Docket A-002-04
Order LR04-02

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Doug and Tanis Parker against Order LD04-044 of the Director of Residential Rental Property dated February 12, 2004.

BEFORE THE COMMISSION

on Tuesday, the 9th day of March, 2004.

Weston Rose, Commissioner
Brian McKenna, Vice-Chair
Anne Petley, Commissioner

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Order

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Participants

1.   Appellants:

Doug and Tanis Parker

2.   Respondent:

Slemon Park Corporation
Agent: Barb Poirier

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Reasons for Order

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1.  Introduction

Doug and Tanis Parker (the Appellants) appealed Order LD04-044 (Exhibit E-34) issued by the Director of Residential Rental Property (the Director) on February 12, 2004.  The Appellant's Notice of Appeal (Exhibit E-35) was received by the Island Regulatory and Appeals Commission (the Commission) on February 18, 2004.

The Director's Order and this present appeal arise from a Notice of Termination by Lessor of Rental Agreement issued by the Slemon Park Corporation (the Respondent) for a rental unit located at 466 Fourth Street in Slemon Park, Prince Edward Island.

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Wednesday, March 3, 2004.

2.  Background

The Appellants, as lessees, entered into a rental agreement with the Respondent, as lessor, on October 1, 2001 to rent the premises located at 466 Fourth Street. 

In April 2003, July 2003, November 2003 and February 2004 the Respondent issued a Notice of Termination of Rental Agreement (Notice) to the Appellants.  In each Notice, the Respondent alleged that the Appellants were habitually late in paying rent due on the first day of the applicable month.

On February 4, 2004 the Respondent filed an application pursuant to subsection 13(3) of the Rental of Residential Property Act (the Act), R.S.P.E.I. 1988, Cap. R-13.1, for an order to terminate the rental agreement on the basis that the Appellants are persistently and/or habitually late in the payment of rent.   A hearing was held before the Director on February 10, 2004, pursuant to paragraph 4(2)(d) of the Act. 

In the Director's Order, issued February 12, 2004, the Director found that the Appellants had been persistently and habitually late in the payment of rent on a number of occasions since entering into the rental agreement in 2001.  The Director found that the Respondent had established just cause for the termination of the rental agreement effective February 24, 2004.

The Appellants appealed the Director's Order to the Commission.

3.  Decision

The appeal is denied.

In this matter the Commission must first satisfy itself that the reasons for the order to terminate the rental agreement were valid, and secondly that the Director acted in accordance with the provisions of the Act in issuing Order LD04-044.

The Appellants have failed to provide sufficient evidence to support their request to have Order LD04-044 reversed or varied.  The Commission is satisfied the reasons to terminate the rental agreement were valid and the Order was issued in accordance with the provisions of the Act.  Accordingly, the Commission confirms the decision of the Director in Order LD04-044.

Sections 25 and 26 of the Act read as follows:

25. (1) Any party to a decision or order of the Director, if the party has appeared or been represented at the hearing before the Director, may appeal therefrom by serving on the Commission, within twenty days after receipt of the decision or order of the Director, a notice of appeal in the form prescribed by regulation.

(2) Appeals made to the Commission shall be heard by it within thirty days of receipt of the appeal.

(3) Where an appeal is not made under subsection (1), the parties are deemed to have accepted the decision of the Director and the decision is final. 1988,c.58,s.25; 1990,c.53,s.7; 1991,c.34,s.1,2; 1991,c.18,s.22 {eff.} Nov. 4/91.

26. (1)  An appeal to the Commission shall be by way of a re-hearing, and the Commission may receive and accept such evidence and information on oath or affidavit as in its discretion it considers fit and make such decision or order as the Director is authorized to make under this Act.

(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. 1988,c.58,s.26; 1990,c.53,s.8; 1991,c.18,s.22 {eff.} Nov. 4/91. 

Subsection 13(3) of the Act reads as follows:

13(3)  Where a lessee is persistently or habitually late in the payment of rent the lessor may apply to the Director for such order, including termination of the rental agreement as the Director considers just.

The Appellants submitted that the Director's Order gave them insufficient time to find a new home and move out of the premises.  The Appellants acknowledged that they were late paying the rent on several occasions but explained that this occurred when Mr. Parker did not have work.  The Appellants stated that the premises would be vacated effective Sunday March 7, 2004.

Upon a review of the evidence and upon hearing the parties, the Commission finds that the Appellants were persistently or habitually late in the payment of rent and the Director was acting within the Act in issuing Order LD04-044.  The Commission therefore has no basis to set aside this Order and this Order is hereby confirmed.

The Commission sympathizes with the Appellants concerning their past employment situation.  However, under the rental agreement and under the Act, a lessee is obligated to pay rent to the lessor on time.  No exemption is provided.

The Appellant asked the Commission why he should have to pay the full charges for a NSF cheque when payment was provided later that month.  While the Appellant may wish to ask a bank employee that question, the Commission understands that NSF charges are levied by the bank and are incurred in full regardless of how promptly the NSF cheque is replaced. 

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