On August 28, 2019 the Commission
received a Notice of Appeal signed by a lessor, Teresa Cook ("Ms. Cook") on
behalf of herself and Dale Cook ("Mr. Cook") (collectively the "Appellants")
requesting an appeal of Order LD19-386 dated August 26, 2019 issued by the
Director of Residential Rental Property (the Director).
By way of background, on August 12,
2019 two lessees, Barbara Power ("Ms. Power") and Andrew Pollock ("Mr.
Pollock") (together 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 August 7, 2019 signed by Mr. Cook.
The matter was heard by the Director
on August 21, 2019 and in Order LD19-386 the Director ordered:
IT IS THEREFORE
The lessees' Application by Lessee to Set Aside Notice of
Termination (Form 6) is allowed and the rental agreement shall continue to
be in full force and effect"
The Commission heard the appeal on
September 5, 2019. The
Appellants were present at the
hearing. The Respondents were
also present at the hearing.
Ms. Cook testified that the
Respondents had received expressions of concern from other tenants about the
behaviour of the Respondents.
Ms. Cook stated that she feels intimidated by the Respondents.
She expressed concern about the Respondents parking in such a manner
as to take up two parking spaces with one vehicle.
She expressed concern about noise and foul language.
She noted that one tenant couple has left and a second tenant couple
The Respondents testified that they
have lived in their apartment for a year and a half but the problems only
began recently after the Appellants informed them that they had to remove a
wooden cat structure from their balcony.
Mr. Pollock testified that he used a hammer to take apart the
structure as he did not have other tools.
The Respondents explained that they parked straddling the parking lot
line to provide more room for a person with mobility needs and to avoid door
damage to their vehicle.
Both parties submitted pictures and
videos in an effort to establish the points they tried to make.
The appeal is denied and Director's
Order LD19-386 is confirmed.
The Appellants seek to terminate the
rental agreement on the basis of sections 14.(1)(a) ("clause (a)") and
14.(1)(e) ("clause e") of the Act.
Clause (a) concerns the breach of
statutory condition 3 or 4 or any other term of the rental agreement other
than failure to pay rent. In the
present matter, the Appellants allege a breach of statutory condition 3:
The lessee and any person
admitted to the premises by the lessee shall conduct themselves in such a
manner as not to interfere with the possession, occupancy or quiet enjoyment
of other lessees.
Clause (e) reads:
14.(1)(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;
With respect to clause (a) the
available evidence suggests conduct that gets close to establishing a breach
of quiet enjoyment but ultimately fails.
Had the complaining tenants testified before the Commission the
evidence may have been sufficiently compelling to establish a breach of
statutory condition 3.
With respect to clause (e) the
safety or other lawful right or interest of the lessor or other lessee must
be "seriously impaired". The
evidence before the Commission does not demonstrate such serious impairment.
The video evidence submitted by the
Appellants with respect to the demolition of the cat structure actually
undermines the impact of the written statements made by the complaining
tenants with respect to the demolition incident.
The evidence does, however, ably
demonstrate a generational clash between the Respondents on the one hand and
the Appellants and the other tenants on the other hand.
It would be advisable for the Respondents to adjust their behaviour
to be more respectful and considerate of their fellow tenants and be civil
to their lessors.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
1. The appeal
2. Director's Order LD19-386 is confirmed.
at Charlottetown, Prince Edward Island,
this 13th 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.