On April 7, 2018 the Commission
received a Notice of Appeal from a lessee, James Rayner ("Mr. Rayner") on
behalf of himself, Nicole Rayner and all occupants (collectively the
"Appellants"), requesting an appeal of Order LD18-102 dated March 26, 2018
issued by the Director of Residential Rental Property (the "Director").
By way of background, on February 8,
2018 the lessor, ATO Properties Ltd.(the "Respondent") filed with the
Director a Form 2 - Application for Enforcement of Statutory or Other
Conditions of Rental Agreement seeking an order that possession of the
residential premises be surrendered to the lessor and directing the Sheriff
to put the lessor in possession.
Attached to the Form 2 was a Form 4 - Notice of Termination by Lessor of
Rental Agreement dated November 24, 2017.
The matter was heard by the Director
on March 21, 2018 and in Order LD18-102 the Director ordered:
"IT IS THEREFORE
1. Possession of the
residential premises be surrendered to the lessor and the Sheriff is
directed to put the lessor in possession of the residential premises at
12:00 noon on Friday, April 6, 2018."
The Commission heard the appeal on
May 3, 2018. The Appellants were
represented by Mr. Rayner. The
Respondent was represented by Dan Murray ("Mr. Murray").
Mr. Rayner testified that previous
occupants had partitioned some areas in the basement.
Current occupants were using these areas as a music room and a makeup
room. Mr. Rayner acknowledged
that there was a cot in each of these two spaces.
He testified that each occupant had a bed in the finished level of
the residential premises. He
testified that Service Canada had inspected the premises and had no
Mr. Murray testified that upon
inspection in autumn of 2017 the Respondent became aware that there were
beds located in the basement.
The Respondent then advised Mr. Rayner by letter to remove the partitions.
However, a follow up inspection in early 2018 revealed that the
partitions were still in place.
The Respondent then initiated the process to terminate the rental agreement
with Mr. Rayner.
Mr. Murray testified that there were
no egress windows or doors in the basement and thus it would be a violation
of the fire code to permit anyone to sleep in the basement.
Mr. Murray told the Commission that,
upon the Respondent gaining possession of the residential premises, the
occupants of the residential premises would be permitted to stay in the
residential premises provided that the basement was not used for sleeping
and that the terms of the rental agreement were followed by the occupants.
The Commission denies the appeal for
the reasons that follow.
The Respondent identified a serious
concern following an inspection of the residential premises in the autumn of
2017. The Respondent advised the
Appellant by letter to remove the partitions and then followed up with an
inspection in early 2018, at which time the partitions were found to be
still in place.
While the presence of partitions in
the basement is not, by itself, necessarily a violation of fire code
requirements; it appears that the presence of partitions have, in this
situation, encouraged occupants to have placed beds or cots in the basement.
This strongly suggests that some people are sleeping in a basement
that does not meet fire code egress requirements.
This is a violation of the fire code and places these people at risk.
Given the potential for tragic consequences, the Respondent was
justified in terminating the rental agreement when the Appellant failed to
promptly act to remove the partitions.
Accordingly, the Commission denies the appeal and upholds Director-s Order
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
The appeal is
Director's Order LD18-102 is upheld in its
at Charlottetown, Prince Edward Island,
this 4th 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.