Docket LR08-018
Order LR08-17

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by James Cahill against Order No. LD08-403 of the Director of Residential Rental Property, dated October 29, 2008.

BEFORE THE COMMISSION

on Friday, the 28th day of November, 2008.

John Broderick, Commissioner
David Holmes, Commissioner
Gordon McCarville, Commissioner

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Order

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On October 30, 2008, the Commission received a Notice of Appeal filed by the Appellant James Cahill (Mr. Cahill).  Mr. Cahill appealed Order No. LD08-403 issued by the Office of the Director of Residential Rental Property (the Director) on October 29, 2008.  

This appeal proceeded to a hearing before the Commission on November 24, 2008.  Mr. Cahill represented himself at the hearing.  Alexander MacKay (Mr. MacKay) represented the Respondents Joe and Gail Crossman.

At the outset of the hearing, the Commission identified a preliminary matter concerning the Commission's jurisdiction to hear the appeal.  Specifically, the Commission noted that Mr. Cahill was served with a Form 4 Notice of Termination by Lessor of Rental Agreement (Form 4) on September 23, 2008. Mr. Cahill's Form 6 Application by Lessee to Set Aside Notice of Termination (Form 6) was not filed until October 7, 2008, the 14th day following service of the Form 4.

Section 16 of the Rental of Residential Property Act, R.S.P.E.I. 1988, Cap. R-13.1(the Act) reads as follows:

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.

(2)  An application under subsection (1) shall be made by a lessee not later than ten days after being served with the notice.

 (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.

(4)   The lessee shall serve the lessor with a copy of an application of the lessee under subsection (1). 1988,c.58,s.16; 1990,c.53,s.6.

         Emphasis added.

The Commission invited submissions from the parties concerning the preliminary matter.

Mr. Cahill told the Commission that he thought that he had 30 days to file the Form 6.  Mr. MacKay told the Commission that he gave the Form 4 to Mr. Cahill on September 23, 2008 but Mr. Cahill refused to accept the document.  Mr. MacKay then placed the Form 4 in Mr. Cahill's mailbox.

The Commission finds that as Mr. Cahill did not file the Form 6 until the 14th day following service of the Form 4, he is deemed under subsection 16(3) of the Act to have accepted the termination on the effective date of the Form 4 notice of termination. 

Accordingly, the Commission does not have the jurisdiction to hear this appeal.

As a result, Order LD08-403 remains in full force and effect.

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