Hancock v. Fuchs

Hancock v. Fuchs Court Court of Appeal Date 1994-06-09 Citation 1994 NSCA 115 Docket CA 02932 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Jones, Malachi C. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 02932 NOVA SCOTIA COURT OF APPEAL Jones, Chipman and Freeman, J.A. Cite as: Hancock v. Fuchs, 1994 NSCA 115 BETWEEN: ) ) GARTH W. H. HANCOCK ) Appellant in Person ) Appellant ) ) - and - ) ) LEIF-PETER FUCHS ) Respondent in Person ) Respondent ) ) ) ) ) Appeal Heard: ) June 9, 1994 ) ) ) Judgment Delivered: ) June 9, 1994 THE COURT: The appeal is allowed, the confirming order is set aside and the matter is remitted to the Supreme Court as per oral reasons for judgment of Chipman, J.A.; Jones and Freeman, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by CHIPMAN, J.A.: This is an appeal by a landlord from an order in the Supreme Court adopting a report of the Halifax and County West Residential Tenancies Board recommending that the landlord pay the tenant the sum of $295.66, being the amount of a security deposit, plus interest. By virtue of s. 15(5) of the Residential Tenancies Act, the evidence at a hearing before the Board is not recorded. The Supreme Court nevertheless has jurisdiction over the factual issues before the Board by virtue of s. 16(5) of the Act. A finding of fact made by a Residential Tenancies Board and adopted by a judge of the Supreme Court pursuant to the legislative scheme governing residential tenancies will not therefore be disturbed by this Court, unless it is manifestly erroneous. In applying the requisite test, this Court is necessarily confined to the record and the report of the Board and any additional record before the Supreme Court pursuant to s. 16(5). An error of law on the part of the Board which is adopted by the Supreme Court may, however, be corrected by this Court. On July 15, 1993, the tenant filed a complaint to the Board seeking repayment of the security deposit paid by him to the landlord, together with interest. On August 18. 1993, the landlord filed a complaint with the Board seeking payment of one month's rent and an order authorizing the application of the security deposit against expenses incurred with respect to damage caused by the tenant. The retention of a security deposit and the procedure and time limit respecting a claim to retain it is provided for in the Act: "12(5) Subject to subsection (6), the security deposit, together with interest, shall be returned to the tenant within ten days of the date of the termination of the lease. (6) Where the landlord seeks to apply all or part of the security deposit and interest to outstanding rent or to expense incurred in respect of any damage for which the tenant is responsible and the tenant does not consent in writing, the landlord may make an application under Section 14 or 18 or a complaint under Section 13. (7) An application or a complaint pursuant to subsection (6) shall be made within ten days of the date of termination of the lease and, if no application or no complaint is made, the security deposit shall be returned in accordance with subsection (5)." The Board held a hearing on August 23, 1993, and filed its recommendation on August 26, 1993. The Board found that the parties had entered into a written year to year standard lease with occupancy commencing September 1, 1991 and with a monthly rental of $550.00 due on the first of each month. The tenant paid the landlord a security deposit of $275.00 on or about September 1, 1991. The tenant vacated the premises on or about May 31, 1993. The report continues: "The tenant stated that he did give the landlord about two weeks notice that he was vacating. After the 10 days had elapsed the tenant approached the Residential Tenancies Board and filed his complaint for the return of his security deposit and interest as the landlord had not filed to retain it or notified him that he had any intent in retaining it. The tenant is also claiming termination of lease as of May 31st, 1993. The landlord stated that he did file to retain the security deposit and interest but not until after he had received the complaint from the tenant. The Board finds that as the landlord had not filed to retain the security deposit and interest within 10 days of the tenant vacating the premises that the security deposit and interest is to be returned to the tenant. The Board also finds that as the landlord had not filed within the 10 days of the tenant vacating that he has accepted the tenants terminating the lease as of May 31st, 1993." (emphasis added) The lease between the parties provided, as permitted under the Act, that the year to year tenancy could be terminated on three month's notice. The tenant failed to comply with this requirement but gave, as the Board found, "about two weeks notice" and claimed termination of the lease as of May 31, 1993. The Board found that the lease was terminated as of May 31, 1993 because the landlord did not file to retain the security deposit within ten days of the tenant vacating. With respect, this is an erroneous conclusion in law. The consequences of failing to file to retain a security deposit is, by reason of s. 12(7), that the deposit must be returned. Failure to comply with s. 12(7) does not give rise to a termination of the lease. As a result of this error, the Board failed to adjudicate upon the landlord's complaint. This, too, was an error. Moreover, the landlord claims that his Notice of Objection was not drawn to the attention of the Supreme Court judge. In these circumstances, we must allow the appeal, set aside the confirming order and remit the matter to the Supreme Court. There will be no costs on this appeal. Chipman, J.A. Concurred in: Jones, J.A. Freeman, J.A.