Docket LR08019
Order LR09-01

IN THE MATTER of an appeal, under Section 25 of the Rental of Residential Property Act, by Todd Munn against Order No. LD08-434, of the Director of Residential Rental Property, dated November 24, 2008.

BEFORE THE COMMISSION

on Monday, the 5th day of January, 2009.

Maurice Rodgerson, Chair
Brian J. McKenna, Vice-Chair

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Order

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On December 8, 2008, the Commission received a Notice of Appeal filed by the Appellant Todd Munn (Mr. Munn).  Mr. Munn appealed Order No. LD08-434 issued by the Office of the Director of Residential Rental Property (the Director) on November 24, 2008.

At issue is whether Mr. Munn may appeal Order LD08-434 pursuant to the right of appeal under the Rental of Residential Property Act (the Act).  Subsection 25(1) of the Act reads 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. [Emphasis added]

The Commission has had the opportunity to review the file provided by the Director.

The Commission finds that Mr. Munn was not present at the hearing before the Director held on August 12, 2008.  Further, the Commission finds that Mr. Munn was not represented at the hearing before the Director. 

Subsection 25(1) of the Act provides a conditional right of appeal.  The right to appeal is available only if the appellant was present or was represented at the hearing before the Director.

In his Notice of Appeal, Mr. Munn indicated that the rental officer did not call to hold a hearing over the telephone.  In response, the Director filed an affidavit from the rental officer.  The Commission provided Mr. Munn with a copy of the affidavit and invited Mr. Munn to file a written response with a deadline of 4:30 p.m. Monday, December 22, 2008.  Mr. Munn attempted to email his response the day after the deadline; however the Commission did not receive this email.  Mr. Munn then faxed the body of the email to the Commission on Monday December 29, 2008.

In his response filed after the deadline, Mr. Munn asserted that he had an agreement with the Director for him to be called if he is not present at a hearing and for the hearing to be conducted over the telephone.  However, Mr. Munn did not provide any objective evidence that such an agreement exists.

The December 16, 2008 affidavit of Shayne Hogan, rental officer, states in part that Mr. Hogan had no contact with Mr. Munn, prior to the August 12, 2008 hearing, requesting participation by telephone of Docket 08-261 Milligan v. Munn.  The affidavit also noted that there is no standing arrangement between Mr. Munn and Mr. Hogan to contact Mr. Munn to participate in a rental hearing by telephone.

There is no evidence before the Commission that there was an actual agreement between the Director and Mr. Munn requiring the Director or a rental officer to call Mr. Munn upon his failure to attend a hearing and offer to allow him to participate by telephone. 

As Mr. Munn was neither present at the August 12, 2008 hearing before the Director nor represented at that hearing, subsection 25(1) of the Act does not provide him with a right of appeal and this appeal is hereby dismissed.