Docket A-011-05
Order LR05-09

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Charles Mills against Order No. LD05-231 of the Director of Residential Rental Property dated August 23, 2005.

BEFORE THE COMMISSION

on Thursday, the 13th day of October, 2005.

Weston Rose, Commissioner
Norman Gallant, Commissioner
Anne Petley, Commissioner

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Order

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Participants

1.   For the Appellant:

Charles Mills

2.  For the Respondent:

Mary MacLean

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Reasons for Order

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1.  Introduction

Charles Mills (the Appellant) appealed Order LD05-231 (Exhibit E-10) issued by the Office of the Director of Residential Rental Property (the Director) on August 23, 2005.  The Appellant's Notice of Appeal (Exhibit E-11) was received by the Island Regulatory and Appeals Commission (the Commission) on September 8, 2005. 

The Director's Order and the present appeal concern apartment #2 located at 46 Prince Street in Charlottetown (the Apartment).

The appeal was heard in the Commission's main hearing room in Charlottetown, Prince Edward Island on Tuesday October 4, 2005.

2.  Background

The parties entered into a written rental agreement for the apartment with a monthly rent of $650.00 commencing May 1, 2004.  Mary MacLean (the Respondent) paid a security deposit of $650.00.  The Appellant terminated the rental agreement with the Respondent by filing a Notice of Termination by Lessor of Rental Agreement (Form 4) dated October 7, 2004 with an effective date of October 28, 2004.   

On February 16, 2005, the Respondent filed an Application For Enforcement of Statutory or Other Conditions of Rental Agreement (Form 2) pursuant to section 8(d.1) of the Rental of Residential Property Act (the Act). 

The Director held a hearing on June 8, 2005 pursuant to section 4(2)(d) of the Act.  On August 23, 2005 the Director, in Order LD05-231, ordered that the Respondent receive a payment of $654.00 as a return of the security deposit plus interest.

3.  Decision

The appeal is denied for the reasons that follow.

In the present case, the Appellant placed great emphasis on the notion that he should retain the damage deposit to compensate him for the loss of income incurred while the apartment was unoccupied after the Respondent moved out. The Appellant submitted that the Respondent breached the rental agreement by subletting the apartment without his permission, keeping pets there, permitting noise and leaving garbage at the apartment.  The Appellant also argues that the Respondent was slow to apply for a return of the security deposit and the Director ought not to have extended the time period as the doctrine of "latches" applies.

 Subsection  10(5) of the Act reads as follows:

10(5)  The lessor may retain all or part of a security deposit and interest thereon where he believes the lessee is liable to the lessor for damage to the residential premises caused by a breach of statutory condition 4, or for outstanding rent, provided that the lessor, within ten days of the date on which the lessee delivers up possession of the residential premises or such longer period as the Director may permit, serves the lessee with a notice of intention to retain security deposit in the form prescribed by regulation. 1998,c.100,s.2.

The Commission finds that the wording of subsection 10(5) is clear.  A damage deposit may be retained for damage or for outstanding rent.  The Act does not provide for a claim for loss of future rental income.  The Commission does not have the jurisdiction to amend or construe the Act to provide the Appellant with a statutory remedy for loss of future income.  Further, the Commission does not have the jurisdiction to grant the Appellant any remedies not set out in the Act even if such remedy might be available at common law.  Accordingly, the Appellant's claim for loss of rental income is rejected.

With respect to the Director's decision to extend the time period to allow the Respondent to apply for a return of the security deposit, subsection 10(7) of the Act reads as follows:

10(7)   A lessee served with a notice under subsection (5) may, within fifteen days of the date of service or such longer period as the Director may permit, apply to the Director in the form prescribed by regulation for a determination on the disposition of the security deposit, in which case he shall serve a copy of the application on the lessor. 1998,c.100,s.2.

The Commission finds that subsection 10(7) provides the Director with the discretion to permit a lessee to file the notice beyond the fifteen day time period.  The Act does not require the Director to give reasons for exercising her discretion or otherwise fetter said discretion.  Accordingly, the Commission rejects the Appellant's argument that the appeal should be allowed on the basis that the Director should not have extended the time period.

Upon a review of the evidence, the Commission finds that there is insufficient evidence to support a claim by the Appellant for damage caused to the apartment.  In the present case, there are no photographs, before and after checklists or sworn (or affirmed) testimony to support the Appellant's claim for damage to the apartment.  The onus is on the Appellant to establish his case with the documentation and witnesses that he wishes to call.  It is not the role of the Commission to call witnesses or conduct an investigation to assist the parties.  Rather, the Commission's role is to hear the evidence brought forward by the parties and render an impartial decision.

Accordingly, the appeal of Order LD05-231 is hereby denied. 

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