On October 5, 2018 the Commission
received a Notice of Appeal from a lessor, Canada Prajna Wisdom Co. (the
"Appellant"), requesting an appeal of Order LD18-309 dated September 28,
2018 issued by the Director of Residential Rental Property (the "Director").
By way of background, on September
18, 2018, a lessee, Alfred Barriault (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 October 17, 2018 to be
effective October 18, 2018 signed by the Appellant.
At the hearing before the Director, both parties agreed that the Form
4 was dated incorrectly, and that it should have been dated September 17,
2018 for effect October 18, 2018.
The matter was heard by the Director
on September 26, 2018 and in Order LD18-309 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 24, 2018. The Appellant
was represented by Corey MacDonald ("Mr. MacDonald"). Don MacFadyen,
Clifford Fitzpatrick, Robert Faithful, Leonard Toole, Charlene Conway and
Gordon Faithful testified on behalf of the Appellant.
The Respondent was also present and testified.
Mr. MacDonald called six witnesses,
five of which are current tenants living at 307 University Avenue.
The remaining witness lives in an
apartment building across the street which is not owned by the Appellant.
These witnesses testified to their interactions with the Respondent
and also testified as to behaviour that they attribute to the Respondent.
Mr. MacDonald submitted that the
actions of the Respondent interfere with the quiet enjoyment of other
tenants and that the rental agreement between the Respondent and the
Appellant should be terminated.
The Respondent testified, denying
some of the allegations and explaining that other interactions were
misstated. As an example of the
latter, he testified that he did not accuse a fellow tenant of putting paint
on his car; rather he asked that tenant if he had seen someone put paint on
The Commission denies the appeal and
upholds Director's Order LD18-309.
Much of the testimony offered by the
Appellant's witnesses concerned events that occurred some time ago, such as
two years ago. Some evidence
involved some conjecture, as the witness felt the Respondent did something
but did not actually see him do it.
The burden of proof rests with a
lessor seeking to terminate a rental agreement on the basis of interference
by one lessee with the quiet enjoyment of other lessees.
The evidence before the Commission included some relatively recent
events but also other events that occurred approximately two years ago.
While the evidence comes close to
being sufficient to terminate the rental agreement, it is not quite
sufficient to satisfy the burden of proof, which is based on the civil
standard of the balance of probabilities.
In the event the Respondent persists
with this pattern of behaviour, the Appellant is certainly free to file a
fresh application with the Director, supported by more recent and less
speculative evidence. If the
Respondent is found to have persisted in his behaviour, it is quite possible
that either the Director, or the Commission on appeal, will find that the
evidence has been sufficient to meet the burden of proof and thus warrant a
termination of the rental agreement.
Accordingly, the Respondent should consider himself cautioned.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
The appeal is denied.
Order LD18-309 is confirmed.