On March 11, 2014 the Commission
received a Notice of Appeal dated the same date from a lessee, Paula
MacKinnon (the "Appellant"), requesting an appeal of Order LD14-046 dated
February 18, 2014 issued by the Director of Residential Rental Property (the
By way of background, on December
30, 2013 a lessor, Debbie Dennis (the "Respondent")
filed with the Director a Form 2
Application for Enforcement of Statutory or Other Conditions of Rental
Agreement, together with two (2) Form 4's - Notice of Termination by Lessor
of Rental Agreement one dated November 4, 2013 and the other dated December
The matter was heard by the Director
on January 20, 2014 and in Order LD14-046 the Director ordered:
"IT IS THEREFORE ORDERED THAT
Possession of the residential premises be surrendered to the lessor and the
Sheriff is directed to put the lessor in possession of the residential
premises at 12:00 noon, Monday, February 24, 2014."
The matter was heard by the
Commission on March 24, 2014.
The Appellant was present. The
Respondent was present and was represented by legal counsel, Ryan Gallant.
Christine Crain testified on behalf of the Respondent.
The Appellant filed an extensive
written submission (Exhibit E-31).
The Appellant reviewed her written submission in her evidence and
argument before the Commission.
Mr. Gallant submitted that the
Appellant has been in arrears of rent since December 2013.
Mr. Gallant submits that the Appellant currently owes the Respondent
$1600.00 representing two months' rent.
Mr. Gallant requests that the Commission uphold the Director's
decision to terminate the rental agreement.
The Commission denies this appeal
for the reasons that follow.
The pith and substance of the
Appellant's argument is that the Director's decision to terminate the rental
agreement should be overturned as clause (f) of section 8 of the
Rental of Residential Property Act (the
Act) gives the Director and the Commission
equitable authority to allow the continuation of a rental agreement, where
appropriate circumstances exist, even where there has been a breach of the
rental agreement which would, at law, require the termination of the rental
agreement. The Appellant is also
submitting that the specific facts of her case provide appropriate
circumstances for the Director at first instance and the Commission on
appeal to exercise such equitable jurisdiction.
The Appellant referred the Commission to subsection 70(6) of the
Residential Tenancies Act, 2006 of the Province of Saskatchewan (the
Saskatchewan Act). The Appellant
also referred the Commission to Williams v. Elite Property Management Ltd,
2012 SKQB 215 (Williams).
Section 8(f) of the
8. Where a lessor or lessee fails to
comply with a statutory condition or any other condition or covenant of a
rental agreement, a person may make written application to the Director
indicating the condition or covenant alleged to have been contravened and
seeking a remedy, and the Director shall investigate the matter and may
(f) make such other decision or
order as he considers necessary to ensure compliance with, or to remedy a
violation of, this Act or the rental agreement.
Emphasis added by the Commission.
Subsection 70(6) of the Saskatchewan
Act reads as follows:
70(6) After holding a hearing
pursuant to this section, a hearing officer may make any order the hearing
officer considers just and equitable in the circumstances, including all or
any of the following:
(a) an order directing any person
found contravening or failing to comply with a tenancy agreement, this Act,
the regulations or an order made pursuant to this Act to stop that
contravention or failure and to so comply;
(b) an order requiring a tenant to
pay to the director all or any part of any instalment of rent otherwise
payable to the landlord;
(c) an order requiring the payment
(d) subject to section 68, an order
granting possession of a rental unit;
(e) an order determining the
disposition of a security deposit and any accrued interest pursuant to
Emphasis added by the Commission.
In Williams, Justice Danyliuk of the
Saskatchewan Court of Queen's Bench noted that the tenant in that case had
paid all of her rental arrears prior to a hearing before a hearing officer.
The landlord had sought an order of possession based solely on
arrears of rent in the amount of $367.00 and no other grounds were listed.
Justice Danyliuk stated in paragraph 23:
The tenant's case is stronger here.
The arrears were paid in full and accepted by the landlord before the
hearing was held.
At the opening
of the hearing, the hearing officer was faced with the prospect that an
application for possession was being sought based solely on arrears of
$367.00 when those arrears were paid.
At that point, the hearing officer erred.
He ought to have considered whether he had jurisdiction.
He did not do so.
Justice Danyliuk went on to consider
the wording set out in subsection 70(6) of the Saskatchewan Act:
The relief specified in (a) through (e) is not exhaustive.
Given the language in the preamble of s.70(6), it is clear that the
legislature conferred a wide plenary jurisdiction upon hearing officers and
intended the specified relief to be illustrative.
The key operative words in s.70(6) are "just and equitable in the
Hearing officers have been given significant discretion to invoke
equitable principles and considerations.
Armed with such jurisdiction, it is incumbent upon hearing officers
both to consider whether to use it and, if so, to use it in a judicial
It appears the hearing officer in this case neither considered that
he had equitable jurisdiction nor considered whether the existing
circumstances should impel him to use it.
Turning to the present appeal and
Act which applies in the Province of Prince Edward Island, the operative
words of section 8(f) are "...ensure compliance with, or to remedy a
violation of, this Act or the rental agreement".
Section 8(f) is concerned with ensuring compliance with, and
fashioning a remedy within, the wording of the statute.
It does not make any reference to "equitable" or "equity".
It does not make any reference to "circumstances".
In the Commission's opinion, section 8(f) does not grant equitable
jurisdiction. In fact, the
Commission cannot find any reference to equity or equitable jurisdiction
anywhere in the
The Director and the Commission are
creatures of statute. Their
authority comes from the applicable statute.
Unlike the case in the Province of Saskatchewan, in the Province of
Prince Edward Island the applicable statute does not grant either the
Director or the Commission with equitable jurisdiction.
In the present appeal, the Appellant
and Respondent appeared before the Director, specifically one of her rental
officers. At the time of the
hearing, the Appellant was prima facie [at first sight] one month in
arrears. All the factual
ingredients required to crystalize the legal basis behind the Form 4 Notice
of Termination had occurred. The
Act does not grant the Director, her rental officers or the Commission
equitable jurisdiction. The
Director and her rental officers lack the equitable "toolkit" that their
colleagues in Saskatchewan have.
The Appellant advanced several
arguments relating to the Form 4 served by the Respondent.
The Appellant believes that the payment of $800.00 rent on January 9,
2014 and its acceptance by the Respondent quashed the Form 4 filed in early
December 2013 because the only reference on the from was to the failure to
pay rent due on December 1, 2013.
The Commission must again abide by
the wording of the legislation as it exists in Prince Edward Island.
The option to have the Notice of Termination invalidated required the
rent to be paid in full within ten days. It was not. In fact the Appellant
continues to be in arrears on rent. The Commission therefore rejects this
argument. The Form 4 before the
Commission was signed and date stamped as received by the Office of the
Director. It is accepted by the Commission as valid.
The Commission finds that the Director's rental officer made the only decision
he had authority to do; terminate the rental agreement once the Notice of
Termination had crystalized. The
Commission is likewise bound and accordingly, the appeal is denied.
pursuant to the
Island Regulatory and Appeals Commission
Act and the
Rental of Residential Property Act;
IT IS ORDERED THAT
1. The appeal
2. Possession of the
residential premises shall be surrendered to the Respondent (lessor) and
the Sheriff is directed to put the Respondent (lessor) in possession of
the residential premises at 12:00 noon, Tuesday, April 15, 2014.
at Charlottetown, Prince Edward Island,
the 2nd day of April 2014.