J. Editor’s Note: Corrigendum released on November 15, 2011. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 386 Date: 2011 10 17 Docket: Q.B.G. 1880/2011 Judicial Centre: Regina BETWEEN: KENSINGTON DEVELOPMENTS INC. and DAVID HUNTLEY and THELMA HUNTLEY RESPONDENTS and DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Greg D. Fingas for the appellant David Huntley representing himself JUDGMENT SCHWANN J. October 17, 2011 [1] The landlord, Kensington Developments Inc., appeals a decision rendered by a hearing officer under The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001(the “Act”). The issue before the hearing officer concerned the tenants’ claim for damages and return of the security deposit arising out of the landlord’s notice to vacate. Introduction [2] David and Thelma Huntley (the “tenants”) were given written notice to vacate their apartment unit on December 3, 2010 for December 31st termination date. The tenants reluctantly accepted termination even though it was short notice, and thereafter applied under the Act for the return of their security deposit and other damages. [3] hearing was convened on May 18, 2011 at which time the hearing officer heard evidence from the tenants, the landlord’s caretaker, and considered the written submissions of the owner, George Pantazopoulos. The tenants testified to difficulties encountered by them with an end of December move. Thelma Huntley is elderly and David (her son) had work commitments taking him out of town for five weeks commencing in January. He did not wish to saddle his mother with the move consequently, in so-called panic, they signed new lease right away. David’s evidence was summarized by the hearing officer as follows: “The tenant stated that the move was nightmare and expense due to short notice. He stated that they were unable to take both their pets to the new apartment so had to get rid of one.” The tenant claimed for damages under the Act for moving costs of $1,100.00, hook-ups and address change at $113.50, moving supplies of $97.48, and $64.05 for carpet cleaning. [4] The circumstances of the tenants’ claim for partial rent abatement were summarized by the hearing officer as follows: significant issue for the Tenants was the fact that in January 2008 there was water leak in their main bathroom which had caused stain on the downstairs units ceiling. They were advised not to use the bathroom. plumber was called in and the Tenant had to move all of their belongings to one side of the dining room so that the plumbers could access the wall behind where the bathroom pipes were. The plumbers did come at one point and in moving large breakfront in the dining room broke number of items. This visit by the plumbers did not correct the problem, so the Tenants left the breakfront and the dining room furniture to one side of the room in order for access to be had. They were unable to use the dining room from January 2008 to their move out on December 31, 2010. Although the Tenant spoke with the caretaker her [sic] estimates 100 times about the plumbing problem, nothing was done. He states in late 2010 they were advised that they could use the toilet but could not use the tub as they believed that is where the leak was. ... [5] The landlord’s caretaker, who appeared at the hearing on behalf of the landlord, confirmed the protracted plumbing problem and the tenants’ restriction on bathroom use. While not abundantly clear from the decision itself, it would appear the hearing officer accepted the tenant’s evidence on the unusable space, and that this evidence represented her findings of fact. [6] Exercising her discretion under s. 70 of the Act, the hearing officer awarded the tenant half of the tenants\' actual moving cost ($598.92) and one year of rent abatement of $3,060.00. [7] Before turning to the analysis, three documents which form part of the record deserve mention. The first is the tenants’ Form Application for Hearing. In the box entitled “Claims for these losses or Order”, the tenant checked off “other”, and specified in the space provided: “illegal eviction, deposit, unusable space.” The second document is the actual Hearing Notice. Applicants are required to complete this form and serve it on the other side. It would appear from the file that George Pantazopoulos was in fact served. The bottom portion of this form is significant because it sets out the particulars of their claim. Here the tenant stipulated: Failed to keep property adequately repaired, making areas unusable. Made many promises. Performed an illegal eviction of tenants, stating rules did not apply. Inadequate notice of rent increases and demand that we vacate. Further, under the heading “Order Requested”, the tenant claimed the following: Landlord to do the following: Return interest on deposit monies. Return portion of rent on unuseable [sic] space, Jan 2008 to Dec 2010 interest. Pay the moving expenses, as deemed reasonable, an eviction was contrary to provincial law. [8] The final document is letter of May 4, 2011 from G. Pantazopoulos to the Rentalsman concerning the tenants’ application. Mr. Pantazopoulos wrote: 4. The accusation by the Huntley’s that the condo was unusable in [sic] obscured. This condo unit was and is in mint condition and all areas were livable. If the condo was not usable, why did they stay for three years (Jan 2008 Dec 2010)? There was small leak from the faucet in one of the bath tubs that was resolved by Mackenzie Plumbing and Heating. The statement that was given by the Huntleys is dishonest, as Kensington Developments Inc. is company that develops condos and sells them and the notice was