 2004 NSCA 41, dist. [para. 21].

Turner-Lienaux v. Campbell - see Campbell v. Lienaux et al.

MacDonald v. Mor-Town Developments Ltd. (2011), 305 N.S.R.(2d) 302; 966 A.P.R. 302; 2011 NSSC 281, revd. (2012), 316 N.S.R.(2d) 183; 1002 A.P.R. 183; 2012 NSCA 35, refd to. [para. 22].

Statutes Noticed:

Residential Tenancies Act, R.S.N.S. 1989, c. 401. sect. 17E [para. 12].

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 32(1), sect. 32(6) [para. 15].

Counsel:

Lloyd R. Robbins, for the respondent, Killam Properties Inc. (applicant on the motion);

Donna D. Franey and Stephanie Szczesniak (student), for the appellant, Mark Patriquin (respondent on the motion).

This appeal was heard at Halifax, Nova Scotia, on December 3, 2014, by Saunders, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following judgment for the court on December 23, 2014.

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