On August 7, 2019 the Commission
received a Notice of Appeal from a lessor, Steve A. Vos, (the "Appellant"),
requesting an appeal of Order LD19-310 dated July 19, 2019 issued by the
Director of Residential Rental Property (the "Director").
By way of background:
On March 6, 2019 a lessee, Alison MacKinnon (now known as Alison
Gamble) (the "Respondent") filed with the Director a Form 2 � Application
for Enforcement of Statutory or Other Conditions of Rental Agreement seeking
a finding that the security deposit, or part thereof, should be forfeited or
returned and an order that an amount found to be owed be paid (the "Form
On March 12, 2019 the Director wrote to the Appellant enclosing a
copy of the Form 2 and requesting that the Appellant forward the Notice of
Intention to Retain Security Deposit ("Form 8") pursuant to Sections 10.(4)
and 10.(5) of the
On June 24, 2019 the Director again wrote to the Appellant requesting
that he respond to the Respondent's Form 2 and provide her Office with the
Form 8 pursuant to the
The matter was heard by the Director
on July 16, 2019 and in Order LD19-310 dated July 19, 2019 the Director
"IT IS THEREFORE
The lessor shall pay to the lessee the sum of $611.60 on or
before August 12, 2019."
The Commission heard the appeal on
September 19, 2019. The
Appellant was present. The
Respondent was also present and was accompanied by Ross Gamble.
The Appellant testified that the
premises had just been extensively renovated when the tenancy commenced with
the Respondent in March 2017.
He allowed her to pay the security deposit in installments and the full
security deposit was not paid.
The Appellant testified that the
Respondent gave her notice to terminate the rental agreement in January 2019
and moved out in February 2019.
The Appellant then did an inspection and found more damage than expected
from ordinary wear and tear. He identified specific damage in his testimony.
He submitted that he should not have to repaint an entire unit or
replace a range top after a brief tenancy.
The Appellant acknowledged that he
did not submit the proper form as he was just returning from outside the
Province but he did communicate with the Respondent.
He testified that he did
not think it necessary to file the Form 8 after the Form 2 had been filed by
the Respondent. He acknowledged
that he had not turned in the security deposit but undertook to do so
immediately after the hearing before the Commission.
The Respondent testified that she
got along with the Appellant fairly well during the tenancy.
She stated that she ran a daycare out of the premises as well as
living there. She acknowledged
that she did not pay the full security deposit but provided documentation to
establish that she paid $700.00 towards the security deposit.
The appeal is denied and Director's
Order LD19-310 is confirmed, subject to a variance based on the additional
$100.00 payment towards the security deposit plus interest, to a total sum
The Commission notes that the
Appellant did pay the sum of $712.95 in trust immediately following the
The photographs filed in evidence
before the Commission were of a very poor quality with small, black and
white photocopied images.
Nonetheless, the evidence before the Commission suggests that some damage
did in fact occur beyond ordinary wear and tear for a nearly two-year
On two occasions, the Director wrote
the Appellant requesting that he file a Form 8.
Unfortunately for the Appellant, he failed to file the Form 8.
Section 10.(5) of the
Retention from deposit to
10.(5) The lessor may retain
all or part of a security deposit and interest thereon where he believes the
lessee is liable to the lessor for damage to the residential premises caused
by a breach of statutory condition 4, or for outstanding rent,
provided that the lessor, within ten days of the
date on which the lessee delivers up possession of the residential premises
or such longer period as the Director may permit, serves the lessee with a
notice of intention to retain security deposit in the form prescribed by
Simply put, to retain a security
deposit, a lessor must serve the lessee with the notice of intention to
retain the security deposit in the form prescribed by regulation.
This is not a requirement set by the Director or the Commission.
It is a requirement set by the Legislative Assembly of Prince Edward
While a lessor is ordinarily
required to file such document within 10 days of a lessee giving up
possession, the Legislative Assembly has granted the Director discretion
("such longer period as the Director may permit") to extend the time to file
the form. The letters from the
Director to the Appellant (March 12, 2019 and June 24, 2019) requesting the
filing of the Form 8 make it apparent that the Director was willing to
permit a longer period.
Section 10. of the
Rental of Residential Property Act Regulations
10. Notice of intention to
A notice of intention to
retain all or a portion of a security deposit, pursuant to subsection 10(5)
of the Act, shall be in Form 8. (EC10/89)
The Form 8 document is then actually
attached to the
The Form 8 is not a document created by the Director or the
Commission: rather, it is a document established by the Executive Council
for Prince Edward Island.
Thus, the requirement (for a lessor
seeking to claim all or part of a security deposit) to file a Form 8 is not
a matter of administrative red tape or the Director being difficult or
inflexible. It is a legal
requirement set out in the
and the exact form is set out in the
Regulations made under the
As the Appellant did not file a Form
8 with the Director or the Commission, the Appellant may not retain all or
part of the security deposit.
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 LD19-310 is confirmed,
subject to a variance in the sum to $712.95.
Payment of the sum of $712.95 (currently held in trust) to the
Respondent Alison Gamble, shall occur following the expiry of the
fifteen day appeal period.
at Charlottetown, Prince Edward Island,
this 23rd 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.