On November 28, 2016 the Commission
received a Notice of Appeal from two lessees, Vicki Henderson and Loni
Henderson (the "Appellants"), requesting an appeal of Order LD16-338 dated
November 10, 2016 issued by the Director of Residential Rental Property (the
By way of background, on January 18,
2016 a lessor, Kevin MacKay (the "Respondent") filed with the Director a
Form 2 - Application for Enforcement of Statutory or Other Conditions of
Rental Agreement seeking a finding that rent is owed and an order that an
amount found to be owed by paid.
The matter was heard by the Director
on October 19, 2016 and in Order LD16-338 the Director ordered:
"IT IS THEREFORE
1. The lessees
shall pay to the lessors $1166.13 on or before December 4, 2016."
The Commission heard the appeal on
December 13, 2016. The
Appellants were present and were accompanied by their witnesses, Bobbi-Lea
Henderson and Margaret Chisholm.
The Respondent was also present.
The Appellants testified that they first became aware
of an infestation problem in October 2015.
They then promptly informed the Respondent of the infestation
problem. The Appellants
presented three new Exhibits, Exhibits E-15, E-16 and E-17.
In the Appellants' Notice of Appeal,
the Appellants disagreed with the amount of rent owing as established by the
Director. The Appellants also
requested that they be allowed to pay the amount owing in installments.
At the hearing they indicated that they could pay up to $50.00 every
The Respondent testified as to his
knowledge and actions with respect to the problem.
The Respondent told the Commission that once he became fully aware of
the infestation problem in early December 2015 he hired pest control
professionals to treat the premises.
The Respondent told the Commission that he would accept an
installment plan so long as the outstanding rent was paid within one year.
evidence before the Commission strongly indicates that the introduction of
the pests was not in any way caused by either party to this appeal.
The Commission allows the appeal in
part, for the reasons stated below.
Rental of Residential Property Act
a lessee is required to pay rent in accordance with the rental
agreement. A lessee is
allowed to withhold rent. The
Commission and the Director are required to follow the
The Commission must follow the
Act even in compelling circumstances
such as the present matter. If a
lessee believes that a lessor has failed to meet one or more statutory
conditions, the lessee may make a written application to the Director
pursuant to section 8 of the
Act in order to seek a
The Director had found that the
Appellants owe the sum of $1166.13 to the Respondent for unpaid rent.
The Commission finds that the Director did not take into account
$20.00 in interest accrued on the security deposit which was noted on the
Respondent's Form 8.
Accordingly, the Commission adjusts the sum owed by the Appellants to the
Respondent to $1146.13. The
Commission finds that this sum is due and payable on or before January 31,
The Appellants have requested that
they be able to pay the sum owing to the Respondent in installments to be
paid every two weeks and not exceeding the sum of $50.00 per installment.
The Respondent has consented to this request, so long as the time
period does not exceed 12 months.
Given the oral consent of the
parties expressed at the hearing and recorded on the Commission's hearing
audio record, the Commission is prepared to order the suspension of the due
date on the following terms and conditions:
within two weeks of the date of this Order, the Appellants shall pay the sum
of $50.00 every two weeks for 22 such payments, followed by a 23rd and final
payment of $46.13. As long as
these payments are met on these terms and without any missed or void
payments, the January 31, 2017 due date is suspended and no rent will be
owing upon payment of the 23rd and final payment.
However, in the event of a missed payment, or a payment made void by
way of a cheque returned for insufficient funds or any other such voiding of
payment, the balance remaining will become immediately due and payable.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
The appeal is allowed in part.
The Appellants [lessees] shall pay to the
lessors the sum of $1146.13 on or before January 31, 2017. This
represents a minor variation from the Director's Oder.
the due date for payment above, the parties have consented to payment of
the above sum in instalments.
Provided that the terms and conditions set out
in this Order are followed, the due date for payment above is hereby
In the event the instalment terms and
conditions are not followed, the balance owing shall immediately become
due and payable.
at Charlottetown, Prince Edward Island,
this 14th day of December, 2016.
John Broderick Commissioner
Ferne MacPhail, Commissioner
Jean Tingley, Commisisoner
Sections 26.(2), 26.(3), 26.(4) and
26.(5) of the
Rental of Residential Property Act
provide as follows:
26.(2) A lessor or lessee may, within fifteen
days of the decision of the Commission, appeal to the court on a
question of law only.
(3) The rules of court governing appeals apply
to an appeal under subsection (2).
(4) Where the Commission has confirmed,
reversed or varied an order of the Director and no appeal has been taken
within the time specified in subsection (2), the lessor or lessee may
file the order in the court.
(5) Where an order is filed pursuant to
subsection (4), it may be enforced as if it were an order of the court.
NOTICE: IRAC File Retention
In accordance with the
Commission's Records Retention and Disposition Schedule, the material
contained in the official file regarding this matter will be retained by the
Commission for a period of 2 years.