Lease-breaking doctors' notes costing landlords thousands

Eric Slone is worried about a big issue emergingin Nova Scotia's small claims courts.

In the more than 10 years he's served as an adjudicator, Slonesaidthe use of physicians' certificates to break apartment leases has grown exponentially.

In a scathing decision on a landlord-tenant dispute Slonepenned in August, he questionedwhether doctors are performing due diligence in granting the lease-ending documents.

"I seriously question whether that physician, and maybe other physicians, are truly inquiring into the situation, perhaps not realizing that with a sign of their pen they may be costing a landlord thousands of dollars in lost rent," he wrote.

The Residential Tenancies Act says peoplecan get out of their lease if they have a significant deterioration in health. But they have to prove that by getting a certificate filled out by a doctor.

Doctors mustconsider three factors before issuing a certificate:

• Does the tenant's health cause a reduction in their income?
• Does it render the property inaccessible?
• Does it result in the tenant being unable to continue a lease?

Both physical and mental health are considered.

Fei v. Liu

The case Sloneadjudicated inAugust involvedYang Liu, who received a doctor's certificate stating he could not continue to live in his apartment because ofstress.

Liu said he had to be "ultra-quiet"when he returned to hisbuilding late at night to avoid disturbingthe landlord and other tenants. He was also stressed because the landlord had security cameras throughout the building.

The landlord, Lulu Chloe Fei, was suspicious of the certificate and went to the same walk-in clinic as Liu. She lied about her identity to the doctor, saying she was stressed and needed to leave her apartment. Fei testified that the doctor asked her very few questionsbefore signinga certificate for her.

"The more times I see [notes] that are granted on slender grounds, the less faith I'm going to place in it and I'm going to have to allow the hearing to inquire into whether or not it was legitimate," said Slone, who also questioned if walk-in clinic doctors should even be signing certificates.

'It's a burden on the courts'

Megan Deveaux, a community legal worker at Dalhousie Legal Aid, helped represent Yang Liu.

In 2013, the province changed its regulations around physician certificates, she said, moving to a short form for doctors to fill out rather than writing a letter explaining why a patient should be allowed out of their lease.

"I think that the form seems to have encouraged people to use it more," she said. "It's created a huge increase in the number of these [cases]."

The jump in certificates also led to an increase in landlords challenging them in court. Deveaux said her office used to deal with a couple of these cases a year, butthey now take on three or four a month.

"The landlord has a right to question thisif they have reason to think they're not legitimate," she said. "We end up having to go through usually at least two levels of hearings.It's expensive for the system."

Deveaux believes the problem could be solved if the forms doctors use are changed to include more information, or if doctors went back to writing letters on behalf of patients.

'Amajor concern for landlords'

Physicians' certificates have been a sore spot with landlords for yearsbut are of even greaterconcern now, according to an analyst with the Investment Property Owners Association of Nova Scotia.

More and more certificates are being issued, leaving landlords with empty rental units andforcingthem to spend money on renovations and advertising, said Kevin Russell.

"It can run into the thousands of dollars," he said. "The stress excuse is used a lotwhether it's stress about noise or about building conditions or living in the neighbourhood."

Nova Scotia and Quebec are the only two provinces witha provision allowing people to break a lease because of medical problems, Russell said. The association would like to see that section removed from the act.

Doctors not detectives

Dr. Ajantha Jayabarathan thinks removing the medical provision would be a huge mistake, sayingtenants need protection.

"There have been many patients in my practice that legitimately were suffering as a result of the conditions in which they were living, and some of those were horrific," she said.

As a family doctor with 25 years' experience,Jayabarathan said sheknows her patientssome of them for yearsand trusts them when they tell her their living arrangements are making them ill.

Doctors at walk-in clinics are in a difficult position, she said, because they likely don't have history with a patient. But they need to take their patients' concerns at face value, as many Nova Scotians do not have a family doctor, she said.

'May be a little bit unreasonable'

Dr. Maria Alexiadis fills out two orthree certificates a year. She's had patients whosechildren hadasthma and their apartment hadblack mould, but their landlord refused to do anything about it.

So Alexiadis wrote them a certificate to get out of their lease.

She said she questions her patients to help treat them, but asking doctors to investigate their patients' claims is almost impossible.

"We're seeing patients all through the day;very little time for breaks or anything else," she said. "So to ask us to do more than just being a physician and ask us to be detectives and ask questions in order to justify this may be a little bit unreasonable."