12, 2019 the Commission received a Notice of Appeal from Bruce Allen of
Diversified Property & Management Services ("Mr. Allen"), the representative
of a lessor, Dominique Des Lauriers (the "Appellant"), requesting an appeal
of Order LD19-078 dated March 6, 2019 issued by the Director of Residential
Rental Property (the "Director").
By way of background, on January 17,
2019, two lessees, Volodymyr Zagorodniy and Olga Zagorodnya (the
"Respondents") 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 January 15, 2019 signed by Mr. Allen on behalf of the
The matter was heard by the Director
on March 1, 2019 and in Order 19-078 the Director ordered:
"IT IS THEREFORE
1. 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."
heard the appeal on April 5, 2019. Mr.
Allen participated and testified for the Appellant.
The Appellant participated and testified by telephone. The
Respondents participated and testified.
Raymundo Yu ("Mr. Yu") assisted the Respondents and also testified.
Mr. Allen stated that the Appellant
had provided the Respondents with 75 days notice rather than the minimum 60
days notice that is required. He
stated that while the renovation provision was checked off on the January
15, 2019 Form 4 Notice of Termination by Lessor of Rental Agreement, an
appendix A was not filed because the Appellant does not yet know how much
renovation work she will be doing.
Mr. Allen stated that the renovation reason was checked off by
mistake. Mr. Allen stated that
the Appellant wishes to move into 35 Corrigan Court for her permanent
The Appellant testified that she is
moving back to Prince Edward Island in April 2019 and she has nowhere else
to live. She testified that the
other side of the building, 33 Corrigan Court, is already rented out as
three rooms and she wishes to reside in 35 Corrigan Court.
She intends to stay at 35 Corrigan Court as her primary residence and
continue to rent 33 Corrigan Court.
The Appellant also testified to some
matters she raised in attachments to a February 27, 2019 email to the
Director's staff (Exhibit E-5, pages 7 to 15 of the appeal record).
She stated that she and Mr. Allen had asked the Director to take this
information "off the table".
Mr. Yu testified that the
Respondents were good to the community, good neighbours and a good family.
At the hearing, Mr. Yu submitted Exhibit E-15 which contains a letter
from himself as well as a letter from each of the Respondents.
The Respondents testified that they
moved into 35 Corrigan Court in February 2015 when the building was owned by
a previous owner. They testified
that they always paid their rent on time.
They also addressed some of the matters raised by the Appellant in
The appeal is denied and Director's
Order LD19-078 is confirmed.
The Appellant served the Respondents
with a Form 4 Notice of Termination by Lessor of Rental Agreement dated
January 15, 2019. That Form 4
checked off two reasons for seeking the termination of the rental agreement;
the first reason pertaining to the Appellant seeking possession of the
premises for occupation by herself pursuant to section 15.(1)(a) of the
Rental of Residential Property Act (the
"Act") and the second reason
pertaining to the Appellant seeking to renovate the premises pursuant to
section 15.(1)(c) of the Act.
These two sections of the Act read as follows:
15. Personal use, renovations,
(1) Where the lessor in good
faith seeks to
(a) have possession of the
premises for occupation by himself, his spouse, children or parents, or the
parents of his spouse;
(c) renovate the premises
where the nature of the renovations are advised to the lessee and are such
that the renovations cannot be carried out while the lessee occupies the
the lessor may serve the
lessee with a notice of termination to be effective not less than two months
after it is served.
As the nature of the renovations
were never provided to the Respondent, the reason for termination pertaining
to section 15.(1)(c) is not valid.
It appears to be the position of the Appellant that the section
15.(1)(c) provision was checked off in error and the Appellant wishes to
proceed solely on the section 15.(1)(a) provision, namely that she seeks
possession of 35 Corrigan Court for her own occupation.
"Good faith" is at the heart of a
section 15.(1)(a) application for possession of the premises for the
occupation by the lessor.
The Ontario case of TSL-89512-17
(Re), 2018 CanLII 42635 (ON LTB) provides a helpful summary of the
interpretation of �good faith' in the context of a lessor seeking to obtain
possession for occupation by the lessor or a close member of the lessor's
family. While the Ontario
legislation is not identical to the
Act, it is similar.
In TSL-89512-17, Roderick Flynn, member of the Landlord and Tenant
Section 48(1) [a provision similar to section 15.(1)(a) of
Act] requires that, in order to be successful in this application, the
Landlord must satisfy me that at the time of the service of the N12 Notice,
he had a good faith intention to move into the unit.
The relevant case law is clear that the test of good faith
is genuine intention to occupy the residential unit (Feeney v. Noble (1994),
19, O.R. (3d) (Div. Ct.).
However, the relevant precedents also affirm that I may draw
inferences about the Landlord's good faith from the Landlord's conduct and
motives (Fava v. Harrison 2014 ONSC 3352 (ONSC DC) (CanLII).
In this case, having considered the totality of the
evidence, I am not persuaded, on a balance of probabilities of the
Landlord's good faith intention to reside in the unit.
