On September 23, 2019 the Commission
received a Notice of Appeal from a lessee, Tamara MacDonald (the
"Appellant"), requesting an appeal of Order LD19-427 dated September 18,
2019 issued by the Director of Residential Rental Property (the "Director").
By way of background, on June 18,
2019 the Appellant filed with the Director a Form 2 - Application for
Enforcement of Statutory or Other Conditions of Rental Agreement believing
that Statutory Condition 6.9 of the Act, relevant to quiet enjoyment, has
been contravened and seeking a return of rent in the amount of $5,000. The
Appellant is seeking remedy by way of an Order that an amount found to be
owed be paid.
The matter was heard by the Director
on August 20, 2019 and in order LD19-427 the Director ordered:
"IT IS THEREFORE
The lessee's application for return of rent is dismissed."
The Commission heard the appeal on
October 22, 2019. The Appellant
was present and was accompanied by Frank Morrison ("Mr. Morrison").
Pam Hall ("Ms. Hall") testified for the Appellant. The lessor,
Charlottetown Area Housing Authority (the "Respondent") was represented by
Doug Allen ("Mr. Allen") and Erin Donnelly ("Ms. Donnelly").
The Appellant testified that she is
asking for a return of rent in the sum of $5000.00 based on a loss of quiet
enjoyment. She testified in
detail concerning the impact that the smoking of other tenants and other
tenant behaviour had on her. She
stated that she endured these conditions for seven years and no human being
should have to endure such conditions.
She testified that she did not get a response to her emails to the
The Appellant testified that,
following the hearing before the Director, the Respondent moved her into a
unit in a duplex. She testified
that while she is happy to be living in her new unit she is concerned that
some of the problems associated with other tenant behaviour followed her to
her new unit.
Ms. Hall testified as a witness for
the Appellant. Ms. Hall
testified that she met the Appellant while doing advocacy work with the
Appellant with respect to public smoking. Ms. Hall testified that there is
no right to smoke in Canadian law.
She submitted that non-smokers have a right to clean air and persons
with environmental sensitivities and disabilities are to be accommodated.
She referenced human rights and the United Nations in her remarks.
When questioned, Ms. Hall
acknowledged that she had never visited the Appellant at her residential
premises at 407 Queen Street.
She stated that her reason for not visiting the residential premises was
that it was "unsafe".
Mr. Morrison testified with respect
to smoke free advocacy, identifying the tobacco industry as the "enemy",
referencing the World Health Organization, and the need to protect citizens
from harmful second hand smoke.
Mr. Morrison stated that an air
exchanger would not be effective.
Mr. Morrison acknowledged that
Prince Edward Island Smoke Free Places Act does
not cover a private residence, including an apartment complex.
Mr. Allen testified that the
Respondent is bound by existing lease agreements and thus the Respondent can
only move over time to fully smoke free apartment buildings.
He explained that when an apartment unit (where smoking occurred) is
vacated that unit then becomes smoke free by way of the new rental agreement
prohibiting smoking in the unit.
He stated that all common areas are smoke free.
Mr. Allen stated that he was advised
not to participate in an ongoing email exchange but the Respondent's staff
did respond to the complaints.
He submitted that the Appellant was offered an air filtration system and an
individual unit air exchanger but refused these measures.
He testified that the Respondent was ultimately successful in finding
a new residential unit for the Appellant.
The Commission denies the appeal and
confirms Director's Order LD19-427.
While the rental agreement between
the parties is not contained in the evidence before the Commission,
it appears that the Appellant lived for six years (per the Director's
Order) or seven years (per the Appellant's testimony before the Commission)
in 407 Queen Street which is an apartment complex operated by the
It is the testimony of Mr. Allen
that some of the units at 407 Queen Street were smoking units as permitted
by the rental agreements for those particular units.
He explained that as these units are vacated their status changes to
non-smoking units with new rental agreements reflecting this new status.
The apartment complex is thus transitioning to a non-smoking building
and no smoking is permitted in common areas.
The record before the Commission
includes Exhibit E-9 which contains some 72 emails from the Appellant
raising concerns about her apartment.
These emails began in March 2018 continuing for the final year and a
half of the Appellant's tenancy at 407 Queen Street.
Thus, the evidence of the Appellant's documented concerns began
Exhibit E-25 contains an email from
Ryan Neale, Manager of Environmental Health with the Chief Public Health
Office, Department of Health and Wellness.
In Mr. Neale's email of July 18, 2019 he states:
During my conversation with
Erin [Ms. Donnelly] on May 22, 2019, she advised that the following actions
were taken in response to the concerns reported by Tamara MacDonald at 407
-CAHA [the Respondent] hired a
contractor to service the ventilation system;
-CAHA offered to provide an
airpurifier for Tamara's unit;
-CAHA offered to install an independent
venmar system in Tamara's unit.
opinion these were reasonable actions to take in an effort to alleviate the
tenant's concerns regarding the smell of smoke in her unit.
It is the testimony of both parties
that the Respondent has recently relocated the Appellant to a new unit in a
The Commission's jurisdiction in
this appeal is restricted to the
Rental of Residential Property Act.
The Commission finds that the
Appellant claimed a loss of quiet enjoyment and the Respondent took action
to service the ventilation system and offered to take action to improve the
air quality in the Appellant's apartment.
The Respondent then took the step of providing the Appellant with a
non-smoking unit in a two-unit building.
These actions were a reasonable response to the Appellant's concerns.
As the Appellant's concerns about
quiet enjoyment were adequately addressed by the Respondent, the Commission
denies the appeal and confirms Director's Order LD19-427 dismissing the
application for a return of rent.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
1. The appeal
Director's Order LD19-427
at Charlottetown, Prince Edward Island,
this 30th day of
John Broderick, Commissioner
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.