Landlord and tenant - Rules and by-laws - Conduct of tenant - Residential tenancy agreements - Termination; Judicial review - Compliance with legislation - Jurisdiction - Standard of review - Reasonableness simpliciter

Nethervue Park Ltd. v. MacKinnon

Applicant unsuccessfully applied to set aside a decision of the Rentalsman who had refused to issue a Notice to Quit on the respondent tenant due to improvements made to the property. Decision was held to be within range of acceptable outcomes and reasonable.

[2013] N.B.J. No. 21

2013 NBQB 15

New Brunswick Court of Queen's Bench

P.C. Garnett J.

January 9, 2013

The applicant landlord, Nethervue Park Ltd., applied pursuant to s. 27 of the Residential Tenancies Act to set aside a decision of the Rentalsman, who refused to issue a Notice to Quit on the Respondent tenant, Vernon MacKinnon.

The applicant operated a mini-home park in which the respondent owned a mobile home that he rented out to tenants. The applicant had written the respondent advising him that the home was in serious disrepair and listed 12 issues that required attention by March 30, 2012. The deadline passed without the issues being addressed and the applicant requested a Notice to Quit from the Rentalsman. The Rentalsman wrote to the respondent and issued a new deadline, which passed with the applicant being once again dissatisfied. The applicant requested a further Notice to Quit. The Rentalsman ultimately found that the park Rules and Regulations did not apply to the respondent since he was not party to a standard form lease, and that the property was not perfect but had been improved considerably.

The applicant argued that the Rentalsman erred in law in finding that the park Rules and Regulations did not apply to the respondent. The applicant argued that clauses contained in the agreement had the effect of making the park rules part of the agreement and the Rentalsman erred by not considering them. The Rentalsman contended that s. 5 of the Residential Tenancies Act provided the Rentalsman with jurisdiction to investigate and decide whether to issue the requested notice and that the decision is discretionary.

The application was denied. The court found that the Rentalsman’s decision was based on his assessment of the improvements made by the registrant, and was an exercise of his discretion under the Act. Whether the park rules formed part of the agreement was an issue of mixed fact and law and as the decision was justified, transparent, intelligible and fell within a range of acceptable outcomes, it was reasonable.