Docket A-013-02
IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Don Wright against Order No. LD02-216 of the Director of Residential Rental Property dated October 15, 2002.
Order LR02-12BEFORE THE COMMISSION
on Wednesday, the 4th day of December, 2002.
Maurice Rodgerson, Panel Chair
Weston Rose, Commissioner
Anne Petley, Commissioner
Order
Participants1. Appellant:Don Wright
2. Respondent:
Mel Singh-O'Bryan
Reasons for Order
1. Introduction
This appeal relates to rental property located at 299 Fitzroy Street in Charlottetown, and the eviction of the Lessee from the rooms he occupied at that residence. The original order was issued on October 15, 2002, and the appeal was filed on October 16, 2002.
2. Background
The appeal hearing commenced on November 6, 2002, and was adjourned because the Lessee was in hospital. Attempts were made to reschedule the hearing, one of which was postponed at the request of the Lessor. The appeal hearing was finally set for November 22, 2002.
The Lessor informed the Commission he would not be attending the hearing, stating he had been assaulted by the Lessee and as a condition of release from custody the Lessee had agreed to stay away from the Lessor and the premises.
The Lessor did file several items with the Commission for consideration at the appeal hearing (Exhibits E-13 to E-22).
Although he no longer lives at the residence, and has agreed to stay away from the Lessor, the Lessee requested that the hearing proceed.
3. Decision
In cases of such disputes it is rare that one side is completely right or wrong and the Commission respects the views and opinions expressed by the Lessee and the conviction with which he holds and expresses those views. However, many of the matters raised during his testimony at the appeal hearing are well beyond the scope of the Rental of Residential Property Act and beyond the jurisdiction of the Commission.
The Commission is a creature of statute and must therefore confine itself to the matters under its jurisdiction and the law as it pertains to the appeal of Order LD02-216 (Exhibit E-7).
Issues relating to heat, telephone and other services as outlined in the Lessees' written submission (Exhibit E-2) and repeated in several other documents, and at the appeal hearing are matters that can not be addressed in this forum. The Lessee could have raised such concerns while in the residence and sought relief from the Director of Residential Rental Property. While these factors may have contributed to the deterioration of the rental relationship they are points that would have more relationship to the Lessee seeking an Order from the Commission rather than the Lessee opposing termination of the rental agreement. As well, life style issues are also beyond the scope of this hearing.
The issue is an appeal of an Order of Delivery of Possession.
Section 16 (1) of the Rental of Residential property Act states:
(1) A lessee who has received notice of termination for any of the reasons set out in section 13, 14 or 15 may apply to the Director for an order setting aside the notice.
(2) An application under subsection (1) shall be made by a lessee not later than ten days after being served with the notice.
In this matter the evidence indicates the Lessee did not apply to the Director to have the notice set aside, and Section 16 (3) states:
(3) Where the lessee does not bring an application to set aside the notice, he shall be deemed to have accepted the termination on the effective date of the notice.
While the Lessee and Lessor disagree on the date the notice (Exhibit E-1) was served, the fact that a notice was served is not disputed. The notice conforms to the requirements under Section 18 of the Rental of Residential Rental Property Act.
The Lessor states the notice was served on August 29, 2002 and the Lessee states it was September 1, 2002. However, the notice is dated August 29, 2002 and the effective date was September 30, 2002; therefore, the Commission is satisfied the notice meets the one month notice requirement of the Act.
The Commission notes that because the notice was not contested, the Lessee gave up his right to test the grounds upon which the termination was being sought. The notice was properly served under the Act, and by not exercising his right under the Act to seek to have the termination set aside, the lessee is deemed to have accepted the notice.
On October 2, 2002 the Lessor filed a Form 2 (Application for Enforcement of Statutory or Other Conditions of Rental Agreement) seeking that possession of the residential rental premises be surrendered to the Lessor.
The resulting Order indicated the premises were to be surrendered on October 17, 2002.
In the Notice of Appeal (Exhibit E-8) the Lessee outlines the reasons for appeal. The Commission will address each of the general points raised.
The rent for October does not constitute a rental agreement because the rental agreement had been terminated. However the Lessor is entitled to rent for the period of time the Lessee continued to occupy the premises.
The appeal to the Human Rights Commission does not alter the requirements under the Rental of Residential Property Act, and the Commission does not have the power to waive the ten day requirement for seeking to have the termination set aside.
On the matter of justice, truth and finances the points raised in regard to these matters by the Lessee do not alter the inability of the Commission to overturn the specifically stated requirements of the Rental of Residential Property Act.
The Commission also notes that the Lessee signed an Undertaking Given to a Peace Officer or an Officer in Charge (Exhibit E-24) dated November 15, 2002 in which the Lessee agreed to "refrain absolutely from any contact with Mel Singh O'Bryan by person, phone or otherwise" and to "stay away from 297 and 299 Fitzroy St., Charlottetown." Such an undertaking would obviously prevent the Lessee from occupying the premises.
The Lessor states he obtained possession of the rooms on November 15 (Exhibit E-12).
As the Lessee signed the Undertaking (Exhibit E-24) on November 15, 2002, the Lessee is responsible for rent until that date, after which he could no longer occupy the unit.
The Commission finds that the Lessor is entitled to rent for the first 15 days in November. The monthly rent was $280 (Exhibit E-1 and Exhibit E-2), therefore rent in the amount of $140 may be retained by Lessor. It is the Commission's understanding the rent was paid by the Department of Health and Social Services. Therefore the balance of rent for the month of November is to be refunded to Social Services, and credited ($140) towards the account of the Lessee.
Order
WHEREAS Don Wright filed an appeal against a decision of the Director of Residential Rental Property on October 16, 2002;
AND WHEREAS the Commission heard the appeal in Charlottetown on November 22, 2002;
NOW THEREFORE, for the reasons given in the annexed Reasons for Order;
IT IS ORDERED THAT
- The appeal is denied;
- Order LD02-216 is upheld and the rental agreement is terminated;
DATED at Charlottetown, Prince Edward Island, this 4th day of December, 2002.
BY THE COMMISSION:
Maurice Rodgerson, Panel ChairWeston Rose, Commissioner
Anne Petley, Commissioner
NOTICE
Sections 26.(2), 26.(3), 26.(4) and 26.(5) of the Rental of Residential Property Act provide as follows:
(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.