On June 12, 2018 the
Commission received a Notice of Appeal from a lessor,
Brent McQuaid (the "Appellant"), requesting an appeal of Order LD18-180
dated June 6, 2018 issued by the Director of Residential Rental Property
By way of background, on May 18,
2018, a lessee, Kelley McQuaid (the "Respondent") filed with the Director a
Form 6 - Application by Lessee to Set Aside Notice of Termination.
Attached to the Form 6 was a Form 4 - Notice of Termination by Lessor
of Rental Agreement dated May 14, 2018 signed by the Appellant.
The matter was heard by the Director
on June 5, 2018 and in Order LD18-180 the Director ordered:
"IT IS THEREFORE ORDERED
1. The lessee's
application to set aside the Notice of Termination by Lessor of Rental
Agreement (Form 6) dated May 14, 2018 for effect June 14, 2018 is allowed
and the rental agreement shall continue to be in full force and effect."
The Commission heard the appeal on
June 18, 2018. The Appellant was
not present at the hearing but was represented by his legal counsel Maria
Sanderson ("Appellant's Counsel").
Andrew Chisholm ("Mr. Chisholm"), Luke Crighton ("Mr. Crighton") and
Debbie O'Brien ("Ms. O'Brien") tested on behalf of the Appellant.
The Respondent was present at the hearing and testified on her own
Appellant's Counsel presented five
new exhibits, Exhibits E-9 through E-13.
Mr. Crighton testified on behalf of
the Appellant. Mr. Crighton is a
tenant at 25 Glen Stewart Drive.
Mr. Crighton reviewed his chronology contained in Exhibit E-5 and his recent
letter attached to Exhibit E-13.
Mr. Crighton's primary complaint is the sound of loud adult arguing from the
Mr. Chisholm is the Appellant's
handyman. Mr. Chisholm prepared
an estimate for replacement of the fence and disposal of the old fence
(Exhibit E-13). Mr. Chisholm
testified that the fence was broken in October 2017 and was "stood up" after
that but "not fixed right".
Ms. O'Brien is both a tenant and the
superintendent at 25 Glen Stewart Drive.
In her testimony, she read from her statement (Exhibit E-4) and from
her updated June 16, 2018 statement (E-10).
Ms. O'Brien stated that she had seen the fence broken by the
Respondent's son in April 2018.
Ms. O'Brien stated that she was intimidated by the presence of one of the
Respondent's brothers in the hallway on the third floor when he had no
reason to be on that floor. She
also expressed concern that people were parking in a no parking zone.
She also testified to other details which form part of the
Commission's audio record.
Appellant's Counsel submitted that,
based on the balance of probabilities, there was sufficient evidence to
support the termination of the rental agreement, and that the Director's
Order should be set aside with a termination dates either as set out in the
Notice of Termination by Lessor of Rental Agreement (Form 4) dated May 14,
2018 or at a date of the Commission's discretion.
The Respondent testified that she
lives in her apartment at 25 Glen Stewart Drive along with her two young
children. She testified that she
knows many of the other tenants in the apartment building but only Ms.
O'Brien and Mr. Crighton have complained.
She testified that she occasionally parks in the lane when she is
bringing groceries into her unit.
She testified that other people park there as well and noted that the
car pictured in Exhibit E-11 is not hers.
She testified that in the autumn of 2017 she and the Appellant had
agreed that she could stay until the end of the school year provided there
were no further complaints.
Respondent submitted that she needs additional time to find another
The appeal is allowed and Director's
Order LD18-180 is reversed for the reasons that follow.
The Commission heard the appeal as a
hearing de novo and had the benefit of the testimony of two tenants
of 25 Glen Stewart Drive as well as Exhibits E-9 through E-13.
The Director did not have the benefit of this additional testimony
and these additional exhibits.
With regard for the Appellant's
concerns pursuant to section 14(1)(b) [damage beyond reasonable wear and
tear] of the
Rental of Residential Property Act
Act"), the Commission finds that the evidence does
not support a termination of the residential rental agreement for this
reason alone. Given the evidence
before the Commission, it would appear most unlikely that a fence in sound
condition could be toppled by one young child and it was more probable than
not that the fence was in an advanced state of decay.
Such a conclusion is further bolstered by the presence of Exhibit
E-12, which provides a quote for a complete replacement of the fence and the
removal of the old fence, neither of which would be necessary if the fence
were in sound condition.
However, the Appellant also
requested the termination of the rental agreement pursuant to section
14(1)(a) of the
this regard, the Commission finds that the evidence supports a finding that
the Respondent or her adult guests did interfere with the quiet enjoyment of
other lessees during the spring of 2018.
Accordingly, the Commission, hearing
the matter de novo, allows the appeal and reverses the Director's
rental agreement between the parties is hereby terminated as of 11:59 p.m.
on Tuesday, July 31, 2018 and the Respondent and all occupants of the
premises shall vacate the premises on or before that date and time.
If the Respondent fails to vacate the premises by this date and time,
then the Appellant shall be entitled to apply to the Director without
further notice to the Respondent for an order directing the Sheriff to put
the Appellant in possession of the premises.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
The appeal is
allowed and Director's Order LD18-180 is hereby overturned.
The rental agreement between the parties is
hereby terminated effective 11:59 p.m. on Tuesday, July 31, 2018.
The Respondent [lessee] and all occupants
of her apartment shall vacate the premises and put the Appellant
[lessor] in full possession of the premises on or before 11:59 p.m. on
Tuesday, July 31, 2018.
If the Respondent
[lessee] fails to vacate the premises in
accordance with paragraph 3 of this Order, then the Appellant [lessor]
shall be entitled to apply without further notice to the Respondent
[lessee] for an order directing the Sheriff to put the Appellant
[lessor] in possession of the premises.
at Charlottetown, Prince Edward Island,
this 20th day of
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.