On September 10, 2018 the Commission
received a Notice of Appeal from a lessor, Rita Zhao (the "Appellant"),
requesting an appeal of Order LD18-286 dated September 10, 2018 issued by
the Director of Residential Rental Property (the "Director").
By way of background, on August 21,
2018, a lessee, Catherine Milligan (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 August 20, 2018 to be
effective September 20, 2018 signed by the Appellant.
The matter was heard by the Director
on September 4, 2018 and in Order LD18-286 the Director ordered:
"IT IS THEREFORE
The lessee's application to set aside the Notice of
Termination by Lessor of Rental Agreement (Form 6) is allowed and the rental
agreement shall continue to be in full force and effect."
The Commission heard the appeal on
October 3, 2018. The Appellant
was present at the hearing along with her legal counsel Barry Burley ("Mr.
Burley"). The Respondent was also present.
The Appellant was adamant that she did not sign the
cleaning agreement. She stated
that she and the Respondent had an oral cleaning agreement for $100.00 to
clean apartment #6. Mr. Burley filed Exhibit E-16 which contains text
messages from another tenant to the Appellant expressing concern that
someone was leaving the door open in winter, the furnace running non-stop as
a result and expressing concern the furnace might catch on fire.
Mr. Burley raised safety concerns and financial concerns, given
increased consumption of furnace oil.
Mr. Burley submitted that the inspection letter of September 4, 2018
(Exhibit E-14) demonstrates a deteriorating landlord tenant relationship.
The Respondent stated that she did
not leave the back door open.
She stated that a former tenant couple had a dog and left the back door open
in the process of letting their dog in and out.
The Respondent stated that she and those former neighbours did not
get along ultimately culminating in the filing of a Recognizance under
section 810 requiring the male member of the neighbour couple to refrain
from any contact with the Respondent (Exhibit E-13).
The Commission denies the appeal and upholds the decision
of the Director for the reasons that follow.
The Appellant seeks to terminate the
rental agreement with the Respondent according to subsection 14(1)(e) of the
Rental of Residential Property Act:
The lessor may also serve a notice of termination upon the
(e) the safety or other lawful
right or interest of the lessor or other lessee in the residential property
has been seriously impaired by an act or omission of the lessee or a person
permitted in or on the residential property or residential premises by him;
Mr. Burley referred several times to
Exhibit E-16, and thus a careful examination of that document is in order.
The following are some excerpts from these text messages from a third
party tenant living in the same apartment building as the Respondent:
I wanted to tell you that someone in the building is leaving
open the back door to get the furnace to run nonstop for more heat.
I closed it 3 three different times.
It is dangerous because the furnace can overheat and catch
fire when the thermostat doesn't shut it down because of the cold outside in
Please tell number 5 [apparently referring to the Respondent] not
to allow this again.
The building could burn down plus it is hard on the oil bill.
It is [name redacted for privacy]
Someone is putting dirt in my
apartment under the door.
It has happened three times.
At the time, the Respondent was also
serving as apartment building manager.
While E-16 indicates that "someone" is leaving the door open and
"someone" is putting dirt under
the text author's apartment door, the sole allegation against the Respondent
is that she, apparently as building manager, was not monitoring the status
of the door or keeping tabs on the activities of mischievous tenants.
There is no allegation that the Respondent was the cause of the door
left open or the dirt being placed under the door.
The onus lies on a lessor where the
lessor seeks to terminate a rental agreement. Neither party filed compelling
evidence to support their position, but the onus is on the Appellant to
persuade the Commission that the findings and decision of the Director
should be overturned and the rental agreement terminated on the basis of a
serious impairment of the safety or other lawful right of the lessor or
another lessee by an act or omission by the Respondent.
The evidence offered by the Appellant simply did not meet that
Accordingly, the Commission agrees
with the findings and the decision of the Director in Order LD18-286.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
The appeal is denied.
Director's Order LD18-286 is confirmed.
at Charlottetown, Prince Edward Island,
this 11th 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.