Docket A-015-04
Order LR04-12

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Karen Carragher against Order No. LD04-138 of the Director of Residential Rental Property dated June 3, 2004.

BEFORE THE COMMISSION

on Tuesday, the 22nd day of June, 2004.

Maurice Rodgerson, Chair
Norman Gallant, Commissioner
Anne Petley, Commissioner

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Order

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Participants

1.   Appellant:

Karen Carragher
Kim Johnstone, witness

2.  Respondent:

Allan Leard
Representing Alberton Housing Authority

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Reasons for Order

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1.  Introduction

Karen Carragher (Appellant) has appealed Order LD04-138 of the Director of Residential Rental Property issued on June 3, 2004, and relating to premises located at 64 Elder Street, Alberton, PEI.

The Notice of Appeal (Exhibit E-11) was received by the Island Regulatory and Appeals Commission by fax on June 8, 2004.

The appeal arises from the decision of the Director to uphold a Notice of Termination by Lessor of Rental Agreement (Exhibit E-2) served on the Appellant by the Alberton Housing Authority (Respondent).

The hearing was held in the offices of the Prince Edward Island Regulatory and Appeals Commission on Friday, June 18, 2004.

Karen Carragher appeared as the Appellant with witness Kim Johnstone.  Allan Leard represented the Respondent.

2.  Background

The Appellant rented a unit in a duplex managed by the Respondent and located at 64 Elder Street in the Community of Alberton.

The Respondent is the Alberton Housing Authority which operates 22 rental units in the community.  The Housing Authority has a six member Board of Directors, and Mr. Leard is a member of that Board.

The rental agreement commenced on February 1, 2004. 

On March 8^th the Respondent received a complaint from another tenant about excessive noise from the unit occupied by the Appellant. Mr. Leard, on behalf of the Respondent, contacted the Appellant about the matter, but no further action was considered necessary at that time.

April 20, 2004 Mr. Leard received a call from a Housing Officer informing him of a complaint from Ms. Pattie Barrie against the Appellant.  Mr. Leard stated the Housing Officer suggested the Appellant be evicted.  The Board decided to send a warning letter.

Over the following month there were several calls from Ms. Barrie and the RCMP were also called to the unit.

The Housing Authority decided to serve the Appellant a Notice of Termination By Lessor of Rental Agreement (Exhibit E-2).

The Appellant objected to the notice stating the person complaining about the noise was causing most of the noise.  A hearing was held by the Rental Officer and the resulting Order upheld the Notice of Termination.

That decision was appealed to the Commission.

The Appellant did not attend the original hearing, and under normal circumstances would not be eligible to appeal. However, the Commission has been informed the Appellant had to be admitted to hospital the day of the hearing as she had gone into labour.  She was interviewed by the Rental Officer and the arguments she presented in that telephone interview were considered by the Rental Officer in the appealed decision.  Given the circumstances, the Commission finds the Appellant was a participant in the original hearing and is therefore eligible to appeal that decision.

 3.  Decision

The Notice of Termination is valid.

The issue for the Commission to determine is whether the Respondent acted within the provisions of the Rental of Residential Property Act in issuing the Notice of Termination.

The following sections of the Act were considered by the Commission in reaching a decision on this appeal.

11.(1)  A lessee may terminate a rental agreement, by serving on the lessor a notice of termination which complies with section 18.

18. (1)  A lessor and lessee shall give notice to terminate in writing in the form prescribed by regulation.

 

(2)  A notice to terminate

(a) shall be signed by the person giving the notice, or his agent;
(b) shall identify the premises in respect of which the notice is given;
(c)  shall state the date on which the notice is to be effective; and
(d) where notice is given by the lessor, shall state the reasons for the termination. 1988,c.58,s. 18.

14.(1)   The lessor may also serve a notice of termination upon the lessee where

(a) statutory condition 3 or 4, or any other term of rental agreement has been breached, other than failure to pay rent;

(2)   Subject to subsection (3), a notice of termination pursuant to subsection (1) shall

(a) in the case of a month to month or fixed term rental agreement, be served not less than one month before the date on which it is to be effective;
(b) in the case of a week to week rental agreement, be served not less than one week before the date on which it is to be effective.

16.(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.

6.   Notwithstanding any agreement, waiver, declaration or other statement to the contrary, where the relationship of lessor and lessee exists in respect of residential premises by virtue of this Act or otherwise, there shall be deemed to be a rental agreement between the lessor and lessee, with the following conditions applying as between the lessor and lessee as statutory conditions governing the residential premises:

3. Good Behaviour

The lessee and any person admitted to the premises by the lessee shall conduct themselves in such a manner as not to interfere with the possession, occupancy or quiet enjoyment of other lessees.

At the hearing the Appellant stated she planned to move from the unit by the end of June, and the main reason for the appeal proceeding was the opportunity it afforded to correct some of the allegations made about her by the other tenant and the family and friends of that tenant.

Many of the comments and allegations contained in a number of letters and statements filed with the Commission, as well as testimony at the hearing and appeal hearing reflect a high degree of animosity between the Appellant and Ms. Barrie.

Most of the allegations relate to interpersonal relationships that have little bearing on the matter before the Commission, other than to reflect the level of animosity and its impact on the daily lives of tenants.

Many of the statements and allegations relate to matters that are not within the jurisdiction of the Rental of Residential Property Act and therefore were not considered by the Commission in this matter.

However, the Commission does not place all the blame for the animosity on the Appellant.

Far from being a victim, Ms. Barrie appears to the Commission to have contributed to the situation. There is a statement from a third party (Exhibit E-14) which suggests that Ms. Barrie did not always conduct herself in the manner she portrayed in earlier statements and testimony.

What is abundantly clear to the Commission is the fact the Respondent was faced with a problem that could not be ignored.

The Respondent appears to have demonstrated a degree of restraint on the matter, attempting to address the complaints by speaking to the parties, then sending a warning letter to the Appellant, and ultimately serving a Notice of Termination.

That Notice (Exhibit E-2) lists the reason as interfering with the possession, occupancy and quiet enjoyment of other lessees.  It also states "This problem has been discussed with you on several occasions and there seems to be no resolution."

The Act does permit a Lessor to terminate a rental agreement under certain circumstances, and one of those circumstances is a violation of statutory conditions.  As quoted earlier, one of the statutory conditions relates to good behavior and quiet enjoyment.

Faced with the situation, the Commission believes the Housing Authority had no choice but to act.  There were numerous complaints, the police were involved, and the situation was obviously interfering with the quiet enjoyment of tenants.

The Respondent's decision was not that of one lone individual.  In fact there were several meetings of the Board called specifically to discuss this matter, and to decide on a course of action.

The Board reached the conclusion that a notice of termination to the Appellant was appropriate, and having reached that decision followed the provisions of the Act in serving that notice.

The Commission has not been presented with sufficient evidence to vary the Order of the Rental Officer upholding the Notice of Termination.  While some of the arguments presented at the original hearing were diminished by testimony at the appeal hearing there is, in the view of the Commission, sufficient evidence to warrant the Notice of Termination.

The Order is therefore upheld.

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