Docket A-018-04
Order LR04-16

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Chris Currie against Order No. LD04-199 of the Director of Residential Rental Property dated August 10, 2004.

BEFORE THE COMMISSION

on Wednesday, the 25th day of August, 2004.

Weston Rose, Commissioner
James Carragher, Commissioner
Anne Petley, Commissioner

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Order

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Participants

1.   Appellant:

Chris Currie

2.  Respondents:

Nabih Sahely
Shadi Sahely

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Reasons for Order

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1.  Introduction

Chris Currie (the Appellant) appealed Order LD04-199 (Exhibit E-4) issued by the Office of the Director of Residential Rental Property (the Director) on August 10, 2004.  The Appellant's Notice of Appeal (Exhibit E-5) was received by the Island Regulatory and Appeals Commission (the Commission) on August 11, 2004. 

The Director's Order and this present appeal concern apartment #4 located at 44 Mount Edward Road in Charlottetown (the apartment).

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Monday, August 23, 2004.

2.  Background

The Appellant entered into a verbal month to month rental agreement, to commence in March 2004 with Nabih Sahely (the Respondent). The rent is $495.00 per month, payable on the first day of each month.  A security deposit of $300.00 was paid.

At the hearing, the Commission was informed that the Appellant was permitted to move into the apartment in mid February 2004.

The Respondent did not receive the July rent on July 1, 2004.  The Appellant states at the hearing that he "wasn't motivated" to pay the July rent because of a serious ant problem.  He informed the Respondent that he would pay the July rent following his next payday.  The Respondent issued a Notice of Termination by Lessor of Rental Agreement (Form 4) on July 16, 2004 and posted this Notice on the inside front door of the apartment.  The Appellant submits that he did not receive the Notice until the morning of July 19, 2004 when he found it on the patio floor.  The Appellant believed that the last day to pay the July rent was July 27, 2004 and he paid the July rent on that day. 

On August 5, 2004, the Respondent filed an Application for Enforcement of Statutory or Other Conditions of Rental Agreement (Exhibit E-1).   A hearing was held by the Office of the Director of Residential Rental Property on August 9, 2004 and Order LD04-199 was issued on August 10, 2004. 

3.  Decision

The appeal is denied, for the reasons that follow.

In the Appellant's Notice of Appeal (Exhibit E-5) he states the following reasons for appeal:

I was not served properly with Notice of Termination (Form 4) and I do not feel I was dealt with fairly by the Rentalsman.

Sections 25 and 26 of the Rental of Residential Property Act (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.  

Section 33 of the Act reads as follows:

33. (1) Any notice, process or document to be served by or on a lessor, lessee or the Director or the Commission is sufficiently served if

            (a) delivered personally; or

            (b) sent by ordinary, certified or registered mail

(i) to the lessor at the address given under section 31,

(ii) to the lessee at the address of the premises,

(iii) to the Director at the address of his office;

(iv) to the Commission at the address of its office.

(2)  Where a notice cannot be delivered personally to a lessee by reason of his absence from the premises or by reason of his evading service, the notice may be served on the lessee

(a) by serving it on any adult person who apparently resides with the lessee;

(b) by posting it in a conspicuous place upon some part of the premises or a door leading thereto; or

(c) by sending it by ordinary, certified or registered mail to the lessee at the address where he resides.

(3)   Where a document is delivered by ordinary mail, it is deemed to have been delivered on the third day after the date of mailing. 1988,c.58,s.33; 1991,c.18,s.22 {eff.} Nov. 4/91. (emphasis added)

The Commission notes that the 10 day period to pay outstanding rent as contained in the Notice of Termination by Lessor of Rental Agreement (Form 4) commences from the date of service. In this case, due to the Appellant's absence from the premises, service was commenced by posting as specified in clause 33(2)(b) above.  The Commission finds that the Respondent served the Appellant in accordance with the requirements of the Act.

Subsection 13(2) of the Act reads as follows:

13 (2)  A lessee may, within ten days of being served with a notice of termination under subsection (1) deliver to the lessor all the rent due as of that date, whereupon the notice shall be void.

Subsection 23(5) of the Interpretation Act reads as follows:

(5) In the calculation of time not expressed as clear days, or other period of time not referred to in subsection (4), the first day shall be excluded and the last day included.

With respect to the evidence presented to the Commission concerning the alleged condition of the carpeting in the apartment, the presence of ants and the playing of loud music while the apartment was unoccupied, such information is not relevant to the issue of this appeal.  The issue on this appeal is whether the Appellant voided the Notice of Termination by Lessor of Rental Agreement (Form 4). 

Referring to subsection 13(2) of the Act and subsection 23(5) of the Interpretation Act, the Commission finds that the last day on which the Appellant could have paid his rent and thus voided the Notice of Termination by Lessor of Rental Agreement (Form 4) was July 26, 2004.  As he did not pay the rent until July 27, 2004, the termination is in effect and the Appellant was required to vacate the premises on or before the 5th day of August, 2004.

As the Appellant has apparently not vacated the apartment as of the August 23, 2004 hearing, the Commission orders the Appellant to pay rent for the month of August 2004 in the amount of $495.00 within 24 hours of the issuance of this Order and the Appellant must vacate the apartment on or before August 31, 2004.

With respect to the Appellant's allegations that "I do not feel I was dealt with fairly by the Rentalsman", the first portion of the Appellant's August 9, 2004 email (Exhibit E-3) to the rental officer who conducted the hearing is worthy of note:

"Just wanted to say thanks for presiding in an equally fair way this morning, I apologize if I came across a bit defensive towards the end of the hearing but Mr. Sahely started to make slanderous, defamation of character remarks towards me."

The Commission therefore finds that the Appellant had, in fact, received a fair hearing before the rental officer.

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