On March 19, 2018 the Commission received a Notice of
Appeal from a lessor, Diann Marshall ("Mrs. Marshall"), on behalf of herself
and Ken Marshall (collectively the "Appellants"), requesting an appeal of
Order LD18-087 dated March 14, 2018 issued by the Director of Residential
Rental Property (the "Director").
By way of background, on December 19, 2016 the lessees,
Ashley Clow and Janice Clow (collectively the "Respondents") filed with the
Director a Form 2 - Application for Enforcement of Statutory or Other
Conditions of Rental Agreement seeking a finding that the security deposit,
or part thereof, should be forfeited or returned and an order that an amount
found to be owed be paid.
On January 11, 2017, the Director of Residential Rental
Property wrote to the Appellants to inform them of the requirements under
Sections 10(4) and 10(5) of the
Rental of Residential Property Act(the
"Act") and requesting that they provide to her a copy of the Form 8 - Notice
of Intention to Retain Security Deposit.
The matter was heard by the Director on March 5, 2018
and in Order LD18-087 the Director ordered:
"IT IS THEREFORE ORDERED THAT
The lessors shall pay the sum of $754.15 to the Acting Director
of Residential Rental Property in trust for the lessees on or before April
(Note: Cheque to be made payable to The Island
Regulatory and Appeals Commission.)"
The Commission heard the appeal on April 17, 2018.
The Appellant Diann Marshall and Stacey Cavanagh ("Ms. Cavanagh")
were present. Both of the
Respondents were also present.
Mrs. Marshall testified that she believed that Mr.
Marshall misunderstood the requirement to pay the security deposit funds
into trust. She acknowledged
that the Form 8 was not filed on time, but it has now been filed and the
security deposit funds have been paid into the Commission in trust.
Mrs. Marshall testified that the Respondents had been told the unit
was a non-smoking unit.
Ms. Cavanagh testified that both cleaning and painting
of the unit was necessary as otherwise the nicotine stains will later bleed
through the paint.
Mrs. Clow testified that there was "no no-smoking
policy". Mrs. Clow further
testified that Mr. Marshall was well aware that the Respondents smoked in
the unit as he had visited the Respondents in the unit.
Mr. Clow testified that if he had been made aware of
the need for additional cleaning prior to vacating the unit, he could have
dealt with the additional cleaning as he works for a restoration company.
The Commission allows the appeal for the reasons that
Commission staff confirmed that at the time the
Appellants filed the appeal an invoice was paid in the amount of $754.15
representing the security deposit plus accrued interest.
The Commission agrees with the findings of the Director
that the Appellants have proven their claim against the Respondent's
security deposit in the amount of $740.00.
However, based on the fact that the Form 8 is now on
file and based on the fact that the security deposit funds plus interest has
been paid in trust to the Commission in compliance with the
Rental of Residential Property Act,
the Commission reverses the finding of the Director and finds that the sum
of $754.15, representing the security deposit together with accrued
interest, be paid to the Appellants.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
The appeal is
The Appellants (lessors) shall receive the
security deposit and interest in the amount of $754.15 held in trust.
Payment shall be made when the appeal
period has expired.
at Charlottetown, Prince Edward Island,
this 17th day of
John Broderick, Commissioner
M. Douglas Clow, Vice-Chair
Jean Tingley, Commissioner
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.