given in accordance to the law when property has been sold. With regard to the hearing date, Mr. Pantazopoulos said this: will be over seas the date of the hearing and this is my company’s written response. The building Manager, Don Dawson, will be in attendance at the hearing. Jurisdiction [9] Section 72 of the Act provides right of appeal from decision of hearing officer made under the Act on question of law or jurisdiction. This limited scope of appellate review has been described in the following manner by the Saskatchewan Court of Appeal in Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask.R. 114 (Sask. C.A.), [1994] S.J. No. 413 (QL) at para. 18: 18 Our jurisdiction and that of the Queen's Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman's jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. Grounds of Appeal [10] The landlord submits the hearing officer erred by:(a) ...failing to give the landlord an opportunity to respond to the claims and evidence of the Respondents, David and Thelma Huntley (the “Tenants”);(b) ...unreasonably awarding damages for moving expenses in the absence of any evidence that the alleged lack of proper notice to the tenants affected in any way their actual cost of moving; and(c) ...unreasonably awarding rent abatement respecting the loss of use of the dining room space in the absence of any evidence as to why such space was not usable during the period for which the abatement was awarded. A. Failure to Give Opportunity to be Heard and Respond to Claims [11] Under this ground of appeal, the landlord contends he was not given opportunity to be heard, or to adequately respond to the tenants’ claim. He says the tenants failed to properly identify which area of the unit was unusable, failed to describe the relief sought or the nature of argument they intended to advance. Moreover, as the owner was unable to attend on the scheduled hearing date, the matter proceeded unfairly without an opportunity for him to be heard. Reliance is placed on the following decisions: Charan Properties Management Inc. v. Zorn, 2011 SKQB 56 (CanLII), [2011] S.J. No. 73 (QL); Watson v. Weidner Investment Services, 2008 SKQB 178 (CanLII), [2008] S.J. No. 243 (QL). [12] This line of argument cannot succeed for several reasons. First, contrary to the landlord’s contention, the tenant did in fact give him notice of his claim by way of two separate documents. In his Form application, the tenant clearly and legibly printed the words “unusable space”. This initiating document was followed by the Hearing Notice where the tenant elaborated on both the alleged breach and the remedy sought. (see paragraph above). [13] Second, the landlord appears to be have been under no misapprehension about the tenant’s position as evidenced by his written response provided by letter of May 4th. The landlord squarely addressed the “unusable space” issue in taking the position that all areas of the unit were livable. In any event, he went on to indicate that his building manager would attend the hearing. [14] In my view, the May 4th letter seriously undermines the landlord’s submission of being unaware of the nature of the argument to be advanced, moreover, by his own words, the letter was intended to serve as “my company’s written response” to the tenants’ application. In any event, Pantazopoulos arranged for someone else to appear on his behalf. He now argues the caretaker did not attend as his advocate, however, there is nothing in his letter to reflect the caretaker’s limited role. Finally, had Pantazopoulos wished to attend in person, he could have sought an adjournment, but he did not. The cases relied upon in support are all distinguishable on their facts. B. Unreasonableness of Award of Damages for Moving Expenses and Loss of Useable Space [15] The landlord contends the award of damages was unreasonable because it was an arbitrary award unsupported by any link or connection between the “improper” termination notice and the tenants’ moving costs and loss of useable space. He suggests there are no findings of fact to support either award. [16] With regard to the moving costs, the hearing officer's rationale for awarding damages was the following: also must adjust the claim for moving as again eventually that expense would occur on move out. However due to the improper notice (the last day written notice could have been properly provided for December 31st departure would have been November 30th) and the inconvenience caused by this improper notice, award one-half of these costs or $598.92. do not award for the registered mail charge as service on landlord can be made by ordinary mail. While she did not specify the precise nature of the tenants’ “inconvenience” in this part of her decision, fair reading of the whole of the decision points to her adoption of the tenants’ evidence that improper notice had caused them extra expense and inconvenience. Similarly, in rendering her decision on the rent abatement issue, the hearing officer implicitly accepted the tenants’ evidence about loss of usable space buttressed by evidence from the caretaker who confirmed the protracted plumbing problem. This was her conclusion: While sympathize with what the Tenants had to live with and their concern about complaining and losing their apartment, the Act requires Landlord to mitigate their losses and so too must Tenant. The Tenant had options to come to this office and request repair order which may have meant that they didn’t have to live with this situation for years. find that the length of time can award for abatement would be for one year. find this in consideration of the promises