Executive Summary: Key Legal and Evidentiary Issues

• A landlord sought judicial review of a Residential Tenancies Officer's decision invalidating a notice of termination.
   
• Jurisdiction under Section 24.1(1) of the Residential Tenancies Act was disputed on the basis that no formal complaint had been made.
   
• Whether the correct statutory provision, Section 24.1(1) or Section 24.12(1), governed the analysis was also contested.
   
• Procedural fairness was raised initially but abandoned by the landlord at the hearing.
   
• Timing between the tenant's outreach to the Tenant and Landlord Relations Office and the landlord's notice of termination was central to the retaliation finding.
   
• Findings of fact made by a Residential Tenancies Officer are not subject to review on an application of this kind.
   

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Facts of the case

Gaudet Properties Ltd. owns a building at 190 Millennium Drive in Quispamsis, New Brunswick, where Tina Henderson resided in unit 201. In August 2024, Henderson received notice that her rent would increase from $1,550.00 to $1,750.00, a 12.5% increase. On January 13, 2025, she contacted the Tenant and Landlord Relations Office (TLRO) for assistance, and was advised the following day that rent increases taking effect after February 1, 2025 would be capped at 3% under recent amending legislation. Henderson relayed this information to Robert Gaudet, the principal of Gaudet Properties Ltd., by text on January 14, 2025. Gaudet responded by voicemail the same day, stating the increase would proceed as originally requested and that legal counsel had been consulted. Henderson later sought further assistance from the TLRO regarding the rent increase, but her file was closed on January 27, 2025 because no notice of increase had been provided. On January 31, 2025, Henderson received a notice of termination effective February 28, 2025, on the stated basis that Gaudet and his family intended to occupy the unit. She filed an application for assistance with the TLRO the same day, alleging the notice was retaliatory. A Residential Tenancies Officer (RTO), Marcel Day, was appointed to investigate.

Policy and legislative provisions at issue

The application turned on two provisions of the Residential Tenancies Act. Section 24.1(1) provides that a notice of termination served within one year of a tenant's complaint against a landlord is invalid unless the tenant failed to contest it within 15 days or the landlord satisfies the RTO that the notice was not served because of the complaint. Section 24.12(1) permits a landlord to serve a notice of termination where, among other grounds, the landlord intends in good faith that the premises will be occupied by the landlord or an immediate family member. During his investigation, the RTO's own inquiries disclosed two leases commencing at 190 Millennium Drive on March 1, 2025, and advertisements for two vacant units in an adjoining building owned by Gaudet Properties Ltd. for the same date. Gaudet declined to provide further evidence regarding the availability of other units, asserting he had already supplied everything required under Section 24.12.

Reasoning and analysis

Justice Stephenson addressed three grounds raised by Gaudet Properties Ltd. On jurisdiction, the Applicant argued no formal complaint had been made to trigger Section 24.1(1). The Court relied on Justice Dysart's reasoning in Tammy Purdy & Todd MacLellan v. Kim Estabrooks, 2025 NBKB 164, that the term "complaint" is not restricted to formal written submissions and includes a tenant's objection to something done by the landlord. Applying that reasoning, the Court found Henderson's outreach to the TLRO and her relaying of its advice to Gaudet, followed by his voicemail rejecting the capped increase, could reasonably be seen as engendering termination for an improper purpose. Consequently, the jurisdictional challenge was dismissed. On the second ground, the Court found both Sections 24.1(1) and 24.12(1) had properly been identified by the TLRO and RTO throughout their communications with the Applicant, and that the RTO was entitled to ground the Decision in Section 24.1(1) despite Gaudet's insistence that Section 24.12(1) governed. On the third ground, the Court found the Applicant had been given repeated opportunities to provide evidence, including regarding the availability of other units, and had declined to do so. The Court noted one imprecision in the RTO's language describing his role using the word "and" rather than "or" as between the two sections, but found this immaterial given the transparency of the process and the strength of the retaliation finding. The Court also observed that the validity of the province's rent cap provisions was not relevant, since no rent increase had actually been served or acted upon.

Ruling and overall outcome

Justice Stephenson dismissed the Application in its entirety, upholding the Residential Tenancies Officer's determination that the notice of termination served on Tina Henderson was invalid under Section 24.1(1) of the Residential Tenancies Act, with the result that her tenancy continued under the existing tenancy agreement. As Henderson did not respond to or appear on the Application, no order of costs was made.