In my view, what I am left with, on the totality of the
evidence, is ambiguity about the Landlord's good faith in serving the N12
Notice; leading me to infer, as I am permitted to do; that the N12 Notice
was served for a reason other than a good faith intention to occupy the
As I am not satisfied that the Landlord served the N12
Notice in good faith, the requirement under s.48(1) of the Act has not been
satisfied and this application must fail.
[Explanation added by the
Order LR93-9 the Commission heard
an appeal of a decision of the Director pertaining to the service of a Form
4 Notice of Termination by Lessor of Rental Agreement pertaining to section
15.(1)(a) of the
Act. In Order
LR93-9 the Commission wrote:
at the hearing clearly showed a serious breakdown in relations between the
Lessor and Lessee, with much bitterness present on both sides. Much time was
devoted to complaints by each about the other. Such evidence would be
relevant if an argument was seriously being made that the Notice of
Termination was not made in good faith. However, the evidence in this case
is quite strong as to the desire of the Lessor to have the premises for
himself and the desire of the Lessor and his future wife to have the
premises to themselves.
In the present appeal, Exhibit E-3
(found on page 5 of the appeal record) provides evidence in the form of an
undated letter of recommendation suggesting a very positive past landlord
and tenant relationship between the parties.
However, there is much evidence on the record, both in documents
filed and in oral testimony, as to recent past difficulties between the
parties. The evidence suggests
that the relationship between the parties became strained in 2018 and
remains so today.
While these difficulties may provide
an alternate motive for terminating the tenancy,
Order LR93-9 demonstrates
that such motive may also co-exist with a lessor seeking, in good faith,
possession of the premises in order to personally occupy the premises.
At the hearing before the Commission
there was minimal detail in the Appellant's oral evidence as to the
circumstances as to why she wished to obtain possession of 35 Corrigan
Court. By contrast, in
"...the evidence in this case is quite strong as to the desire of the
Lessor to have the premises for himself and the desire of the Lessor and his
future wife to have the premises to themselves."
The Commission must decide whether,
on the civil standard of the balance of probabilities, the Appellant, at the
time she served the Form 4, had a good faith intention to personally occupy
35 Corrigan Court. Feeney v.
Noble, which was referenced earlier, equates a good faith intention to
occupy the premises with a genuine intention to occupy the premises.
Based on the oral testimony before
the Commission on April 5, 2019, it is certainly possible that the Appellant
has the present intention of moving in to 35 Corrigan Court.
However, for the purposes of this
appeal, the Appellant's present intention is not relevant.
What is relevant is the Appellant's genuine intention when the
January 15, 2019 Form 4 was served on the Respondents.
Section 26.(1) of the
(1) An appeal to the Commission
shall be by way of a re-hearing, and the Commission may receive and accept
such evidence and information on oath or affidavit as in its discretion it
considers fit and make such decision or order as the Director is authorized
to make under this Act.
The Appellant's written statement (a
portion of Exhibit E-5 filed in response to the Respondents' Form 6) found
on pages 8 through 10 of the appeal record identifies her concerns as to why
she did not wish to return to her residence at 33 Corrigan Court,
immediately next door to 35 Corrigan Court.
This statement also provides considerable detail about the dispute
between the Appellant and one of the Respondents, specifically Mr.
Director's Order LD19-078 forms part
of the record before the Commission.
Neither party took specific issue with the summary of testimony
contained in the Director's Order.
The last paragraph of page 3 of
Order LD19-078 contains a summary of the Appellant's testimony before the
Director whereby the Appellant explained why she did not wish to move into
33 Corrigan Court next door to 35 Corrigan Court. The Director's Rental Property Officer offers the following
analysis at the bottom of page 4 and
continuing on the top of page 5 of the Director's Order:
Further, the requirement that the
Notice of Termination (Form 4) dated January 15, 2019 be given "in good
faith" means that if challenged, the lessor must show that the reason the
notice was served was for renovations or for the lessor's occupation of the
premises and not for any other reason.
The lessor admitted that the reason the Notice of Termination (Form
4) dated January 15, 2019 was served on the lessees was due to the dispute
between the lessor and Mr. Zagorodniy over the oil drum.
The lessor did not want to live next to Mr. Zagorodniy and for this
reason served the lessees with the Notice of Termination (Form 4).
Based on the evidence presented, the Officer finds that the lessor
did not serve the Notice of Termination (Form 4) dated January 15, 2019 in
The Commission finds that the record
reveals a breakdown in the landlord tenant relationship.
The record before the Commission reveals the Appellant's intentions
at the time the January 15, 2019 Form 4 was served on the Respondents.
Applying the civil standard of the balance of probabilities, the
Commission finds that the evidence is sufficient to support a finding that
the January 15, 2019 Form 4 was not served in good faith.
Accordingly, the appeal is denied
and Director's Order LR19-078
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 LD19-078 is confirmed.
at Charlottetown, Prince Edward Island,
this 12th 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.