made by the Landlord to have the repair done. The Tenant obviously put his faith in the Landlord that it would be dealt with and was therefore patient. award for one year or rent abatement or $3,060.00. [17] Section 70(6)(c) of the Act empowers hearing officer to order payment of damages where the hearing officer considers it just and equitable in the circumstances. The wording of this provision is broad and unconstrained, which suggests the Legislature intended broad exercise of discretionary authority having regard to the objects and purposes of the Act and to the facts presented in evidence. “What is “just and equitable” depends in part on the context and in part on the facts.” (Hryck v. Neves 2007 SKQB 189 (CanLII), 300 Sask. R. 17). Moreover, the only limitation on the nature of damages which may be imposed is that it must not be punitive. (Grover v. Kozmyk (1995), 1995 CanLII 5848 (SK QB), 139 Sask. R. 155 (Sask Q.B.), [1995] S.J. No. 773 (QL); Mubili v. Colliers McClocklin Real Estate Corp. 2007 SKQB 375 (CanLII), 306 Sask. R. 5) [18] The landlord argues the hearing officer erred by awarding damages without any direct link or connection to actual loss incurred by the tenants. This line of argument is premised on the position that the scope of damages is restricted to recovery for actual loss and does not extend to such things as damages for stress or aggravation. [19] In Grover v. Kozmyk, supra, the court held the Rentalsman was not empowered to assess punitive damages but the court nevertheless concluded it was open to the Rentalsman under the Act to award aggravated damages where the circumstances warrant it. (Grover supra, at para. 12; Gasparovic v. Sutherland (1996), 1996 CanLII 6794 (SK QB), 150 Sask.R. 51, [1996] S.J. No. 715 (QL)). [20] While the hearing officer’s decision could have been more clearly worded, conclude that fair reading of the decision reflects an award for damages for both compensatory loss (loss of usable space) and aggravation and inconvenience. Conclusion and Disposition [21] It is clear from the record that the landlord had notice of the application, the nature of the tenants’ complaint and the relief sought. If the landlord had wished to personally attend, he could have sought an adjournment, but he did not. Instead he chose to have his position advanced through combination of written submission and attendance by his representative. The landlord’s strategic miscalculation does not amount to an error on the part of the hearing officer. [22] With regard to the award of damages, I conclude the decision on rent abatement was made on a principled and logical basis having regard to the facts. The purpose of the award was to compensate the tenants for their loss of use of usable space. The award for moving costs was intended in part to compensate for inconvenience and aggravation, and in part as compensatory loss for related expenses. Both awards were reasonable on both fact and law, accordingly. I find no reviewable error by the hearing officer. [23] The landlord’s appeal is therefore dismissed. J. L.M. SCHWANN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 386 Date: 2011 11 15 Docket: Q.B.G. 1880/2011 Judicial Centre: Regina BETWEEN: KENSINGTON DEVELOPMENTS INC. and DAVID HUNTLEY and THELMA HUNTLEY RESPONDENTS and DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Greg D. Fingas for the appellant David Huntley representing himself November 15, 2011 SCHWANN J. CORRIGENDUM to JUDGMENT of October 17, 2011 (2011 SKQB 386) [24] In my judgment herein dated October 17, 2011, the citation referred to for Charan Properties Management Inc. v. Zorn in para. [11] was quoted incorrectly as 2010 SKQB 30 (CanLII), [2010] S.J. No. 37 (QL). It should read [2011] S.J. No. 37 (QL). J. L.M. SCHWANN
The tenants were given short written notice to vacate their apartment unit. The tenants applied under the Residential Tenancies Act for the return of their security deposit and damages including moving expenses. The landlord was out of country at the time of the hearing but authorized by letter that the caretaker would attend the hearing to represent the landlord. The caretaker confirmed the tenants endured a protracted plumbing problem and restriction on bathroom use in the apartment. The hearing officer awarded the tenants half of the actual moving cost and 1 year of rent abatement. The landlord appealed the hearing officer's decision. The landlord alleged that he was not given the opportunity to be heard or to adequately respond to the tenants' claim as he received inadequate notice and alleged that the award of damages was unreasonable. HELD: The landlord's appeal was dismissed. 1) The tenant gave notice of his claim by two separate documents and the landlord showed no misapprehension of the tenants' position based on his written response. The landlord did not indicate in his letter that the caretaker had a limited role and the landlord could have sought an adjournment but did not.  2) Section 70(6)(c) of the Act empowers the hearing officer to order payment of damages where the hearing officer considers it just and equitable. The wording of this provision is broad and unconstrained excepting that the nature of damages that may be imposed must not be punitive. The decision on rent abatement was principled and to compensate the tenants for their loss of use of usable space. The award for moving costs was intended to compensate for inconvenience, aggravation and related expenses. The awards were reasonable both in fact and law and no reviewable error was made by the hearing officer. Corrigendum released dated November 15, 2011 and added to fulltext.