On July 3, 2020, a tenant named Ze Dai
(the "Respondent") filed with the Office of the Director of
Residential Rental Property (the "Director") an application in respect of a
rental agreement for the premises located at 12F Browns Court in
Charlottetown, PEI (the "Premises"). The Respondent sought an order for: a
finding that rent is owed; a finding that the security deposit should be
returned; an order than an amount found to be owed be paid and an order to
repair the heating system, four windows and clean up bugs in the Premises.
matter was heard by the Director on July 31, 2020. In Order LD20-209 the
Director ordered as follows:
1.The lessor shall pay to the
lessee the sum of $6,376.95 on or before September 15, 2020.
The lessor shall correct the following deficiencies in order
to be in compliance with Section 6.12 of the Act and Section 9. of the
The work to the premises shall be completed as set out below:
Repair the four windows by August 26, 2020;
Repair the heating system by September 4, 2020; and
Repair the bug infestation immediately by
retaining a licensed extermination company.
Effective July 5, 2020 the rent for the premises is reduced
to zero dollars ($0.00).
The rent for the premises shall not be increased until the lessor
completes the window and heating system repairs and the
bugs at the premises have been substantially remediated as set out in
Paragraph 2 and the lessor has obtained an order from the Rental Office
allowing the rent increase."
On August 31, 2020 the Commission received a Notice of Appeal from a
landlord 1340000 Canada Ltd. (the "Appellant"). On September 1, 2020, the
Appellant filed an Amended Notice of Appeal.
The matter was heard by the Commission on October 1, 2020 by way of
telephone conference call. Yunzhen (Wayne) Wei appeared for the Appellant,
and was represented by legal counsel, Lucas MacArthur.
The Respondent participated and was represented by legal counsel,
Appeals to the Commission under the
Act are re-hearings, as stated in
section 26(2). As such, the Commission considered the evidence that was
before the Director, as well as the materials filed and submissions made by
the Appellant and Respondent on appeal.
The Appellant's Position
The Appellant, through his counsel, first argued that the Director
had failed to consider the fact that the Respondent had allegedly been
served with a Notice of Termination ("Form 4") by the Appellant, and as
such, the subsequent application by the Respondent was improperly before the
Director. He argued that the Respondent should have filed an Application to
Set Aside the Form 4, and because he didn't, he was deemed to have accepted
the termination of the rental agreement.
At a minimum, counsel argued, the impact of the Form 4 should have
been considered at the same time as the current application.
Secondly, the Appellant argued that the Director decided the current
application without having ordered or conducting a home inspection, which,
he submitted, constituted a marked departure from normal practice. The
Appellant argued that the fact that the Respondent's allegations regarding
the condition of the Premises were not verified by either the Director, or a
third party at the behest of the Director, should invalidate the Director's
The appeal is denied and Director's Order LD20-209 is confirmed.
The Form 4
There is a dispute between the parties as to whether the Form 4 was
Counsel for the Appellant submitted that his client's agent attempted
to serve the Form 4 on the Respondent on June 30th, 2020. According to the
Appellant, the Respondent was not present and his wife refused to accept it.
The Appellant stated that the following day, July 1, 2020, the Respondent
was home and took a photograph of the Form 4, but did not accept the paper
copy. The Appellant stated the Form 4 was also posted on WeChat on July 2,
Counsel for the Respondent submitted that her client and his family
were away from home from June 29 to July 1, 2020, and not home to accept
service at the time the Appellant alleged his agent had attempted to serve
the document. She submitted that the Form 4 was not served on her client,
and the Director was correct to not rule on the Form 4 as it was simply not
There is no evidence, beyond the assertion of the Appellant, that the
Form 4 was ever served. The screenshot from WeChat provided by the Appellant
does not establish that service was effected, and does not, in any event,
constitute substituted service as defined in section 33(2) of the
The onus rests on the Appellant to establish that service has
occurred, and the Commission does not find that the Appellant has met that
onus. As such, the Commission finds that the Director properly considered
the current application.
Inspection of the Premises
Counsel for the Appellant submitted that the Director should not have
ordered a return of rent without first having conducted an inspection of the
premises. He submitted that the
pictures did not reveal that the windows were broken and there was no
evidence to support a finding that the bugs were present due to any act or
omission by the Appellant.
Counsel for the Appellant maintained that the bugs were brought into the
premises with the Respondent's furniture.
When pictures were taken of the windows in September 2020, the
Appellant submitted they worked properly.
Counsel for the Respondent submitted that the Respondent is not
opposed to a home inspection, but noted that this did not invalidate her
client's position that the Director's Order should be upheld. Further, she
stated that it would be beneficial to have a third party do an inspection of
the Premises to ensure that the issues that were described in the Director's
Order were addressed before her client and his family returned to the
The Commission finds that the Director was not obligated to inspect
the Premises. The Director's Order noted that it had suspended performing
inspections due to the COVID-19 pandemic. Section 4(2)(e) of the
the Director authority to conduct such inspections, but does not mandate
that they must be done in every case.
Notwithstanding this suspension, the record is clear that the
Respondent had communicated complaints about windows, heating issues and
bugs over a considerable time period, commencing in the late fall of 2019
and continuing until the time that the Respondent filed his application.
The response of the Appellant's representative contained in the
record included references to being "too busy" and being unable to respond
due to the COVID-19 pandemic. The references to the COVID-19 pandemic made
throughout February 2020 are suspect as there were no cases of COVID-19 on
Prince Edward Island prior to March 2020 and the "lockdown" did not commence
until mid-March 2020. The Commission finds that the Appellant had ample
opportunity to investigate and rectify the deficiencies but refused to do
Upon being questioned by the Commission as to whether the Appellant's
position was that there was never anything wrong with the premises, i.e.,
that the heating system had always worked and the windows never broken,
counsel for the Appellant responded in the affirmative. The evidentiary
record, showing the numerous times the Respondent contacted the Appellant to
ask that the issues be addressed, makes this position simply not credible.
The evidence at the original hearing satisfied the Director that the
deficiencies existed, and the Commission finds nothing in either the record
or the further evidence and submissions of the Appellant to disturb this
finding. There was ample evidence before the Director that established the
condition of the Premises was problematic.
Commission agrees with the findings and outcome of Director's Order
LD20-209. The Respondent had pre-paid
rent for the Premises which did not meet basic living standards: lack of
heat and insects biting the occupants.
A return of rent and a reduction of rent to $0.00 per month until the
deficiencies were rectified were appropriate in these circumstances.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act
IT IS ORDERED THAT
The appeal is denied.
Director's Order LD20-209 is
at Charlottetown, Prince Edward Island,
Thursday, October 15, 2020.
BY THE COMMISSION:
Panel Chair - Erin T. Mitchell, 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.