Lelacheur v. Densmore,

• Jurisdiction: Nova Scotia
• Judge: Barnett
• Neutral Citation: 2012 NSSM 58
• Citation: 2012 NSSM 58,(2012), 323 N.S.R.(2d) 249 (SmCl),323 NSR(2d) 249,(2012), 323 NSR(2d) 249 (SmCl),323 N.S.R.(2d) 249
• Date: 19 November 2012
• Court: Small Claims Court of Nova Scotia (Canada)

Lelacheur v. Densmore (2012), 323 N.S.R.(2d) 249 (SmCl);

    1025 A.P.R. 249

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. DE.003

Kelly Lelacheur (applicant) v. Kenneth M. Densmore (respondent)

(391762; 2012 NSSM 58)

Indexed As: Lelacheur v. Densmore

Nova Scotia Small Claims Court

Barnett, Adjudicator

December 3, 2012.

Summary:

A landlord appealed a decision of a Residential Tenancy Officer to the Small Claims Court. The tenant was absent from the appeal hearing. The court allowed the appeal and granted the landlord an order against the tenant in an amount approximately five times more than he had been awarded by the Residential Tenancy Officer. The tenant applied to set aside the order on the grounds that she was present in the court house on the date of the appeal hearing but did not understand which room she was to go to, she had full intent to appear, and she had a defence and wished to present her case.

An Adjudicator of the Nova Scotia Small Claims Court allowed the application.

Courts - Topic 6204.1

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - General - An Adjudicator of the Nova Scotia Small Claims Court stated that "The unassailable proposition that this Court lacks the 'inherent jurisdiction' of superior courts does not mean, however, that this Court does not possess powers necessarily incidental or ancillary to its statutory jurisdiction. In other words, it does not necessarily follow that this Court cannot act in the absence of an express statutory or regulatory power. The Court has an implied jurisdiction over a number of matters that flow from 'a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so'" - See paragraph 26.

Courts - Topic 6210

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Natural justice - [See Courts - Topic 6211 ].

Courts - Topic 6211

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Landlord and tenant claims - A landlord appealed a decision of the Residential Tenancy Officer to the Small Claims Court - The tenant was absent from the appeal hearing - The court allowed the appeal and granted the landlord an order against the tenant in an amount approximately five times more than he had been awarded by the Residential Tenancy Officer - The tenant applied to set aside the order - An Adjudicator of the Nova Scotia Small Claims Court held that the court had jurisdiction to consider the application - As set out in s. 17C(5) of the Residential Tenancies Act, the Small Claims Court "shall determine its own practice and procedure but shall give full opportunity for the parties to present evidence and make submissions" - The ability to appeal to the Supreme Court of Nova Scotia was illusory in the tenant's circumstances as she was not present at the appeal hearing (s. 17E(1) of the Residential Tenancies Act) - In circumstances where the respondent did not show up at the appeal hearing but had a reasonable excuse for not doing so and had a fairly arguable response to the appellant's position, it would constitute a denial of natural justice to deny the respondent an opportunity to be heard in the absence of serious prejudice to the appellant - See paragraphs 16 to 36.

Landlord and Tenant - Topic 7183

Regulation - Appeals - From decision of rentalsman or board - [See Courts - Topic 6211 ].

Landlord and Tenant - Topic 7184

Regulation - Appeals - Jurisdiction - [See Courts - Topic 6211 ].

Practice - Topic 9766.3

Small claims - Hearings - Failure to appear - A landlord appealed a decision of a Residential Tenancy Officer to the Small Claims Court - The appeal was heard on June 11, 2012 - The tenant was absent - In a June 26, 2012 order, the court allowed the appeal and granted the landlord an order against the tenant in an amount approximately five times more than he had been awarded by the Residential Tenancy Officer - The tenant applied on July 4, 2012, seeking to set aside the order on the grounds that she was present in the court house but did not understand which room she was to go to, she had full intent to appear, and she had a defence and wished to present her case - An Adjudicator of the Nova Scotia Small Claims Court allowed the application - The tenant had a reasonable excuse for not appearing at the appeal hearing - There was no unreasonable delay in making the application - The tenant had a reasonably arguable response in connection with the landlord's claims in the residential tenancy appeal - There was sufficient documentary and oral evidence available to the landlord to successfully pursue the appeal and he would not be prejudiced - See paragraphs 37 to 70.

Practice - Topic 9767

Small claims - Jurisdiction - General - [See Courts - Topic 6204.1 ].

Cases Noticed:

Stewiacke Home Hardware v. Leighton (2012), 316 N.S.R.(2d) 315; 1002 A.P.R. 315; 2012 NSSC 184, refd to. [para. 11].

Little (H.E.) Excavating Ltd. v. Blair's Custom Metals, [2006] N.S.R.(2d) Uned. 98; 2006 NSSC 251, refd to. [para. 25].

Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd., [1971] M.J. No. 39 (C.A.), refd to. [para. 26].

McNeil v. Meech, [2003] N.S.R.(2d) Uned. 32; 2003 NSSC 108, refd to. [para. 27].

Kemp v. Prescesky (2006), 244 N.S.R.(2d) 67; 774 A.P.R. 67; 2006 NSSC 122, refd to. [para. 32].

Ives v. Dewar, [1949] 2 D.L.R. 204, refd to. [para. 55].

Temple v. Riley (2001), 191 N.S.R.(2d) 87; 596 A.P.R. 87; 2001 NSCA 36, refd to. [para. 55].

Logic Alliance Inc. v. Jentree Canada Inc. (2005), 229 N.S.R.(2d) 127; 725 A.P.R. 127; 2005 NSSC 2, refd to. [para. 55].

Statutes Noticed:

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 2 [para. 24].

Residential Tenancies Act, R.S.N.S. 1989, c. 401, sect. 1A [para. 23]; sect. 17C [para. 17]; sect. 17E(1) [para. 30].

Counsel:

Megan Deveaux, Dalhousie Legal Aid Service, for Kelly Lelacheur;

Kenneth M. Densmore, self-represented.

This application was heard on July 16, August 13, October 29, and November 19, 2012, before Barnett, Adjudicator of the Nova Scotia Small Claims Court, who delivered the following decision on December 3, 2012.